United States v. Brewer, Crim. A. No. 73-197.

• Decision Date: 26 March 1974
• Docket Number: Crim. A. No. 73-197.
• Citation: 373 F. Supp. 1038
• Parties: UNITED STATES of America v. Richard Laverne BREWER.
• Court: U.S. District Court — Eastern District of Pennsylvania

373 F. Supp. 1038

UNITED STATES of America v. Richard Laverne BREWER.

Crim. A. No. 73-197.

United States District Court, W. D. Pennsylvania.

March 26, 1974.

Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., for plaintiff.

Richard J. Catalano, Pittsburgh, Pa., for defendant.

OPINION AND DECREE

SNYDER, District Judge.

The Defendant, Richard Laverne Brewer, was found guilty on September 13, 1973, after a jury trial, of causing to be transported in interstate commerce an American Express Company Money Order payable to one Emma Cylesta and endorsed by him as "Edwin G. Meyers", in violation of 18 U.S.C. § 2314.¹ Defendant's Counsel filed a Motion for New Trial setting forth that the Court erred in denying Defendant's Motion for Acquittal at the conclusion of the Government's evidence, and that the verdict was contrary to the weight of the evidence and not supported by substantial evidence. Subsequent to the presentation of the Motion, Trial Counsel, Carl Max Janavitz, filed a Motion for Withdrawal of Appearance indicating a disagreement between Counsel and the Defendant with respect to the advisability of proceeding with the Appeal, and of Counsel's inability to receive communications from the Defendant. The Defendant had informed Counsel that he would seek to have other counsel appointed to represent him and that he was unable to advance the costs needed for the preparation of the transcript which was required for the argument on the Motion for New Trial.

On October 26, 1973, Mr. Janavitz was given leave to withdraw his appearance when the Defendant appeared in Court and concurred in the withdrawal and asked the Court to appoint counsel for him as an indigent. After proper Affidavit of Indigency was filed, Richard Catalano, Esquire, was appointed and he filed a Brief and argued the Motion before this Court.

As part of the record, Mr. Catalano presented an Affidavit from the former counsel, Janavitz, stating in pertinent parts as follows:

"1. That he was originally retained by Richard Laverne Brewer to represent him in the above-captioned criminal matter, on a private fee arrangement basis;

2. That in discussing the case with Mr. Brewer prior to trial, he advised Mr. Brewer that in order to have a handwriting expert of his own review the matter and appear in court to testify, it would cost Mr. Brewer approximately $1,500.00 to $2,000.00;

3. That Mr. Brewer indicated clearly that he was unable to pay such an amount and, therefore, the services of an expert were never made available to Mr. Brewer;

4. That Mr. Brewer was never able to pay his full fee and only a token amount was received from him prior to trial;

5. That in his opinion, it may have been in the best interests of Mr. Brewer to have asked the court to declare him an indigent prior to trial so that he could have received appointed counsel and the services of an expert to testify on his behalf in order to properly protect his interests and to insure a fair trial."

The Government did not choose to file any counter affidavits or a brief, but argued contra the Defendant's Motions.

On March 31, 1972, a group of forty blank American Express Money Orders was sent by mail from the American Express Company in Trenton, New Jersey, to one of its agencies which was maintained at Giant Eagle Supermarket Store Number 8, located on Beaver Avenue in the City of Pittsburgh. A trust receipt was to be signed by the appropriate personnel at the Supermarket and returned to the Express Company, again by mail, to verify that the money orders had in fact been received. When the trust receipt was not received by the American Express Company, a reminder letter was sent to Giant Eagle requesting information as to whether or not the money orders had been received. On July 28, 1972, the particular money order charged in the Indictment, and one of the group of money orders sent from American Express to the Giant Eagle Supermarket, was presented through banking channels at the New York Office of the American Express Company and was paid.

Normally the Trenton Office, at approximately three week intervals, would request by letter that Giant Eagle acknowledge receipt or non-receipt of the forty money orders. But as copies of these letters are not kept, the Government offered only a letter dated August 23, 1972, some five months after the original shipment, asking for information from Giant Eagle on the receipt of the money orders. In August of 1972, and by phone, it was indicated to the American Express Company that the money orders had not been received as far as the records of Giant Eagle were concerned.

