United States v. Allard, 19443.
| Decision Date | 15 February 1972 |
| Docket Number | No. 19443.,19443. |
| Citation | 458 F.2d 1136 |
| Parties | UNITED STATES of America v. George E. ALLARD, Sr., Appellant, John McAnall Eaton. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert L. Podvey, Podvey, Sachs & Kaltenbacher, Newark, N. J., for appellant.
William Braniff, Asst. U. S. Atty., Newark, N. J. (Herbert J. Stern, U. S. Atty., Newark, N. J., on the brief), for appellee.
Before HASTIE, ALDISERT and JAMES ROSEN, Circuit Judges.
On this appeal we review a conviction on one count of an indictment that charged the appellant, Allard, with causing the transportation of certain securities from New Jersey to New York knowing that they had been taken by fraud and converted in violation of 18 U.S.Code § 2314.
At the outset we observe that the indictment charges, in the conjunctive, knowledge that the securities had been "taken by fraud and converted", while the statute covers, in the disjunctive, knowledge that the securities had been "converted or taken by fraud". The law, as stated in similar cases, makes it clear that under such a statute knowledge of both a fraudulent taking and a conversion may be pleaded, and thereafter proof of either will sustain a conviction. Fields v. United States, 5th Cir. 1969, 408 F.2d 885; Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521. The prosecution undertook to prove that Allard caused securities to be transported with knowledge that they had been taken by fraud.
The securities in question belonged to Mrs. Alice Eaton, shown by the evidence to have been an infirm, feeble and forgetful woman of more than 90 years. The appellant Allard managed the apartment building in which Mrs. Eaton lived. He became her close friend and visited her every day or two. She came to rely upon him for guidance and for handling financial and other personal matters. Mrs. Eaton had two sons, John and Fred, neither of whom lived with her. At the times in question John was 67 years old. He had a drinking problem and frequently drank excessively. Like his mother, John relied upon Allard for advice and assistance in financial and other personal matters. At times Allard supplied him with whiskey. At other times Allard took liquor from him.
Mrs. Eaton kept her securities at a bank in a safe deposit box. Both of her sons had access to the box. According to John's testimony, at a time when he was "under the influence of liquor", Allard proposed that he take his mother's "securities out of the safe deposit box before my brother grabbed them". Accordingly, John obtained his mother's permission to remove the securities from the bank and he did so. Then, according to John, Allard told him that the securities "had to be sold". John, in Allard's presence, had his mother endorse the securities. John, escorted by Allard, then took them immediately to a stockbroker's office in New Jersey to arrange for their sale. On that occasion both men learned that in order to accomplish the sale, the broker would send the securities to New York for sale through a clearing house. The broker did transport the securities to New York where they were sold. The proceeds, in the form of a check for some $117,000, were mailed to Mrs. Eaton.
It was the practice in the Eaton household that Mrs. Eaton's maid, a person whom Allard had selected, would give Allard all business mail addressed to Mrs. Eaton. Accordingly, the maid delivered the $117,000 check to him. Thereafter, Mrs. Eaton endorsed the check and signed an authorization empowering a bank to put about half of the proceeds in two savings accounts in John's name as trustee for her, and to deliver the remaining $60,000 to John. Allard drove John to the bank where John presented the check and the authorization, obtained the $60,000 in the form of a certified check and opened the trust accounts.
Allard then took John directly to a neighboring bank where John cashed the $60,000 check. Upon emerging from the bank John handed the $60,000 in cash to Allard who was waiting outside. John testified that he did this because he thought Allard was going to keep the money for him.
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