United States v. Carney, Crim. A. No. 2082.

• Decision Date: 20 July 1971
• Docket Number: Crim. A. No. 2082.
• Citation: 328 F. Supp. 960
• Court: U.S. District Court — District of Delaware
• Parties: UNITED STATES of America, Plaintiff, v. Charles Patrick CARNEY et al., Defendants.

328 F. Supp. 960

UNITED STATES of America, Plaintiff, v. Charles Patrick CARNEY et al., Defendants.

Crim. A. No. 2082.

United States District Court, D. Delaware.

July 20, 1971.

COPYRIGHT MATERIAL OMITTED

F. L. Peter Stone, U. S. Atty., Richard D. Levin, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Edward Z. Sobocinski, Wilmington, Del., for defendant Charles Patrick Carney.

OPINION

STAPLETON, District Judge.

The indictment in this action charged Charles Patrick Carney in four counts. Counts I and II alleged that he caused two forged and falsely made checks to be transported in interstate commerce in violation of 18 U.S.C. § 2314. Count III alleged that Carney received and concealed a stolen automobile which was moving as interstate commerce in violation of 18 U.S.C. § 2313. Count VI charged that Carney conspired with Claire Sturm, John Blandford and Francis Mahon, Jr. to cause the interstate transportation of forged and falsely made checks in violation of Title 18 U.S.C. § 371. A trial was held on May 26, 27 and 28, 1971, and verdicts of guilty were returned on Counts I, II and VI. A verdict of not guilty was returned on Count III. Defendant Carney has filed a motion for judgment of acquittal, urging numerous grounds.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that there was insufficient evidence to support a conviction on Counts I, II and VI because (1) there was no evidence that any of the checks involved were forged or falsely made and (2) there was no evidence of the formation of an illegal agreement between the alleged co-conspirators. The standard to be applied in passing upon such contentions made in support of a motion of acquittal is well settled. "The Court scrutinizes the evidence, including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying an inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion." United States v. Wolfson, 322 F.Supp. 798 (D.Del. 1971).

I have carefully reviewed the transcript of the trial. The evidence, analyzed from any perspective,¹ overwhelmingly established that defendant Carney was the leader of a conspiracy to defraud various banks and businesses in part by the use of falsely made and forged checks. There clearly was relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt, that a conspiracy existed, that the checks involved were falsely made and forged, and that Mr. Carney knew this.

The first of the two checks and the one referred to in Count I (hereinafter "the Count I check") was check No. 1311 of the American Finance Management Corporation drawn on the Fidelity Bank of Philadelphia, Pennsylvania for $11,685.13. It purported to be signed by George Ellis Kohn, Sr. on behalf of the corporation, was dated October 16, 1970 and was payable to Clinton C. Frank. (GX 2). The check referred to in Count II (hereinafter "the Count II check") was check No. 5 of T. Thomas Cromley drawn on the Mellon National Bank and Trust Company of Pittsburgh, Pennsylvania, for $2,311.17. It purported to be drawn by T. Thomas Cromley, was dated November 3, 1970, and was payable to Clinton C. Frank. (GX 3).

Direct evidence of the following facts was presented at trial.

Mahon and Blandford stole a book of blank checks of the American Finance Management Corporation containing what ultimately became the Count I check and gave the book to Carney. (T. 348-349). On October 26, 1970, Carney, while accompanied by a white female, opened an account in the name of Clinton C. Frank at the Farmers Bank in Wilmington, Delaware. (T. 49-52).

On Wednesday, November 4, 1970, two individuals registered at the Holiday Inn motel in Newark, Delaware, under the name of T. Tellis Cromley. They expressed an intention of remaining until November 8, 1970 and were assigned room 147. Carney and Sturm were occupying that room on the morning of November 7, 1970. The November 4th registration remained in effect at that time. (T. 232-233; 246; GX 14).

On Thursday, November 5, 1970, Carney entered the Brookside office of the Farmers Bank and deposited the Count I check in the account of Clinton C. Frank. (T. 53-56). This check had been made out with a checkwriting machine and Carney had signed Kohn's name on the check, as drawer, in Blandford's presence. (T. 368; GX 2).

Around noontime on Thursday, November 5, 1970, the Count II check was deposited at the Newark branch of the Farmers Bank in the account of Clinton C. Frank. (T. 76).

