Lofland v. United States, 20263.

• Decision Date: 06 June 1966
• Docket Number: No. 20263.,20263.
• Parties: James E. LOFLAND, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

357 F.2d 472 (1966)

James E. LOFLAND, Appellant, v. UNITED STATES of America, Appellee.

No. 20263.

United States Court of Appeals Ninth Circuit.

March 8, 1966.

Rehearing Denied June 6, 1966.

Thomas W. Lefner, Hollywood, Cal., for appellant.

Manuel L. Real, U. S. Atty., John R. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Mark L. Dees, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge:

Appellant appeals from a judgment of conviction on four counts of an indictment. Count One charged a violation of 18 U.S.C. § 1343.¹ Count Two charged a violation of 18 U.S.C. § 2315.² Count Three charged appellant and one Frederick George Koeneke with a violation of 18 U.S.C. § 2315, and Count Four charged appellant and Frederick George Koeneke and Dale O'Harley Jennings with a violation of 18 U.S.C. § 2315.

Trial was to the court sitting without a jury, a jury trial having been expressly waived, in writing, and in open court by the appellant. Appellant was represented by counsel of his own choosing at the arraignment, trial and imposition of sentence. Following the District Court's denial of appellant's motion for new trial, appellant was committed to the custody of the Attorney General for a period of ten years on each of the four counts, each sentence to begin and run concurrently with each other and concurrently with any other sentence defendant was then serving.

Co-defendants Koeneke and Jennings, named in Counts Three, Four and Five were found not guilty.

We shall first consider Counts One and Two in which appellant alone was charged.

Count One of the indictment charged:

"COUNT ONE

18 U.S.C. § 1343

"Beginning on or about May 28, 1964 and continuing to on or about June 4, 1964, the defendant JAMES ELDON LOFLAND devised and intended to devise a scheme and artifice to defraud the Crocker-Citizens National Bank, Van Nuys, California Branch and to obtain money from said bank by false pretenses, that is, by the pledging of stolen stock certificates in order to obtain a $35,000.00 loan from said bank.

"In carrying out his scheme the defendant made the following false and fraudulent representations well knowing at the time that the representations and promises were false:

"1. That the defendant was authorized to pledge the stock by the owner of the stock, Elizabeth Pandolfi.

"2. That the telegram he presented the said bank on May 29, 1964 to substantiate his claim of authorization from Elizabeth Pandolfi was from Elizabeth Pondolfi.

"3. That the letter he presented the bank on June 3, 1964 to further support his claim of authorization was signed by Elizabeth Pandolfi and bore the signature guarantee of the Chase Manhattan Bank in the name John Brent.

"On or about May 28, 1964, the defendant JAMES E. LOFLAND for the purpose of executing the aforesaid scheme and artifice, caused to be transmitted by means of interstate wire, a telegram from New York City, New York to Beverly Hills, California, Los Angeles County, within the Central Division of the Southern District of California."

Count Two of the indictment charged:

"COUNT TWO

18 U.S.C. § 2315

"On or about May 29, 1964, the defendant JAMES ELDON LOFLAND, received and disposed of 355 shares of American Telephone and Telegraph Common Stock and 100 shares of Kennecott Copper Corporation Common Stock, of a value of more than $5,000.00 which securities were moving as, and constituted a part of interstate commerce from Sharon, Pennsylvania to Los Angeles County, California, within the Central Division of the Southern District of California; and said securities theretofore had been stolen and unlawfully converted as the defendant then and there well knew."

At the beginning of the trial the parties, in writing, including their respective counsel, signed a stipulation which, insofar as it relates to Counts One and Two, reads as follows:

"3. That on March 12, 1964, a burglary was committed at the residence of Mrs. Elizabeth Pandolfi, 1546 Westerman Road, Sharon, Pennsylvania, at which time a safe containing the following stock certificates registered in her name was stolen:

                                                             Certificate
                                                             No.                 Shares
                  ______________________________________________________________________
                  American Telephone and Telegraph
                   Company                                   BNO17462            344
                  Kennecott Copper Corporation                 N54599            100
                     "         "        "                      N54598            100"
                

"5. That none of the signatures appearing on the back of any of the certificates listed in Paragraphs 1, 2 and 3 above are genuine.

