United States v. Blair

Decision Date23 February 1972
Docket NumberNo. 19452.,19452.
Citation456 F.2d 514
PartiesUNITED STATES of America v. Robert G. BLAIR, Appellant.
CourtU.S. Court of Appeals — Third Circuit

COPYRIGHT MATERIAL OMITTED

William J. Brady, Jr., Philadelphia, Pa., for appellant.

Victor L. Schwartz, Asst. U.S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, GANEY* and MAX ROSENN, Circuit Judges.

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

This is an appeal from a judgment of conviction in the District Court for the Eastern District of Pennsylvania for causing altered securities to be transported in interstate commerce in violation of 18 U.S.C. § 2314 (1970).1

Appellant raises three main contentions on appeal: (1) there was insufficient evidence for the case to go to the jury on the theory that he was the principal who caused the Western Union money orders to be transported in interstate commerce; (2) there was prejudicial admission of hearsay testimony; and (3) the district judge's charge was confusing, inaccurate, and prejudicial.

We shall deal with the issues in that order.

(1) THE SUFFICIENCY OF THE EVIDENCE

Shur Kleen Co., Inc. was a small store located on West Allegheny Avenue, Philadelphia, Pa., containing three or four racks of clothing. Its manager identified himself as "Buddy Blair." On August 12, 1969, a checking account was opened in the name of the company with an initial deposit of $350. The signature card for the account specified the precise Allegheny Avenue address, named "Fred Blair" as company president and one of two persons authorized and required to sign checks on the account. The other person authorized to sign checks on the account was one Diane Sproul.

On November 18, twice on November 24 and once on November 28, 1969, Western Union money orders2 were deposited to the Shur Kleen Company account with the Girard Trust Bank. The orders were originally made out in the amounts of $10.00, $10.10, $10.05 and $20.00, but it was shown that each was raised to $20,000 prior to deposit. Three of the money orders were sent from 372 Central Park West in New York City. One was signed "Arthur Lang," one, "Jade, Inc.," and the third "Milton Elly." The fourth was sent from 3438 Central Avenue, Newark, New Jersey, although the sender was not identified. Three of the money orders included the following message: "Hope this payment brings all accounts up to date."

There was testimony that the money orders were received by Shur Kleen without having been altered, so that the change in the stated values would have had to occur between the delivery to Shur Kleen and the deposit at the bank. Once Girard accepted these money orders, it shipped them to the paying bank in New York City, creating the interstate transportation required by 18 U.S.C. § 2314. There is no proof as to who deposited the altered money orders, although appellant's fingerprint was on one of them.

There is a great deal of proof that appellant Blair began drawing large checks shortly after the deposits began. On November 21st, three days after the first money order was deposited, Blair went to the bank to inquire about how he could prepare a payroll for his business. Between November 21st and 28th, appellant withdrew large sums from the Shur Kleen account. These withdrawal checks were for $8,000, $9,000, $4,000, $10,000, $10,000, $20,000, and $6,000. Several of the checks were payable to the order of Girard Trust Company with receipts on the reverse side by Fred Blair indicating that he received the cash, and at least two included notations that they were for Shur Kleen's payroll. A treasurer's check on the bank for $10,000 was issued to the order of Fred Blair and paid by Girard Trust Company on the endorsement of "Fred Blair." The Western Union orders were drawn on the Chase Manhattan Bank in New York City. It discovered the alterations and refused payment.

Appellant contends that the evidence was insufficient to go to the jury; that at best the judge should have given a charge on aiding and abetting under 18 U.S.C. § 2 (1970).

