Popeko v. United States

• Citation: 294 F.2d 168
• Decision Date: 14 September 1961
• Docket Number: No. 18773.,18773.
• Parties: Alex POPEKO, Fred Del Genio and Thomas Edward Harty, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

294 F.2d 168 (1961)

Alex POPEKO, Fred Del Genio and Thomas Edward Harty, Appellants, v. UNITED STATES of America, Appellee.

No. 18773.

United States Court of Appeals Fifth Circuit.

August 16, 1961.

Rehearing Denied September 14, 1961.

John A. Daniels, San Antonio, Tex., Robert J. McDonnell, Chicago, Ill., for appellants.

Arthur L. Luethcke, Asst. U.S. Atty., Russell B. Wine, U. S. Atty., K. Key Hoffman, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before HUTCHESON, RIVES and WISDOM, Circuit Judges.

HUTCHESON, Circuit Judge.

Each of appellants was convicted of the charges set forth against him in an indictment charging Popeko in counts one and two, Harty in count three, and Del Genio in count four, with the substantive offense of causing to be transported in interstate commerce falsely made, forged and counterfeited securities, to-wit, cashier's checks, and in the fifth count charging all of the three with a conspiracy to unlawfully transport and cause to be transported in interstate commerce said forged, falsely made and counterfeited securities.

Appealing from these convictions, appellants attack the judgment and sentence as invalid because (1) of the insufficiency of the evidence and (2) of the error of the court in failing to properly instruct the jury on the elements of the offenses charged, especially in failing to define the term "securities".

In addition to these grounds, appellants assign as their main ground of attack (a) the denial of appellants' extraordinary motions made personally, after the evidence had been concluded and the case had been argued and submitted to the jury, to discharge their counsel and allow them time to obtain other counsel and to obtain witnesses, and (b) in denying appellants' motion for a new trial because of the prejudice suffered by appellants from the conduct of their trial counsel in failing to call defendants' witnesses and place them on the stand.

While the record is a very large one, a brief statement will suffice to set forth the facts on which the government relied for a conviction. These are the uncontradicted testimony of witnesses as to the making and causing to be transported in commerce of the checks made the subject of the indictment. In view of the fact that the government's witnesses positively connected the defendants with the making of the forged documents and causing them to be sent through interstate commerce and the equally positive and uncontradicted testimony of the government witnesses showing that the instruments were forged, taking the testimony in the light most favorable to the verdict, it cannot be said that the evidence was insufficient to support the conviction. Indeed, we think that under the evidence, no other verdict than one of guilty could have been reasonably rendered.

It is equally clear that the assignment of error on the insufficiency of the charge must be rejected both because there was no exception made to it below on the grounds put forward here,¹ though counsel were given full opportunity to present exceptions to it, and because there was no obligation on the part of the court to define the word "securities" or the elements of the offense further than was done.

The court's charge made very clear to the jury what the offense charged was, and, under the evidence and charge, the jury were not in any way misled as to the gravamen of the charges against the defendants. We think that the court's statement: "The essential elements of the offenses charged in the first, second, third, and fourth counts of the indictment lie in the causing with unlawful and fraudulent intent to be transported in interstate commerce of falsely made and forged securities with the knowledge that the same had been falsely made and forged", is a correct statement, and that, followed up as it was by the charge: "The word `knowingly' as used in this charge and in the indictment means that the act was done with full knowledge on the part of the defendants of all of the essential elements of the offenses charged", when taken in connection with the evidence and the later charge: "In view of Sec. 2(b) Title 18 U.S.C., read to you hereinbefore, it is not necessary to show that the defendants, or any of them, actually transported anything themselves. It is sufficient that they caused it to be done.", the instructions sufficiently charged the elements and gravamen of the offenses and, together with the full charge on count five of the indictment, the conspiracy count, very fairly and fully set forth the applicable law.

We come then to the most argued and most relied on claims of error in the denial of the defendants' extraordinary motions to continue or postpone the trial, and their motion for new trial, because of the prejudice suffered by them from the conduct of their counsel, in failing to call defendants' witnesses and place them on the stand. While the record on this issue is a very large one, a brief statement will...