Gordon v. United States, 10275.

• Decision Date: 08 December 1947
• Docket Number: No. 10275.,10275.
• Citation: 164 F.2d 855
• Parties: GORDON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

164 F.2d 855 (1947)

GORDON v. UNITED STATES.

No. 10275.

Circuit Court of Appeals, Sixth Circuit.

December 8, 1947.

Donald B. Frederick, of Detroit, Mich., and William J. Corrigan, of Cleveland, Ohio (James E. Haggerty and Donald B. Frederick, both of Detroit, Mich., and Charles I. Russo, of Cleveland, Ohio, on the brief), for appellant.

Thomas P. Thornton, of Detroit, Mich. (Joseph C. Murphy, of Detroit, Mich., on the brief), for appellee.

Before SIMONS, ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

The appellant was convicted under an indictment containing two counts, the first of which charged conspiracy to violate § 415 of the National Stolen Property Act, Title 18 U.S.C. § 413 et seq., 18 U.S.C.A. § 413 et seq. The second count charged violation of the same section by unlawfully transporting in interstate commerce stolen goods, wares and merchandise of the value of $5,000 or more.

The pertinent portions of the statutes involved read as follows:

Section 415.

"Whoever shall transport or cause to be transported in interstate or foreign commerce any goods, wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen, feloniously converted, or taken feloniously by fraud or with intent to steal or purloin, knowing the same to have been so stolen, feloniously converted, or taken * * * shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both. * * *"

Section 418a.

"If two or more persons enter into an agreement, confederation, or conspiracy to violate any provision of sections 413-419 of this title, and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as hereinbefore provided by sections 413-419 of this title."

The conviction was based principally upon the testimony of Herman Frank Banning, a co-defendant under the indictment. The period charged in the conspiracy count was January 1, 1940, to May 1, 1941. Banning testified that he took part, with various others, in approximately 25 robberies of jewelry salesmen in different parts of the country, ranging from Texas to Michigan, from Iowa through Missouri, Illinois and Indiana to Ohio, between 1937 and May 1, 1941. The time and place in each instance was specified. Some of the robberies were previous to, and some of them occurred during the period charged in the indictment. Banning's usual companions in these robberies were Jimmy Robinson, alias Russell, and Howard Graves, but at times he was assisted by James Williams, Russell Husten and Tony Petrilli. In the specific felony charged in the substantive count he was assisted by Howard Graves, Abe Zussman, and Bernard Sidran, co-defendants with appellant herein. The action as to Bernard Gridley, also a co-defendant, was dismissed at the end of the trial.

Banning stated that the stolen jewelry was generally taken to Chicago to be sold to the appellant who negotiated a price and paid for it, and that appellant also gave material assistance to the general operations of the jewelry thieves. Among other circumstances indicating appellant's active participation in the scheme, Banning declared that appellant advanced expenses for these trips and aided the confederates in securing motor cars which were essential to operations covering so many states. Banning also testified that appellant interceded with a physician in Chicago in May, 1941, in order to arrange so that Banning would not be compelled to appear in Omaha on May 19, 1941, to answer to a jewelry robbery charge.

The method which Banning and his confederates followed in the robberies was to hunt for and get on the track of some jewelry salesman whom they would follow from place to place and from city to city. They would ascertain whether this salesman carried his samples or wares in a trunk or on his person. If on his person, they followed him until they were able to hold him up and take the jewelry. If a jewelry trunk was used, they watched the expressman who was conveying the trunk to or from the station and would either steal it at a time when the expressman was occupied, or hold him up at the point of a pistol and take the trunk. Sometimes they followed the automobiles of jewelry salesmen, blocked the road, forced them to stop, and robbed them. Certain of the robberies described by Banning have already been the subject of indictment and conviction in the federal courts, Banning, Williams, Petrilli and Robinson, alias Russell, having been found guilty of transporting stolen jewelry in violation of the National Stolen Property Act. Banning v. United States, 6 Cir., 130 F.2d 330, certiorari denied, 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556; Petrilli v. United States, 8 Cir., 129 F.2d 101, certiorari denied 317 U.S. 657, 63 S.Ct. 55, 87 L.Ed. 528; Russell v. United States, 8 Cir., 119 F.2d 686.

