U.S. v. James, 89-3119

• Citation: 923 F.2d 1261
• Decision Date: 06 February 1991
• Docket Number: No. 89-3119,89-3119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo JAMES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1261

923 F.2d 1261

UNITED STATES of America, Plaintiff-Appellee, v. Leo JAMES, Defendant-Appellant.

No. 89-3119.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1990.

Decided Feb. 1, 1991.

As Amended Feb. 6, 1991.

Sean Martin, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Chris Averkiou, Chicago, Ill., for defendant-appellant.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant Leo James appeals his conviction and sentence for conspiring to transport stolen bonds in violation of 18 U.S.C. Sec. 371 and interstate transportation of stolen bonds in violation of 18 U.S.C. Sec. 2314. We affirm.

I. FACTS AND PROCEEDINGS BELOW

On June 1, 1989, a grand jury returned a seven-count indictment against Robert Harrod, Roy Ange, Frances Hellinger, Charles Beyer, and the defendant-appellant Leo James, alleging numerous crimes related to the interstate transportation of stolen bonds. Two counts were filed against the defendant James. Count One charged all five defendants, including James, with conspiracy to transport stolen bonds having a value in excess of $5,000 in interstate commerce, in violation of Title 18, U.S.C. Sec. 371. Count Two charged the defendant James alone with interstate transportation of six stolen bonds, in violation of Title 18, U.S.C. Sec. 2314. Count Three charged Harrod and Beyer with interstate transportation of stolen bonds, and Counts Five and Six charged Harrod and Hellinger with interstate transportation of stolen bonds. Counts Four and Seven charged Ange with interstate transportation of stolen bonds. Harrod, Hellinger, and Beyer pled guilty while the defendant James went to trial on the two counts of the indictment; Ange, a fugitive at the time of trial, was later arrested and pled guilty.

On July 31, 1989, defendant James went to trial on the charges of conspiracy, 18 U.S.C. Sec. 371 and transportation of stolen securities, 18 U.S.C. Sec. 2314. Harrod testified on behalf of the government at James' trial and stated that James called him in April 1984 to ask him if he would cash some bonds for him. Although they had not spoken for almost 20 years, Harrod agreed to negotiate the bonds, and James sent him six $5,000 New York municipal bonds via Federal Express from his home in Tucson, Arizona, to Harrod in Joliet, Illinois. ¹ On May 18, 1984, Harrod took photocopies of the bonds to Stoffan & Sons, a Joliet, Illinois, brokerage firm, to inquire as to whether the bonds were stolen. Harrod testified that the reason he brought photocopies of the bonds rather than the bonds themselves was to avoid proffering direct evidence in the event that the bonds were actually stolen, thus allowing him to sell the actual bonds "on the market" if Stoffan & Sons advised him that the bonds were stolen. Believing the bonds to be legitimate, Stoffan & Sons agreed to sell the bonds and gave Harrod a check for $22,897.50. Harrod took the check to Stoffan & Sons' bank in Joliet, obtained two cashier's checks, forwarded them to James in the amount of $6,250 and $7,000, and kept the remaining money. Harrod testified that he requested the drafting of two separate cashier's checks in James' name in order that he might keep the checks under the $10,000 Internal Revenue Service monetary reporting requirement.

Harrod also testified at trial that while visiting James in Arizona approximately two weeks later in late May 1984, Stoffan & Sons contacted him and advised him that the bonds they had cashed for him were in fact stolen, and that they wanted to be reimbursed. Harrod testified that when he mentioned the stolen bonds to James, James replied, "Yeah," and he neither acted surprised nor did he deny that they were stolen. Harrod told James that he was interested in obtaining more bonds to negotiate. James replied that he knew a person in New York, Roy Ange, who could secure more bonds.

A short time later, Ange, Harrod and defendant James met in Arizona and discussed the sale of more stolen bonds. Ange stated he could get bonds from New York, which he said had been stolen by his nephews. James, upon receipt of these bonds, forwarded them to Harrod in Illinois who in turn arranged for the cashing of the same. At trial, Harrod testified that Ange admitted that the bonds were stolen from a brokerage firm in New York in the presence of James and Harrod.

