Herman v. United States

• Decision Date: 21 June 1961
• Docket Number: No. 18012.,18012.
• Citation: 289 F.2d 362
• Parties: George HERMAN v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F.2d 362 (1961)

George HERMAN v. UNITED STATES of America.

No. 18012.

United States Court of Appeals Fifth Circuit.

April 12, 1961.

Rehearing Denied June 21, 1961.

COPYRIGHT MATERIAL OMITTED

Irving M. Wolff, Miami, Fla., for appellant.

Robert W. Rust, Asst. U. S. Atty., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The appellant, George Herman, questions the fairness of the trial below, as well as the adequacy of the government's proof to establish the elements essential for conviction.

May 18 or May 19, 1958, Jack Heffron, president and director of Norelle Jewelry Company, went to the Union Station at St. Louis, Missouri, to start on a sales trip. He had with him a salesman's jewelry case containing various samples of rings and mountings. He gave the case to a porter. The porter placed it on a hand truck. Heffron walked to one of the ticket windows to buy a ticket. He turned his head. In that instant the case disappeared. Heffron, the porter, the railroad police, and the St. Louis police began a search. They found no sample jewelry case.

May 20, 1958, at 1:30 a. m., George Herman and Howard Selander checked into the Mar-Jes Motel in West Memphis, Arkansas. This motel, about 300 miles from St. Louis, is on United States Highway 61, the main artery leading from St. Louis, Missouri, to Memphis, Tennessee. About nine o'clock that morning Herman and Selander went to the Railway Express Agency in Memphis. Using the name "Ben Cohen," Herman told one of the Express Agency employees that he wished to send a sample jewelry case to the Cut Rate Gift Shop in Fort Lauderdale, Florida. (The Government's Exhibit #1 was identified as the sample case Herman sent — and as Heffron's missing sample case.) At the trial, the Agency employee identified both Herman and Selander. He testified that Herman made out address tags as requested, and that Herman said that the case contained jewelry valued at $150. When the agent informed Herman that because the value exceeded $50 the Money Department of the Agency would have to handle the shipment, Herman replied that the value actually was no more than $50, since the jewelry was costume jewelry only. The agents made out delivery receipts and attached seals to the case, using identical numbers on the delivery receipts and seals, as is customary. The agent in charge of the Money Department stated, from his record, that the jewelry case left Memphis the same day, headed for Fort Lauderdale on board the St. Louis San Francisco train No. 105 at 10:30 a. m.

A special agent of the F.B.I. recognized Herman and Selander when he saw them standing on a street in Memphis about a mile away from the Railway Express Station. One hour later, and 75 miles away, they were arrested for speeding.

At the time of shipment, Herman appeared to have a full head of hair. A few hours later, after his arrest by the Mississippi Highway Patrol for speeding, he flushed a wig down the toilet in the Union County jail in New Albany, Mississippi. Witnesses testified that when they saw Herman in the Railway Express Office he had a full head of hair; but when they saw him later the same day, he was bald.

May 23, 1958, a Railway Express Agency employee in Fort Lauderdale, Florida, delivered the sample case to the Cut Rate Gift Shop. Oscar Slofsky initialed the delivery receipt, or waybill, and accepted the sample case. The seals were intact when Slofsky received the case, and the seal numbers tallied with the numbers recorded on the waybill. That same day, at the request of the F.B.I., Heffron identified this sample case and its contents as the property he had lost in Union Station.

Count one of the indictment charges George Herman and Howard Selander with wilfully causing the jewelry case to be transported in interstate commerce, in violation of 18 U.S.C.A. § 2314.¹ Count two charges Oscar Slofsky and Jack Rapaport, co-owners of the Cut Rate Gift Shop, with receiving goods shipped in interstate commerce knowing them to have been stolen, in violation of 18 U.S. C.A. § 2315.² Count three charges Herman, Selander, Slofsky, and Rapaport with conspiracy to violate 18 U.S.C.A. § 2314 and § 2315, in violation of 18 U.S. C.A. § 371. The conspiracy count alleges two overt acts: (1) Herman and Selander met and conferred in Memphis, May 20, 1958, and (2) Slofsky and Rapaport received the jeweler's case from Memphis, May 23, 1958.

