United States v. Bottone

• Decision Date: 04 August 1966
• Docket Number: Docket 30343.,No. 436,436
• Citation: 365 F.2d 389
• Parties: UNITED STATES of America, Appellee, v. Caesar BOTTONE, Seymour Salb, and Nathan Sharff, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

365 F.2d 389 (1966)

UNITED STATES of America, Appellee, v. Caesar BOTTONE, Seymour Salb, and Nathan Sharff, Appellants.

No. 436, Docket 30343.

United States Court of Appeals Second Circuit.

Argued June 23, 1966.

Decided August 4, 1966.

Certiorari Denied December 5, 1966.

Moses Polakoff, New York City (Van Riper & Belmont, Newark, N. J., Walter D. Van Riper, Newark, N. J., of counsel; Theodore M. Wolkof, New York City, on the brief), for defendants-appellants Salb and Sharff.

Alfred Donati, Jr., New York City (Zoloto, Karger & Zurkow, New York City, Arthur Karger, New York City of counsel), for defendant-appellant Bottone.

Daniel R. Murdock, New York City (Robert M. Morgenthau, U. S. Atty., for S. D. New York; John S. Martin, Jr., Stephen F. Williams, John E. Sprizzo, Asst. U. S. Attys.), for the United States.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

Certiorari Denied December 5, 1966. See 87 S.Ct. 514.

FRIENDLY, Circuit Judge:

The convictions here under appeal stem from a scheme for the massive extraction from Lederle Laboratories, a division of American Cyanamid Company located in Pearl River, N. Y., of microorganisms used in the production of three antibiotics and a steroid,¹ and instructions for the drugs' manufacture. Although the drugs were covered by patents and specimen cultures were required to be deposited in collections available for purchase by the public at minimal cost, improved strains of the microorganisms and detailed manufacturing processes developed by Lederle which were not in the public domain offered vastly greater output from the same physical plant. The combination of this with the lack of patent protection in certain foreign countries created a market for stolen cultures and secret processes and furnished a substantial incentive for theft to disloyal employees and persons willing to do business with them. The enterprise that was the subject of this indictment involved stealing and preserving cultures Lederle had developed, temporarily removing and copying documents that outlined manufacturing procedures, and then selling the cultures and the copies primarily for ultimate exportation to Europe. As in so many criminal trials, the Government's case was presented mainly through the chief culprits, two former Lederle employees, Sidney Fox and John Cancelarich, and their lieutenant, Leonard Fine, all of whom pleaded guilty to the charges against them and were rewarded for their co-operation with light sentences of six-months' imprisonment.² The serious crimes charged against the appellants, Salb, Sharff and Bottone, were on the receiving end.

The trial was in the District Court for the Southern District of New York before Judge Metzner and a jury. The counts submitted, on which appellants were found guilty and given two-year concurrent sentences, were in summary as follows:

                Number Charge Appellants
                   1          Transporting CTC cultures and                 Salb
                              related documents from Spring                 Sharff
                              Valley, N. Y., to East Paterson
                              N. J., on November 11, 1959
                   8          Transporting TC, CTC, DMCTC                   Bottone
                              and triamcinolone cultures and                Salb
                              related documents from New                    Sharff
                              York to Rome, Italy, on April
                              16, 1961
                   9          Transporting CTC culture from                Bottone
                              New York to Milan, Italy, on                 Sharff
                              September 15, 1961
                  10          Conspiracy to steal, transport               Bottone
                              and sell cultures and related documents      Salb
                              from March 1958 to July                      Sharff
                              1964
                