Upon realization by the Local Giant Eagle Supermarket of the deficiency, the Regional Office Manager, Louis Mendlow, directed the Security Officer of Giant Eagle to make an investigation. Upon examination of the money order in question, which was forwarded to the Security Officer, it was determined that the money order was cashed at Store Number 8 and deposited into the Giant Eagle Account at the Chateau Plaza Branch of Mellon Bank, located next to the Store. There were other money orders also that apparently had been forged and cashed and deposited into that account (this evidence was received without objection by Counsel for the Defendant). After this examination, the checks were turned over to the custody of Special Agent Joseph Vidovich of the Federal Bureau of Investigation.

Giant Eagle's Security Officer testified that there was a storewide policy that money orders are not to be cashed except in the case of a person coming in and purchasing a money order and then returning shortly thereafter, it could be cashed for the face value. Money orders are also not permitted to be accepted in payment of purchases. Check cashing is done only for customers who have filled out check cashing reference cards and who have received a key number authorizing checks to be cashed in that particular store.

Only three persons were authorized to prepare and sell money orders in Giant Eagle Stores and they were the Manager, the Assistant Manager, and the "third man". During the period from March to August of 1972, Richard Brewer, the Defendant, was the Manager of Store Number 8, the Assistant Manager was Edward Cerny, and the "third man" was Roland Curry.

The Security Officer examined the books of Store Number 8 for a record showing the completion of the sale of the money orders and the deposit of the money. Such a record is normally kept at the Main Office where the book is sent from the Store, and is then sent on to the American Express Company. However, in this instance, a very thorough search of the records did not disclose any record of the money orders contained in the two missing books which had never been acknowledged to have been received at Store Number 8. Nor was there any record, any place, of the sale of any of these money orders. During the investigation by the Security Officer, and prior to going to the Federal Bureau of Investigation, the Security Officer talked to the Defendant who denied knowing anything about them. The Officer also interviewed Mr. Curry and Mr. Cerny, and no one seemed to know anything about the money orders. Further, the Security Officer took Defendant to the Company Office and had him examine the money orders that had been cashed; photostatic copies having been forwarded from the Trenton Office. Mr. Brewer could not recall the money orders but said he was aware of some of the names as being on their approved check cashing list, and later Brewer and the Security Officer went back to Store Number 8 and they did come up with several of the names on the money orders but not the name of Emma Cylesta. In checking over the list they came upon one of the "purchasers" of a money order who died several months prior to the cashing of the money order with his name on it and several other purchasers who had moved out of the area before the time of the receipt of the money orders with their names thereon. Polygraph tests were given to all three of the management people at Store Number 8. The Security Officer went with Brewer to the Mellon Bank, Chateau Plaza Office, to check further on the deposit of the money orders into the Giant Eagle Account. At the bank, several of the money orders were found that were among the forty missing money orders. None of the money orders were touched at any time by the Defendant Brewer during the course of the investigation. These money orders were then turned over to the Federal Bureau of Investigation.

The F.B.I. Agent, as part of his investigation, interviewed the Defendant, who denied ever having seen the money orders before the investigation by the Security Officer. He was asked specifically if he had ever touched the money orders and he informed the Agent that he did not know anything about them. The Agent was most careful to point out that Mr. Brewer was given no opportunity to handle the money orders. Mr. Brewer did state to the Agent that the management team was solely responsible for the issuance of money orders and that because of this, he felt it would take a person in a management position to have cashed such an item, contrary to the rules of the Company.

The Agent also secured some handwriting samples from the Defendant and together with the money orders picked up at the bank (which, as previously noted, had not been handled by the Defendant during the investigation) were sent to the F.B.I. Laboratory in Washington, D. C. for examination for handwriting and fingerprint purposes.

Agent William Newbrough of the Washington Office, a Document Examiner, qualified by special training and study in such examination, examined the particular money order payable to Emma Cylesta which was enclosed in a plastic envelope. He made photographs of the money order and compared the endorsement with the handwriting samples. The opinion of Agent Newbrough was that the Defendant had forged the endorsement on the back of the money...