The substantive crime charged in the indictment was the transportation from Detroit, Michigan, to Chicago, Illinois, on September 13, 1940, of jewelry stolen from Walter Ollendorff at the Book-Cadillac Hotel. Banning stated that he and his confederates secured from one of the bellboys a pass-key to Ollendorff's room and to the locked closet in the room. They entered in Ollendorff's absence and took his cases containing jewelry. After they had separated the articles of value they burned the cases in a vacant lot near Detroit. The fire was seen, and when the fire department extinguished it they found a few small articles of jewelry which were identified by a representative of the Ollendorff Watch Company as bearing the exclusive Ollendorff pattern. The bulk of the jewelry was taken to Chicago and purchased by Gordon.

The trial court did not err in denying motions to quash the indictment. Full answers were given to the two sets of interrogatories presented in the motions for bills of particulars and the accused was fairly apprised of the charges against him. Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680.

Nor did the court err in submitting to the jury the substantive count of the indictment which charged the interstate transportation of jewelry stolen in Detroit on September 13, 1940. While Walter Ollendorff had died prior to the trial, it was clearly shown not only by the evidence of Banning, but by police and fire department records and the testimony of the representative of the Ollendorff Watch Company that watches and watch-cases worth over $5,000 were stolen from Walter Ollendorff in Detroit on the date charged. This jewelry was transported to and bought by the appellant in Chicago.

We question whether the letter written by Walter Ollendorff to his brother, an officer of the Ollendorff Watch Company, with reference to this robbery was properly introduced in evidence. It was admitted upon the ground that it was made in the regular course of business within the meaning of 28 U.S.C. § 695, 28 U.S.C.A. § 695.

The alleged report was a highly personal account, written in familiar terms. While it stated the approximate number of pieces lost, as reported by Walter Ollendorff to the insurance agent, it hardly bore the ear-marks of a business report. Appellant contends that under the doctrine of Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719, no report of a jewelry loss is admissible under 28 U.S.C. § 695, 28 U.S.C.A. § 695. Appellee urges that reports of thefts of jewelry stock are necessarily made in the systematic conduct of the jewelry business and that the letter was thus clearly admissible.

We see some factual distinction between the situation presented here and in Palmer v. Hoffman, supra. It is the business of a jewelry company to sell its goods, and reports of losses of its stock would appear to be not only a necessary, but an integral part of the business itself. The letter in question is not, however, typical of entries "made systematically or as a matter of routine," and we therefore conclude that within the rule in Palmer v. Hoffman, 318 U.S. page 113, 63 S.Ct. 477, the evidence was not competent. Its admission was in no way prejudicial, for it was merely cumulative of other competent and unimpeached testimony.

The presence in Detroit of Banning and of Walter Ollendorff, Ollendorff's loss, the fire, and the finding of the few articles of jewelry unconsumed, were fully established by the testimony of employees of the Book-Cadillac Hotel, by Banning's registration card at the Hotel Tuller, and by members and records of the police and fire departments of Detroit. Banning's presence on the following day at the Hotel Southmore in Chicago, where he stated that the appellant valued the jewelry stolen from Ollendorff, was also shown by registration card of the Hotel Southmore. In view of the corroborative testimony as to appellant's assistance in these operations, later discussed, substantial evidence existed requiring the submission to the jury of the question of appellant's guilt under the substantive count.

It is vigorously urged that the value of the watches and the watch cases is not shown; but the formal report of the robbery made by Ollendorff to the Detroit police estimated the loss as "several thousand dollars" value "unknown at that time." The formal claim made by the Ollendorff Watch Company to the insurer was introduced in evidence, as well as the draft received in payment of the claim. The amount claimed was $6,190.50, and the insurance paid was $4,600. This was based upon inventory. The jewelry was intended for the retail trade in which the markup is between 50% and 60%. A qualified expert testified that the value of the jewelry to the ultimate consumer was approximately $15,000, and thus completed this phase of the proof. Cf. United States v. Garvey, 2 Cir., 150 F.2d 767. It was proper to receive in evidence testimony as to the retail value of these items. Husten v. United States, 8 Cir., ...