"6. That exhibits 1, 2, 20, and 36 through 60 are genuine stock certificates and are among those described in paragraphs 1, 3 and 4 above."

The testimony relating to these two counts may be summarized as follows:

On May 29, 1964, appellant was introduced to Mr. A. L. Clark, of the Panorama City branch of Crocker-Citizens National Bank, Van Nuys, California. Appellant asked for a loan of $35,000, purportedly for a down payment on a new home, and offered as collateral two stock certificates. These certificates were respectively for 344 shares of American Telephone and Telegraph, Certificate No. BNO17462, and for 200 shares of Kennecott Copper Corporation, Certificate No. N54599 and N54598, and were issued in the name of Elizabeth Rose Pandolfi. A signature, apparently written by Mrs. Pandolfi, appeared on the back of the certificates with a guarantee stamp and officer's signature apparently from Chase Manhattan Bank. It was stipulated in writing by the parties that these certificates had in fact been stolen from Mrs. Pandolfi's residence in Sharon, Pennsylvania. The approximate market value of the shares represented by the certificates was $55,738 at that time.

When Clark told appellant that the bank could not advance the full amount requested because the stocks were not in appellant's name, appellant produced a telegram which appeared to be from Mrs. Pandolfi giving him complete authority to pledge her stock for a loan. This was not completely satisfactory to Clark and he requested that appellant obtain Mrs. Pandolfi's signature on an Authority to Pledge form. Appellant stated that he would be flying to New York immediately and would have the Authority signed by Mrs. Pandolfi and return it to Clark.

Anticipating execution and delivery of the Authority to Pledge, Clark advanced $10,000 to appellant's checking account on behalf of the bank, for which appellant executed a promissory note and for which certain supporting documents were made out in the bank's normal course of business.

On June 3, 1964, appellant returned to the bank with a new and different Authority to Pledge form which had apparently been executed by Mrs. Pandolfi and upon which her signature had been guaranteed by the same Chase-Manhattan stamp and signature of "John Brent" as that which appeared on the certificates. Appellant explained that he had not gone to New York but had dictated the Authority to Pledge over the telephone for Mrs. Pandolfi's execution. Clark then advanced $25,000 more to appellant's checking account, and appellant executed a promissory note for $35,000. At the same time appellant had two cashiers checks in the amounts of $7,000 and $10,000 respectively, prepared by the bank.

Mrs. Pandolfi, a resident of Sharon, Pennsylvania, testified that she had neither furnished the certificates to Chase-Manhattan for guarantee, sent a telegram to appellant, signed a pledge document, met appellant prior to seeing him in court, nor given him any stock for any purpose. A Western Union official testified from his company's records that the telegram had been sent May 28 from New York.

No witnesses were called on behalf of appellant nor did appellant, himself, testify.

Counts Three and Four of the indictment charged violations of 18 U.S.C. § 2315. Count Three charged appellant and co-defendant Koeneke received and disposed of 100 shares of Kennecott Copper common stock of a value of more than $5,000 which securities were in interstate commerce and which appellant and Koeneke knew to be stolen and unlawfully converted. Count Four charged appellant and co-defendants, Koeneke and Jennings, received and disposed of 100 shares of IBM common stock of a value of more than $5,000 which securities were in interstate commerce and which appellant and co-defendants knew to be stolen and unlawfully converted.

With respect to Count Three the evidence discloses that on or about June 5, 1964, appellant gave Koeneke 100 shares of Kennecott Copper stock, certificate No. 54598, issued in the name of Elizabeth Rose Pandolfi. Appellant claimed to have authority to hypothecate the stock and suggested that Koeneke, who had local financial connections, should use it as collateral at the bank to meet the expenses of certain promotions of ...