The case was tried before Judge William C. Mathes, United States District Judge, Southern District of California, then assigned to the Southern District of Florida. Judge Mathes struck the first overt act from the indictment on his own motion. Selander pleaded guilty to counts one and three of the indictment. Neither the government nor the defendants called him to testify. The jury acquitted Slofsky and Rapaport, with respect to counts two and three. Herman, however, was found guilty of counts one and three.

I.

Herman contends, first, that he did not receive a fair and impartial trial. He asserts that the trial judge unnecessarily and persistently cross-examined the witnesses and interfered with the progress of the trial, to the advantage of the government and in deprivation of the defendant's rights.

A trial judge "should never assume the role of prosecuting attorney and lend the weight of his great influence to the side of the government." Hunter v. United States, 5 Cir., 1932, 62 F.2d 217, 220. In our system of administering justice the functions of the trial judge and the prosecuting attorney are separate and distinct; they must not be confused. The trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution. Blumberg v. United States, 5 Cir., 1955, 222 F.2d 496, 501; Zebouni v. United States, 5 Cir., 1955, 226 F.2d 826.

Granted this, the record fails to support Herman's charges. The trial judge did break into the examination of witnesses with questions of his own and he did examine some of the witnesses at length. This is proper enough, within the exercise of a reasonable discretion. We find that the trial judge asked defendant's witnesses relatively few questions. Almost all of his questions were directed to the government's witnesses, and these were primarily aimed at a jurisdictional matter — the determination of the qualifications of the jewelry experts and the value of the jewelry sample case. We do not approve of a trial judge asking so many questions that he appears to take the case away from the attorney, but here we cannot say that he was more interested in one side of the case than he was in the other or that he was unfair to the defendant.

The record shows that the trial judge reprimanded the defense counsel. He also reprimanded the prosecutor. The record fails to indicate any bias or prejudice in either set of reprimands.

Herman attacks the exoneration of the defendants' bail during the course of the trial. This took place outside the jury's presence. The trial judge stated to counsel that the exoneration had nothing to do with the jury or the conduct of counsel. It was within his discretionary power to exonerate the bail as he did. Rule 46, Fed.R.Crim.P., 18 U.S.C.A.

To our minds, the record as a whole indicates that the trial judge participated in one way or another more actively than is customary, but with no bias or prejudice toward either side that would render the proceedings unfair. What may be customary in one district or circuit, of course, may not be customary in another district or circuit. Here if anyone was badgered — we do not say that anyone was — it was the United States attorney.

II.

To constitute a violation of 18 U.S.C. A. § 2314, the "value" of the items transported must be $5,000 or more. The "value" as defined in 18 U.S.C.A. § 2311, means "the face, par, or market value, whichever is the greatest, and the aggregate value of all goods, wares, and merchandise, securities, and money referred to in a single indictment shall constitute the value thereof." Two experts testified for the prosecution that the market value of the jewelry in the sample case exceeded $5,000. The defendants presented witnesses who testified that the market value was $4,800 and $4,408.94, without any mark-up. Herman contends that the government's witnesses employed the wrong test or formula in arriving at their value.

The standard test for determining market value of stolen property is the price a willing buyer would pay a willing seller at the time and place the property was stolen. "Mere cost of production, cost of replacement, value to the owner, value to one who might have use of it under certain circumstances, whatever else it might be, is not market value. For that value — market — depends on a market, whether formal or informal, in which willing buyers bargain with willing sellers." Abbott v. United States, 5 Cir., 1956, 239 F.2d 310, 313. The government's experts computed the value of the goods as cost of production plus mark-up, while the defense witnesses computed their value as cost of production alone. General retail value would naturally include a reasonable mark-up, and evidence as to retail value of the goods is properly admissible.³ Gordon v. United States, 6 Cir., 1947, 164 F.2d 855; Husten v. United States, 8 Cir., 1938, 95 F.2d 168.

We read the language "aggregate value of all goods" as contemplating the sum of the values of the individual articles, and not the lump sum value of all the articles as a single whole. The government experts, therefore, properly computed the unit value (cost of production plus mark-up) and multiplied by 900 rather than estimating the market value for 900 rings in one sale. Substantial evidence shows that the jewelry case and jewelry contained in it were worth more than $5,000.

III.

The defendant contends that the government...