United States v. Fistel

• Decision Date: 17 May 1972
• Docket Number: No. 608,Docket 71-2196.,608
• Parties: UNITED STATES of America, Appellee, v. Stanley M. FISTEL, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

460 F.2d 157 (1972)

UNITED STATES of America, Appellee, v. Stanley M. FISTEL, Appellant.

No. 608, Docket 71-2196.

United States Court of Appeals, Second Circuit.

Argued March 8, 1972.

Decided May 17, 1972.

H. Richard Uviller, New York City (Abraham Glasser, New York City, on brief), for appellant.

John H. Gross, New York City, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.

Before FRIENDLY, Chief Judge, TIMBERS, Circuit Judge, and JAMESON, District Judge.^*

JAMESON, District Judge:

Appellant, Stanley M. Fistel, was charged in a single-count indictment with unlawfully and knowingly possessing nine $100,000 United States Treasury Bills which had been unlawfully taken from Manufacturers Hanover Trust Company, in violation of 18 U.S.C. § 2113(c).¹ He was convicted, following jury trial, and sentenced to eight years imprisonment.

Appellant contends that (1) the indictment is void for failure to state an offense; (2) the evidence was insufficient on the elements of the stolen character of the bills and his scienter; (3) the eight year sentence is illegal and unjust; and (4) the court erred in denying his motion for a new trial.

Summary of Evidence

Vincent Mathushek, a posting clerk for the Manufacturers Hanover Trust Company, testified that according to the bank records the nine bills found in appellant's possession were received at the bank on July 23 and 27, 1970, and there was no record that they had ever left the bank's custody lawfully. On July 28, 1970 it was discovered that 17 $100,000 bills, including the nine in appellant's possession, were missing.² Five employees searched the bank for two days but were unable to find the bills. A "lost securities" alert was then sent to other banks.

Willis E. Walton, an F.B.I. agent, testified that on November 10, 1970 he and Agent Witkowski, while working undercover, were introduced to Fistel in Schrafft's Restaurant in Manhattan. Fistel, who was using the alias "Nat Gold", offered to sell Walton $1,000,000 in treasury bills for 25 "points" or $250,000. Walton stated that he "couldn't pay 25 points," but "was willing to offer 20 points." Fistel replied that he didn't think "his people" would "buy that." Fistel left the room and upon his return stated that he had made a phone call to "his people", and that "20 per cent was acceptable."

Later an envelope containing treasury bills was delivered to Fistel at the restaurant.³ Walton and Witkowski examined the envelope, and Witkowski then left. Walton found only nine bills and was informed by Fistel that the tenth bill had been sold.

Walton and Fistel then proceeded by taxi to Manufacturers Hanover Trust Company where Walton had his money. On the way Walton told Fistel he was "skeptical" about Fistel's statement regarding the tenth bill and was worried that the "stuff was counterfeit or there would be a switch along the way." Fistel told Walton not to worry, that the "stuff" was stolen and that "there was a large amount more available."

Prior to entering the bank Walton examined the bills more closely and found they were listed in a "stolen bank flier" in his possession.⁴ He was assured again by Fistel that the bills "have been stolen; they are not counterfeit."

After entering the bank vault Fistel again stated that the bills had been stolen.⁵ He also wrote the name "Nat Gold" and his address on the back of the bank flier, so that Walton "could reach him from overseas or through telephonic contact", in case Walton "had to make another offer or deal with him." Walton then showed Fistel some money he had in a safety deposit box, and shortly thereafter other F.B.I. agents entered the vault room and arrested Fistel.

F.B.I. Agent Harry Gossett testified that he was posing as a vault employee and was among the arresting agents. While listening at the door before entering the vault Gossett heard "Fistel saying something to the effect that Special Agent Walton needn't consult his list any further, that these items were listed there, and that he had six more which would also appear on that list."

Fistel, a lawyer, called two character witnesses and took the stand himself. He testified that on November 10, 1970 he was asked by Frank Goran, manager of Fistel's insurance brokerage corporation, located in the same suite as Fistel's law office, to represent Goran "in drawing up some legal papers for the return of certain securities which a client had received through a mistaken delivery and which was being returned for remuneration, 15 per cent of its face value." It seemed to Fistel "a perfectly legal transaction." Later the same day Goran told Fistel "an appointment had been made for Nat Gold to meet some people, and that he wanted me to go instead because I would be able to draw up the agreement." Goran asked Fistel to "renegotiate" in order to "get more money for the return of these securities, an extra five or ten per cent" and gave Fistel a copy of one of the bills.