On reviewing the motion for acquittal, "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Provenzano, 334 F.2d 678, 683-684 (3d Cir.), cert. denied 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964). The evidence need not exclude every other hypothesis interpreting the facts introduced at trial, provided that they do establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Boyle, 402 F.2d 757 (3d Cir.1968), cert. denied 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969); United States v. Giuliano, 263 F.2d 582, 584 (3d Cir.1959).3

In this case, the evidence, particularly when viewed in the light most favorable to the Government, presents an over-whelming case that the appellant is guilty beyond a reasonable doubt. The only piece missing is evidence that the appellant personally deposited the money orders at the Girard Bank. The question then becomes whether such actions can be inferred, and the circumstantial evidence strongly supports such inference. Blair was president of the company to which the money orders were sent, and he was one of the two people on the bank's signature card. His fingerprint was on one of the money orders. Three days after the first of the orders was deposited, he personally visited the bank and inquired about how to withdraw cash for payrolls. On the same day, and throughout the following week, he withdrew several large checks, some of which were marked for payrolls. However, as already indicated, Shur Kleen was a small store with very little in it.

Such circumstantial evidence would permit a finding that Blair was the principal involved in the bank transactions and that he carefully laid the plan to perpetrate the fraud on the bank. Were we to look upon this evidence charitably in favor of the appellant, it nonetheless leads to the conclusion that he was an aider and abettor. Such a distinction will not aid the appellant because proof of aiding and abetting will sustain an indictment charging the substantive offense. United States v. Heithaus, 377 F.2d 484, 485 n. 1 (3d Cir.1967); United States v. Provenzano, supra, 334 F.2d at 690.

(2) HEARSAY TESTIMONY

FBI agent Berry testified at the trial that he had gone to 372 Central Park West, New York City, and determined that none of the alleged senders of the money orders lived at that address. The defense made an objection, contending that the "determination" was hearsay. Appellant contends that either tenants or the manager of the building should have been brought in to testify.

In spite of the Government's efforts to characterize the testimony as a determination made independently by the agent, Berry was merely repeating statements made by others about events not within his personal knowledge. The testimony was therefore hearsay. Paschal v. United States, 306 F.2d 398, 401-402 (5th Cir.1962). There was competent evidence however, that the address of the sender of the fourth money order, 3438 Central Avenue, Newark, New Jersey, was wholly fictitious. While the admission of the hearsay was error, we find that it was harmless. Cf. Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The indictment charged the defendant in the conjunctive with causing to be transported in interstate commerce a security which he knew was falsely made and altered. The statute involved, 18 U.S.C. § 2314, is in the disjunctive and requires only that the security be falsely made or altered.

Thus, the indictment charged more than the Government was required to prove to convict. The Government introduced overwhelming evidence showing that the money orders were altered. It adduced sufficient circumstantial evidence independent of the alleged hearsay to sustain a finding that the appellant knew of the alteration of all of the money orders.4 The proof pertaining to the fictitious senders was only relevant to show false making. Had the indictment conformed to the statute, no proof of the false making would have been necessary to convict. The inclusion of the second prohibited act is of no consequence because proof of either will sustain the conviction. Crain v. United States, 162 U.S. 625, 635, 16 S.Ct. 952, 40 L.Ed. 1097 (1896); United States v. Conti, 361 F.2d 153, 158 (2d Cir.1966). Under these circumstances, the hearsay evidence was harmless.

(3) THE CHARGE TO THE JURY

Appellant raises several questions regarding the propriety of the district court's charge. Although the instructions to the jury may have been disjointed and may have lacked artistic formulation, none of the issues presented involve prejudicial error.

Early in the charge, the trial judge commented:

The charge there is that Mr. Blair did cause an altered security to be transported, and I don\'t want to comment on it, but I can\'t avoid saying that the money orders in question were altered. Now, you may find that they were not, I don\'t know, that is your province, but if you do find that they were altered and they were transported, then if it was done knowingly, with intent to defraud, that is a criminal act. (emphasis ours)

Trial counsel objected that the statement emphasized above usurped the role of the jury as the finder of fact. We need not decide whether it was prejudicial because we believe that the cautionary comment immediately thereafter corrected the error, if any. Moreover, the trial judge went further in assuring that the jurors understood it was their prerogative to find or not to find that the money orders were altered. After a side bar conference at which time counsel objected...

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