United States v. Friedland

• Decision Date: 11 March 1968
• Docket Number: Docket 31474.,No. 233,233
• Citation: 391 F.2d 378
• Parties: UNITED STATES of America, Appellee, v. Edward S. FRIEDLAND, Appellant,
• Court: U.S. Court of Appeals — Second Circuit

391 F.2d 378 (1968)

UNITED STATES of America, Appellee, v. Edward S. FRIEDLAND, Appellant,

No. 233, Docket 31474.

United States Court of Appeals Second Circuit.

Argued January 3, 1968.

Decided March 11, 1968.

Terry F. Lenzner, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., and Andrew M. Lawler, Jr., Asst. U. S. Atty., for Southern Dist. of New York, on the brief), for appellee.

H. Elliot Wales, New York City, for appellant.

Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.

LUMBARD, Chief Judge:

Edward S. Friedland appeals from a judgment, entered after trial before Judge Tyler and a jury in the Southern District of New York, convicting him of receiving and transporting counterfeit securities in interstate commerce and conspiring to do so, in violation of 18 U.S.C. §§ 2314, 2315, 371 and 2. Appellant argues that proof of certain facts below was barred by collateral estoppel resulting from his prior acquittal on another charge in federal court in California. He also asserts error in the court's charge on intent, in the interruptions by government counsel during appellant's summation, and in the court's failure to provide a particular defense exhibit requested by the jury during its deliberations. We find no reversible error in the proceedings below and affirm the judgment of conviction.

The indictment — containing one conspiracy count and four substantive counts relating to the transportation of counterfeit bonds on May 15, 1965, from Newark, New Jersey, to New York and from New York to Paris — named appellant, co-defendants Dennis Lorraine, Richard Randall, George Mahler, Leo Sagal and Max Desatnick, and unindicted co-conspirator Thomas Roe. Only appellant went to trial. The government — chiefly through the testimony of co-defendants Lorraine, Randall and Desatnick — presented the following case.

In April 1965 defendant Lorraine, an English businessman in serious financial difficulty, came to the United States to obtain counterfeit securities for himself and his partner Thomas Roe. Shortly after his arrival, Lorraine was brought by defendant Randall to appellant's office in New York City and introduced to appellant, who is an attorney. After initial hesitation, appellant agreed to find a source of counterfeit securities for Lorraine.

In early May 1965, Randall and Lorraine returned to appellant's office, where appellant introduced Lorraine to defendant Mahler, saying that Mahler could supply counterfeit securities. Lorraine agreed to purchase from Mahler $100,000 worth of counterfeit International Telephone and Telegraph and Standard Oil of California bonds. After Mahler left, Lorraine gave appellant $2000 to purchase one genuine IT&T bond and one genuine Standard Oil bond, so that Lorraine could check the quality of the counterfeit bonds.

Within the next few days appellant obtained the genuine IT&T bond but had difficulty obtaining the Standard Oil bond. Lorraine said that he couldn't wait any longer and told appellant to contact Mahler and put through the order for the $50,000 worth of IT&T bonds.

When Lorraine returned to appellant's office on May 14, appellant informed him that the genuine Standard Oil bond had arrived, but Lorraine said that it was too late to change the plans. Since Lorraine was leaving the country that evening, he gave Randall the $12,500 purchase price for the bonds, telling Randall to have co-conspirator William Rose deliver the bonds to Lorraine or Roe in Paris. Appellant made arrangements for the delivery of the bonds in Newark, New Jersey, on the following day.

On May 15, appellant and Randall drove in appellant's car to the Robert Treat Hotel in Newark, where they met Mahler. After they gave him the money, Mahler left the hotel and obtained the bonds from defendants Desatnick and Sagal. Mahler placed the bonds in the trunk of appellant's car, having previously obtained appellant's keys for this purpose, and then returned to appellant and Randall.

After leaving the hotel, appellant and Randall drove to the East Side Airline Terminal in New York, where Randall purchased a ticket to Paris for Rose, and then to Randall's office. In appellant's presence, Randall gave the bonds to Rose and instructed him to deliver them to Lorraine in Paris. Appellant then drove Rose to the airline terminal.

Rose flew to Paris that evening and delivered the bonds to Lorraine and Roe. The bonds were pledged with a European bank and were later transferred back to the United States, where they were eventually discovered to be counterfeit.

Appellant, testifying in his own defense, admitted the meetings with Lorraine, Randall and Mahler in his office and the purchase of the genuine bonds for Lorraine. He also admitted being present at the Robert Treat Hotel with Randall and Mahler. However, appellant claimed that his dealings with Lorraine involved only the provision of legal advice concerning legitimate business activities and that, while he was aware that Lorraine and Randall were involved in an illegal transaction with Mahler, he took no part in this transaction and did not join in the conversations relating to it.

Appellant was found guilty on all five counts by the jury and was sentenced by Judge Tyler to concurrent terms of five years imprisonment on each count.

Appellant's first argument on appeal relates to the effect of his acquittal at a prior trial in the United States District Court for the Southern District of California on a charge of conspiring to buy and sell counterfeit currency. In the court below, appellant claimed that the prosecution of the present case subjected him to double jeopardy, since the offense charged was another aspect of the same alleged conspiracy involved in the California trial. On this ground, appellant moved before trial to dismiss the government's case and during the trial again moved for dismissal or a directed verdict of acquittal on the conspiracy count. The court below denied all these motions on the basis that the two charges were entirely different, requiring proof of different facts as well as being based on different law, and could not under any theory be construed as the same offense.

Offenses are not the same for purposes of the double jeopardy clause merely because they arise out of the same general course of criminal conduct; they are the "same" only when the evidence required to support a conviction upon one of the indictments would be sufficient to warrant a conviction upon the other. United States v. Kramer, 289 F.2d 909 (2d Cir. 1961).

The first count of the California indictment charged appellant, Lorraine, Randall, Roe and others with conspiring to possess and pass counterfeit currency; the alleged overt acts by appellant in furtherance of the conspiracy were various conversations with other conspirators on June 1 and July 2, 1965. Appellant was not named in the three substantive counts.

The present indictment charged, in the first count, that appellant and the other defendants had conspired to receive and transport counterfeit bonds in interstate commerce; the specified overt acts were that on May 15, 1965, Randall, Mahler, Desatnick and appellant each traveled from New York to Newark, New Jersey, in furtherance of the conspiracy. The four substantive counts charged all the defendants with offenses relating to the transportation of the bonds from Newark to New York and from New York to Paris on May 15.

Clearly, these two indictments do not charge the "same" offense, and the claim of double jeopardy was properly rejected by the trial court.

On this appeal, appellant no longer presses his claim of double jeopardy. Instead, he now argues that some of the factual issues in the present case were also involved in the California trial and that collateral estoppel bars the government from relitigating those issues which were determined in appellant's favor by his acquittal in the prior trial. Appellant did not raise this question in the court below. He made no objection on this basis to the introduction of any evidence; he never informed the trial judge as to any issues allegedly determined in the prior trial, nor did he ever request the court to read the record of the California trial. Appellant contends...