Fistel testified that he went to Schraffts with a Jack Kramer, who introduced him to two men, one of whom was Agent Walton. He was under the impression that both men were representatives of a bank or insurance company. After some negotiation Walton "agreed to an extra five per cent." Fistel offered to take Walton to Fistel's office "so you can meet my client and conclude your business transaction with him." Walton "absolutely refused" and "insisted that the securities be brought to him so he can take them to the bank to be validated." Goran brought the securities to the restaurant. Fistel accompanied Walton to the bank, where he was arrested.

Fistel denied using Nat Gold as an alias or stating that the securities were stolen. When asked why he had written the name Nat Gold with his office address and telephone number on the flier he explained that Goran had told him to have them "get in touch with Nat Gold" if there were any questions.⁶

Is the Indictment Void?

Appellant contends, for the first time on appeal, that the indictment is void for failure to charge an offense in that it "charges the scienter only in the words `knowing the said treasury bills to have been taken from a bank'" and omits the essential allegation that the taking was "in violation of subsection (b)."⁷ The Government argues that the indictment "adequately, if inartfully, charges Fistel with the requisite guilty knowledge." The indictment was not only "inartfully" drawn; it was clearly defective in omitting the essential element of "intent to steal or purloin" required to state an offense under § 2113(b). Had appellant filed a motion to dismiss the indictment prior to trial, dismissal would have been required.

It is true, of course, that the failure of an indictment to charge an offense may be presented "any time during the pendency of the proceeding." Rule 12, F.R.Crim.P. However, "the courts of the United States long ago withdrew their hospitality toward technical claims of invalidity of an indictment first raised after trial, absent a clear showing of substantial prejudice to the accused — such as a showing that the indictment is `so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.'" United States v. Thompson, 356 F.2d 216, 226 (2 Cir. 1965) cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966).⁸

While the indictment here does not allege that the bills were taken in violation of § 2113(b) or were taken "with intent to steal", it does allege that appellant "unlawfully, wilfully and knowingly" had in his possession bills "which had been unlawfully taken and carried away" from a bank, "knowing the said treasury bills to have been taken from a bank." This language sufficiently defines conduct made criminal by § 2113(c), and particularly the element of scienter, to survive post-trial attack in the absence of some showing of prejudice.

We find no showing of prejudice. Appellant, a lawyer himself, was represented by competent, retained counsel. As in Thompson, the case was tried upon the clear understanding that it was necessary for the Government to prove that the securities were stolen from a bank, and that Fistel knew they were stolen. This was recognized at all stages of the proceedings.⁹ In particular, it was expressly recognized by defense counsel in his summation. In referring to what the Government must prove under the indictment he said in part: "In order to sustain a conviction for Mr. Fistel the government must prove what they say in this indictment that these securities were carried away and stolen from a bank, that Mr. Fistel knew they were stolen, and knew they were stolen from the bank. * * * Well Mr. Fistel has to know that they are stolen, according to this indictment, before he can be convicted of anything."

The court charged the jury in pertinent part:

"Now, in order to convict Mr. Fistel of wilful and knowing possession of these nine treasury bills, you must find beyond a reasonable doubt that he knew that these treasury bills, which he admits he possessed for a time on November 10, 1970, had been taken or carried away from a bank by someone who had the intention to steal, or as it is sometimes put, purloin those bills from a bank."

The cases of United States v. Roach, 321 F.2d 1, 3-4 (3 Cir. 1963) and United States v. Harris, 346 F.2d 182, 184 (4 Cir. 1965) lend support to appellant's position. Both cases hold that the mere allegation that money was "taken" from a federally insured bank without alleging that the taking was in violation of § 2113(b) renders an indictment under § 2113(c) "fatal" (Roach) or "faulty" (Harris). Neither opinion states when the defendants first challenged the indictments. In Roach, the Government conceded that the § 2113(c) count was defective, 321 F.2d at 3, and that the trial court erroneously instructed the jury that it could find Roach guilty on all counts,...