On Friday morning, November 6, 1970, Carney entered the Brookside office of the Farmers Bank, representing himself as Clinton C. Frank. He asked for a balance on his account and inquired whether he could buy travelers checks there. (T. 166-168). At about 2:15 P.M. on that date, Carney entered the 30th and Market Street branch of the Farmers Bank with a white female and tried to cash a check for $955.37 drawn on the American Finance Management Corporation's account with the Fidelity bank. The check contained a notation "3rd payment on property sale". He was told that he would have to deposit the check and draw one of his own. He made this deposit in the account of Clinton C. Frank and cashed a check. He then tried to purchase ten travelers checks each in the amount of $100 with a personal check on the Clinton C. Frank account. (T. 110-119); 157-167; GX 4).

On Friday evening, November 6, 1970, Carney entered the Brookside office of the Farmers Bank and attempted to cash a $200 check. By this time his activities had caused concern and an alert had been placed on the Clinton C. Frank account. He was referred to the manager. (T. 66-67). In the meanwhile, a bank employee had secured the license number of Mr. Carney's vehicle. (T. 174).

Both the Count I and the Count II checks were returned to the Farmers Bank by the banks upon which they were drawn. (T. 182-185).

On one occasion, Carney and Blandford went into a jewelry store and selected a ring. They made a deposit on it with a check signed by Blandford in the name of Thomas Cromley. Blandford also cashed a check in Philadelphia which he had signed with the name Clinton Frank. (T. 360).

At 1:32 A.M. on November 7, 1970, an individual identified later that morning as Mahon registered in room 249 of the Holiday Inn motel, Newark, Delaware, under the name of C. C. Frank. (T. 235-236; GX 15). Carney and Sturm were staying there together in room 147. Blandford and Mahon went to room 147 in the course of the morning. The four spent fifteen to twenty minutes together in that room. (T. 276).

On the morning of November 7th, the four alleged co-conspirators had the following, among other things, with them at the motel:

1. A checkwriting machine. (GX 22).

2. Previously stolen, printed blank checks for the account of American Finance Management Corporation with the Fidelity Bank, Philadelphia, Pennsylvania. Among them were checks Nos. 1308, 1309 and 1312-1320. (GX 17, 19).

3. Five executed but unnegotiated checks of the American Finance Management Corporation drawn on the Fidelity Bank, Philadelphia, Pennsylvania, made payable to Clinton C. Frank and purportedly signed by George Ellis Kohn, Sr. Each check was in the amount of $955.37. Check No. 1420 was labeled "1st payment on property sale" and dated October 21, 1970; Check No. 1323 was labeled "2nd payment on property sale" and dated October 28, 1970; Check No. 1392 was labeled "4th payment on property sale" and dated November 1, 1970; Check No. 1399 was labeled "5th payment on property sale" and dated November 3, 1970; and Check No. 1421 was labeled "6th payment on property sale" and dated November 4, 1970.

4. A checkbinder containing 19 unnumbered personal checks for the account of T. Thomas Cromley with the Mellon National Bank and Trust Company, Pittsburgh, Pennsylvania.

5. A social security account card and a Delaware temporary operators permit both in the name of "Clint C. Frank".

6. Blank personal checks for the account of Clinton C. Frank with the Farmers Bank.

7. Five deposit receipts evidencing deposits to the account of Clinton C. Frank in the Farmers Bank as follows: $300.00 on October 27, 1970; $955.37 on November 1, 1970; $11,685.13 on November 5, 1970; $205.00 on November 5, 1970 and $2,311.17 on November 5, 1970.

8. A number of sales receipts showing purchases of jewelry and other merchandise in the Wilmington area by Clinton C. Frank.²

After his arrest, Carney denied having violated any federal laws but told the FBI that he was in need of money and had hired Blandford and Mahon as "runners" to assist him in a scheme to obtain merchandise with worthless checks and resell it for cash. Carney further stated that he had instructed Mahon to use the name Clinton Frank. (T. 307-309).

I instructed the jury that a check is forged and falsely made if someone without authority signs it as the drawer with the name of another person or with a fictitious name with the intent to defraud. See Jones v. United States, 234 F.2d 812 (4th Cir. 1956); Wright v. United States, 172 F. 2d 310 (9th Cir. 1949). With respect to Count I, there was direct testimony that Carney signed the name of George Ellis Kohn, Sr. as drawer on a stolen check, made that check payable to a fictitious name or alias used by himself as well as others of his associates, and deposited it in an account from which he could, and did, draw funds. These facts, along with the similar executed checks found in Carney's possession at the motel,³ lead inescapably to the conclusion that Carney was unauthorized to sign the Count I check, that he did sign it, and that his purpose was to defraud.

With respect to Count II, defendant correctly points out that there was no direct evidence of how or by whom the Count II check was drawn. It does appear from the evidence, however, that Carney had a T. Thomas...