Schwachter v. United States, 12950.

• Decision Date: 02 November 1956
• Docket Number: No. 12950.,12950.
• Citation: 237 F.2d 640
• Parties: Sam SCHWACHTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

237 F.2d 640 (1956)

Sam SCHWACHTER, Appellant, v. UNITED STATES of America, Appellee.

No. 12950.

United States Court of Appeals Sixth Circuit.

November 2, 1956.

A. J. Jolly, Newport, Ky., for appellant.

Henry J. Cook, U. S. Atty., John M. Kelly, Marvin Jones, Asst. U. S. Attys., Lexington, Ky., for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

Appellant was indicted for having sold on May 18, 1955 a stolen 1955 Cadillac automobile moving in interstate commerce from Cleveland, Ohio, to Newport, Kentucky, knowing the same to have been stolen, in violation of Section 2313, Title 18 U.S.Code. Following a trial by jury and a verdict of guilty, he received a sentence of two years in prison, from which this appeal was taken.

It was stipulated by the parties that the automobile in question was owned by Sol Leslie of Cleveland, Ohio, and was stolen from the garage in the rear of his residence by a person unknown to Leslie, between 3:30 p. m. on May 7, 1955 and 9:30 a. m. on May 8, 1955. The Government's evidence showed that on May 16, 1955 the automobile was registered in Kentucky and a license issued to one James Martin, Route 1, Burlington, Kentucky, by the clerk of Campbell County, Kentucky, in which Newport is situated, being transferred from one Joe Lippman of Brooklyn, New York. The Cadillac was observed by Albert Masterson on Masterson's parking lot in Newport, where it remained for about four days before it was purchased by Masterson. During that period of time Masterson drove it around. Appellant and a man named Nader, whom Masterson knew, contacted Masterson about buying the car. Appellant told Masterson that it was owned by James Martin, who had lost money gambling, and wanted to unload the car as quickly as he could for ready cash. The market value of the car, as computed by the Kentucky usage tax paid to the clerk upon registration in Kentucky, was $3,948.85. Appellant asked $3,500 for the car but after some five or ten minutes negotiations reduced the price to $3,200. Masterson had his attorney make an investigation about possible liens or mortgages, who after doing so reported that it was free and unencumbered.

The attorney testified that Masterson gave him the license registration and a bill of sale, notarized in blank, which bore the signature James Martin, that appellant and a man who said he was James Martin came to his office, that Martin acknowledged that he had signed the bill of sale and signed a receipt for $3,200 which the attorney had received from Masterson and gave to Martin. Masterson was not present and at no time ever saw the man referred to as James Martin.

The Notary testified that on the day before the sale at appellant's request, he notarized a bill of sale in blank without the signature of any seller on it, which appellant told him was to cover the Plymouth automobile which appellant was driving. He did not know or see a James Martin.

An agent of the F.B.I. testified that he made an effort to locate James Martin in Burlington but could find no such person or any trace of such person. The agent questioned appellant about the transaction in August 1955. Appellant denied to him that he had the bill of sale notarized or that he was present in the attorney's office when the money was paid for the car. This was contrary to the testimony of the notary and the attorney, and to some extent with the testimony of Nader, who testified for the appellant. Nader testified that he, Martin and the appellant walked together to the attorney's office, that Martin went into the office, he (Nader) waited outside, and he didn't remember whether appellant went in or waited outside.

A witness for the appellant testified that in the early part of May 1955, he was sitting in the Flamingo Club in Newport, where he had gone to see the manager in an attempt to borrow some money or dispose of his car; that a man whom he had never seen before or since, came from the back of the Club, complained of his bad luck at gambling, and asked him if he wanted to buy a 1955 Cadillac. The witness said he was not interested, but he saw the appellant who used to be in the used car business at a nearby table and referred the seller to him. The seller, who did not state his name, went over to appellant's table and sat down and talked to him. The witness heard him ask appellant in his opening words if he knew where he could sell a 1955 Cadillac.

Nader testified that he saw the appellant sitting at a table in the Club with a man who appellant told him wanted to sell a Cadillac. The man said his name was Mr. Martin. Nader had seen him at the Club during the previous three days gambling hard and losing money. Nader suggested a sale of the car to Masterson, who was a lifelong friend of his, and he and appellant went to see Masterson about it. Masterson was interested, so Nader and appellant returned to the Club and got the key from Martin. Masterson purchased the car about two days later.

At the conclusion of the Government's evidence appellant moved for a judgment of acquittal on the ground that the Government had not proved that the car was moving in interstate commerce at the time of the sale, which motion was overruled. At the conclusion of all the evidence the motion was renewed and again overruled. In his closing argument to the jury the appellant's attorney was making the same point when the Court interrupted with the following statement: "Now, Mr. Jolly, it will not be submitted to the jury as to whether the car was moving in interstate commerce. The Court decides as a matter of fact and the jury will be so instructed that the car was in interstate commerce."

In his instructions to the jury the District Judge stated in his opening remarks that under the law a person who sells or disposes of a motor vehicle moving as a part of interstate commerce, knowing the same to have been stolen, is guilty of an offense. Thereafter, no reference was made with respect to the issue of interstate commerce. On the contrary, the District Judge stated, — "It was a stolen car and it was sold to Masterson by the defendant or through the agencies of the defendant. Now, that is the case. The defense is that this defendant did not know it was a stolen car. * * * You heard all the evidence and it will be for you to determine one thing and only one: Did this defendant sell that car, knowing it was a stolen car." A little later the District Judge stated — "Now, the question, as I say, narrows down to what this defendant knew." He stated to the jury that the defendant denied that he knew it was a stolen car, and explained to the jury the difficulty of determining what a defendant knew, and that it was a fact for the jury to determine from all the facts and circumstances, which he briefly reviewed. He then gave the following instruction: "If you believe that on or about May 18, 1955 the defendant Schwachter in this district received, concealed, and sold the automobile in the proof described, knowing at the time that the car was a stolen car, and your belief in that respect is beyond a reasonable doubt, you ought to find him guilty. If you have a reasonable doubt of his having been proven guilty, you ought to find him not guilty." At the conclusion of the instructions, appellant took exceptions on the ground that the Court failed...