United States v. Brown

Decision Date05 August 1964
Docket NumberNo. 507,Docket 28769.,507
Citation335 F.2d 170
PartiesUNITED STATES of America, Appellee, v. Norman BROWN and Zelman Fairorth, Appellants.
CourtU.S. Court of Appeals — Second Circuit

Michael F. Armstrong, Asst. U. S. Atty. for Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., and Peter E. Fleming, Jr., Asst. U. S. Atty., on the brief), for appellee.

Marshall I. Stewart, New York City, for appellants.

Before FRIENDLY, SMITH and MARSHALL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

Zelman Fairorth and Norman Brown were convicted on trial to the jury in the United States District Court for the Southern District of New York, Archie O. Dawson, Judge, on two counts of aiding and abetting the interstate transportation of stolen securities, 18 U.S.C. § 2 and § 2314, and one count of conspiracy to do so, 18 U.S.C. § 371. They appeal from sentences of imprisonment. We find no error and affirm the convictions.

On two occasions in June, 1962, securities abstracted from the vault of Sutro Brothers and Company, a New York brokerage house, were sold with the assistance of a Philadelphia broker named Greenbaum, who employed appellant Brown as a trader. The major figure in the scheme was one Wuensche, purported operator of a Pennsylvania construction and dredging concern. Fairorth, a Philadelphia attorney, had advanced substantial amounts of money to assist in financing Wuensche's company under an agreement to share in the profits. In the two transactions in stolen securities, Fairorth assisted with letters confirming that "Wentz" was the possessor of the securities, in order to forestall inquiry of Sutro Brothers. The certificates, held for customers' accounts (in one instance for 43 shares of IBM, 100 shares of A. T. & T. and 100 shares of General Tel. & Electronics, and in the second instance, 500 shares of A. T. & T.), were in Sutro's name and had been endorsed by Sutro before they were abstracted from its vault. Brown, according to the Government's proof, approached Greenbaum to enlist his aid in the sale of the stolen securities, Brown having been told that they were being obtained from a customer's portfolio and would have to be put back within six months. Wuensche, testifying for the Government, claimed to have paid Brown and Fairorth, as well as Greenbaum and others, part of the proceeds of the sales.

Fairorth, who represented himself at the trial, contends that the proof of his complicity was insufficient, that the weight of the evidence favored him, that he should have been granted a new trial because of newly discovered evidence that he was insane at the time of trial, that he was not represented by counsel and that he was incompetent to represent himself.

Brown also contends that the evidence was insufficient, that Fairorth was insane and that his insanity infected Brown's trial. He also claims error in the denial of a motion for severance and in the vagueness of the indictment.

We find these contentions unpersuasive.

Brown's motion for severance was a matter within the discretion of the court. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101, Butler v. United States, 317 F.2d 249, 8 Cir., cert. denied 375 U.S. 838, 84 S.Ct. 77, 11 L.Ed.2d 65 (1963). Neither the number nor background of defendants charged nor the nature of Brown's alleged connection with the claimed conspiracy indicated a likelihood of prejudice from joinder, given proper instructions to the jury on individual guilt. Such instructions were given. Indeed, two of the five tried together were acquitted. Compare De Grandis v. Fay, 2 Cir., 1964, 335 F.2d 173.

The attack on the indictment is not well taken. The indictment sufficiently identifies the substantive crimes charged to give Brown notice of the offenses, to enable him to prepare his defense and to protect against subsequent prosecution for the same offenses. This is enough, Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932). Further details, if desirable, could have been sought by motion for bill of particulars. United States v. Varlack, 225 F.2d 665 (2 Cir. 1955). The conspiracy count is likewise sufficient. There is no requirement that a conspirator be charged with personal participation in one of the overt acts charged, so long as evidence of his own conduct has proved his participation in the conspiracy and some one of the overt acts charged has been performed by a co-conspirator in behalf of all.

This court cannot substitute itself for the jury in determining the credibility of the witnesses and the weight of the evidence. United States v. Stromberg, 268 F.2d 256, 266-267 (2 Cir.), cert. denied 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed. 2d 102 (1959); United States v. Tutino, 269 F.2d 488, 490 (2 Cir. 1959). Wuensche's testimony alone, which is corroborated in many respects (for instance Fairorth's letters introducing Wuensche under the alias of Wentz), if believed by the jury, amply...

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15 cases
  • United States v. Knohl
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 22, 1967
    ...is not discovered until after he has been convicted and sentenced, cannot attack the sentence collaterally. United States v. Brown, 335 F.2d 170, 173 (2 Cir. 1964). Pate v. Robinson, supra, makes clear, that such collateral attack may be In the present case the parties, with the apparent ap......
  • United States v. Santoro
    • United States
    • U.S. District Court — Eastern District of New York
    • July 10, 1986
    ...1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977), or that every conspirator be alleged to have committed an overt act, United States v. Brown, 335 F.2d 170, 172 (2d Cir.1964). Accordingly, as long as the indictment properly charges that each defendant knowingly and willfully participated in a sch......
  • United States v. Sweig
    • United States
    • U.S. District Court — Southern District of New York
    • June 15, 1970
    ...(S. D.N.Y.1967); see United States v. Universal Camera Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 97 L.Ed. 260 (1952); United States v. Brown, 335 F.2d 170, 172 (2d Cir. 1964); United States v. Wora, 246 F.2d 283, 286 (2d Cir. The argument that Count Fifteen fails to state a crime, while the c......
  • United States v. Pilnick, 66 Cr. 958.
    • United States
    • U.S. District Court — Southern District of New York
    • April 25, 1967
    ...715-717 (S.D.Fla.), cert. denied sub nom. Hoffa v. Lieb, 371 U.S. 892, 83 S.Ct. 188, 9 L.Ed.2d 125 (1962). 5 See United States v. Brown, 335 F.2d 170, 172 (2d Cir. 1964); United States v. Ketchum, 320 F.2d 3, 8 (2d Cir.), cert. denied, 375 U.S. 905, 84 S.Ct. 194, 11 L. Ed.2d 145 6 United St......
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1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...and intelligently waived though defendant lacks legal knowledge or skill to raise objections and cross-examine witnesses); U.S. v. Brown, 335 F.2d 170, 172 (2d Cir. 1964) (right to counsel may be knowingly and intelligently waived though defendant lacks knowledge in specif‌ic area of law); ......

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