Harrod further testified at trial that James sent him a second set of nine $5,000 New York General Obligation bearer bonds sometime in the summer of 1984. ² At this time Harrod recruited a Charles Beyer to aid in the selling of the bonds, and on May 24, 1984, Beyer went to an E.F. Hutton office in Flossmoor, Illinois, and opened an account prepatory to selling the nine bonds. E.F. Hutton sold the bonds for Beyer and gave him a check for $19,757 on June 4, 1984. Harrod sent James the coupons from the second set of bonds, and James cashed them. Harrod testified that the coupons "went to Boston, Massachusetts, and they were reported stolen; they sent the coupons back to the bank, and Leo [James] had to pay the money back."

In late August 1984, James sent Harrod six $5,000 North Carolina Municipal Power Agency bonds. ³ Harrod gave the bonds to Beyer, who offered them for sale to a Prudential-Bache office in Olympia Fields, Illinois. Prudential-Bache sold the bonds and gave Beyer a check for $37,745.63; Beyer cashed the check, and the proceeds were divided among the participants. ⁴

In early September 1984, Harrod received a fourth set of bonds from James and recruited Frances Hellinger to cash the bonds for him. Hellinger cashed the bonds at the Oakbrook, Illinois, office of Merrill, Lynch. A short time later, Ange forwarded Harrod a fifth set of bonds from New York, and Hellinger cashed them for Harrod at Richard Vance, a Joliet, Illinois, brokerage firm. ⁵ Harrod testified that he used Hellinger and Beyer to redeem the bonds in order to deflect attention and suspicions that might have arisen had just one individual attempted to cash a large amount of bonds at one time. Harrod also testified that he never told James or Ange about Hellinger and Beyer's identities in order that he might insulate the people in the conspiracy from one another. ⁶

Harrod stated at trial that in January 1985 he began cooperating with federal agents, resulting in the agents' taping three phone calls in January and February of 1985 between Harrod and the defendant James, which were later admitted at trial. The tapes revealed that Harrod and James discussed the sale of numerous sets of bonds, including another $900,000 worth of bonds which Ange obtained but later had to return. During these phone conversations, Harrod and James spoke in code, using the terms "forms" or "racing forms" to refer to the bonds, "jockeys" to refer to Ange's nephews in New York, and "agents" to refer to the buyers of the bonds. Harrod testified that he, Ange, and defendant James had agreed during their first meeting in May 1984 to use code words while speaking on the telephone to protect themselves from any government-instituted wire taps.

At trial, defendant James, testifying on his own behalf, admitted that he had received $7,000 from the sale of the first set of bonds, and approximately $1,100 to $1,200 from the sale of the second set of bonds. James admitted his role was to send the bonds to Harrod, who would then sell them, and would then give James "X amount" of the proceeds. James admitted that he learned the first set of bonds was stolen after Harrod cashed them and also admitted that at the first meeting between Ange, Harrod and himself in Arizona that Ange "stated that they were stolen bonds...." James further stated that when he and Ange discussed the proposal to send the second set of bonds to Harrod, Ange advised him that the bonds were stolen. James also admitted he used a "code" with Harrod over the telephone when referring to the bonds, Ange's nephews in New York, and the buyers of the bonds so that he might protect himself from any government-instituted wire taps. Finally, James confessed that he knew the stolen bonds were being forwarded from New York.

On August 2, 1989, after a three-day jury trial, James was found guilty on both counts in the indictment. At sentencing, the district court imposed a two-year prison sentence on Count 1 (the conspiracy count), five years' probation on Count 2 (the substantive interstate transportation count) to run consecutively, and James was ordered to make restitution in the amount of $80,399.

II. ISSUES FOR REVIEW

On appeal, the defendant-appellant James contends that (1) Counts One and Two of the indictment are defective in that they fail to charge an offense and fail to identify either the stolen bonds, much less the owners thereof; (2) the evidence at trial was insufficient to establish that any of the bonds were stolen; (3) the conspiracy instruction given to the jury failed to state that an agreement was necessary to convict and that the term "unlawful purpose," used by the district court therein is vague; and (4) he was subject to a harsher sentence than his co-defendants because he exercised his right to a jury trial.

III. DISCUSSION

A. Sufficiency of the Indictment

Defendant-appellant James argues on appeal that the indictment failed to allege sufficient material facts necessary to describe the commission of the offense. Specifically, James contends that Count One of the indictment, the conspiracy count, was defective because it failed to either "specify the stolen property" or "identify the owner of the property"; similarly, James argues that Count Two, the substantive interstate transportation count, was also defective because it failed to allege "ownership of the bonds" and "to whom the bonds belonged." James contends that because the stolen bonds were...