Appellants' prolix briefs reargue the evidence in a manner that would scarcely be convincing to a jury and is wholly misplaced before an appellate court. Counsel ought to understand the futility of tedious efforts to show that each piece of testimony is susceptible of an innocent interpretation if it stood alone. The trier is entitled, in fact bound, to consider the evidence as a whole; and, in law as in life, the effect of this generally is much greater than of the sum of the parts. Cf. United States v. Monica, 295 F.2d 400, 401-402 (2 Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962). Indeed we find simply frivolous the attempt to demonstrate insufficiency by Salb and Sharff, who, as proprietors of Biorganic Laboratories of East Paterson, N. J., had begun illicit dealings with Fox in stolen Lederle cultures as early as the winter of 1958, continued their purchases of micro-organisms and documents for more than two years, and then switched their custom to Cancelarich after he had acquired most of Fox' collection of Lederle cultures and records. Although Bottone entered the conspiracy at a later stage and the Government adduced no direct testimony that he had heard the cultures and documents described as stolen from Lederle, the evidence of his participation in discussions as to disposition of the goods and of his substantial role in facilitating transportation abroad of both cultures and participants, which we summarize in the margin,³ amply met the Government's burden. To hold that the jury could not be convinced from all this evidence of his comings and goings that Bottone knew what was about, would require a greater degree of credulity than even such "naif, simple-minded men" as appellate judges, see Holmes, Collected Legal Papers 295 (1920), can be expected to possess. And we are wholly unimpressed by the criticisms now made of the judge's summary of this evidence, to which counsel took no exception at the time. See United States v. Kahaner, 317 F.2d 459, 478-479, 482 (2 Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed. 2d 65 (1963).

The only serious point of law raised by appellants is whether the transportation of papers describing the Lederle processes constituted the transportation in interstate or foreign commerce of "any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." 18 U.S.C. § 2314. The problem is not any doubt on our part that papers describing manufacturing procedures are goods, wares, or merchandise, as was held with respect to geophysical maps in United States v. Seagraves, 265 F.2d 876 (3 Cir. 1959), and United States v. Lester, 282 F.2d 750 (3 Cir. 1960), cert. denied, 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368 (1961). Neither do we have any concern over the value of these papers, since we dismiss out of hand the contentions that secret processes for which European drug manufacturers were willing to pay five and six figures and in whose illicit exploitation appellants eagerly invested a large portion of their time and an appreciable amount of their fortunes were not worth the $5,000 required to subject them to federal prosecution, see United States v. Schaffer, 266 F.2d 435, 440 (2 Cir. 1959), aff'd, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed. 2d 921 (1960), or that the judge committed any prejudicial error in his submission of that issue to the jury. If Abbott v. United States, 239 F.2d 310, 312-313 (5 Cir. 1956) is to be considered as ruling out evidence of value in a thieves' market, we prefer the contrary Third Circuit holdings in United States v. Seagraves, supra, 265 F.2d at 880, and United States v. Lester, supra, 282 F.2d at 754-755. The serious question is whether, on the facts of this case, the papers showing Lederle processes that were transported in interstate or foreign commerce were "goods" which had been "stolen, converted or taken by fraud" in view of the lack of proof that any of the physical materials so transported came from Lederle's possession. The standard procedure was for Fox and Cancelarich to remove documents from Lederle's files at Pearl River, N. Y., take these to Fox' home within New York state, make photocopies, microfilms or notes, and then restore the purloined papers to the files; only the copies and notes moved or were intended to move in interstate or foreign commerce. The case differs in this respect from the Third Circuit cases of Seagraves and Lester where, as the records on appeal show, the photostats and tracings delivered by the Gulf Oil geologist were the property of the company, having been made in the company's office, on its paper and with its equipment.

We are not persuaded, however, that a different result should obtain simply because the intangible information that was the purpose of the theft was transformed and embodied in a different physical object. To be sure, where no tangible objects were ever taken or transported, a court would be hard pressed to conclude that "goods" had been stolen and transported within the meaning of § 2314; the statute would presumably not extend to the case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed. The situation, however, is quite different where tangible goods are stolen and transported and the only obstacle to condemnation is a clever intermediate transcription or use of a photocopy machine. In such a case, when the physical form of the stolen goods is secondary in every respect to the matter recorded in them, the transformation of the information in the stolen papers into a tangible object never possessed by the original owner should be deemed immaterial. It would offend common sense to hold that these defendants fall outside the statute simply because, in efforts to avoid detection, their confederates were at pains to restore the original papers to Lederle's files and transport only copies or notes, although an oversight would have brought them within it. We have been instructed to "free our minds from the notion that criminal statutes must be construed by some...