United States v. Leitner

• Decision Date: 27 February 1962
• Citation: United States v. Leitner, 202 F.Supp. 688 (S.D. N.Y. 1962)
• Parties: UNITED STATES of America, v. Harold LEITNER, Defendant.
• Court: U.S. District Court — Southern District of New York

202 F. Supp. 688

UNITED STATES of America, v.Harold LEITNER, Defendant.

United States District Court S. D. New York.

February 27, 1962.

Morton S. Robson, U. S. Atty., for the United States.Daniel P. Hollman, Asst. U. S. Atty., New York City, of counsel.

Nicholas Atlas, New York City, for defendant.

FREDERICK van PELT BRYAN, District Judge.

Defendant Leitner was tried before a jury on an indictment charging, in four counts, passing and possession of two counterfeit $100 Federal Reserve notes in violation of 18 U.S.C. § 472.The first count charged that on or about May 20, 1960 Leitner wilfully and knowingly, and with intent to defraud, passed one such counterfeit note.The second count charged possession of that note with knowledge and intent to defraud.The third and fourth counts made similar charges concerning respectively the passing and possession of a second such note on or about May 24, 1960.

The jury returned a verdict of guilty on Counts 1 and 2 and acquitted defendant on Counts 3 and 4.

Defendant has moved, pursuant to Rule 29, F.R.Cr.P., 18 U.S.C., for judgment of acquittal on the two counts on which he was convicted, or in the alternative for a new trial under Rule 33.He moves upon three grounds:

(1) That there was insufficient evidence to support the conviction; (2) that it was prejudicial error to join Counts 3 and 4 with Counts 1 and 2, and for the court to deny a motion for a separate trial; and (3) that it was prejudicial error to admit testimony as to similar acts of the defendant in passing other counterfeit notes as bearing on the issue of defendant's intent.

The evidence as to the passing and possession of the counterfeit note alleged in Counts 1 and 2 is virtually undisputed except on the issue of defendant's knowledge and intent.

During the late spring and summer defendant Leitner worked as a singing waiter and entertainer in the New Roxy Hotel at Loch Sheldrake near Monticello in the Catskills.On Friday, May 20, 1960, he arrived at the hotel by bus from New York City.During the evening of that day John Talabisco, a student who was a part-time waiter, and who shared quarters with Leitner, asked him for repayment of a $10 loan.Leitner gave him a $100 bill and asked Talabisco to have it changed and give him back $90.

Shortly before midnight Talabisco went to Brown's Hotel, some four miles away, to see Stieglitz, one of its employees, to whom Talabisco owed $10.Stieglitz was unable to change the $100 bill and referred Talabisco to Brown, one of the proprietors of the hotel, who changed the $100 note for him.Talabisco then paid Stieglitz the $10 he owed him, returned to the New Roxy and went to bed.

About an hour later Leitner woke Talabisco and said that he had just discovered that the $100 note was counterfeit.He asked Talabisco where it had been changed.Talabisco told him.Leitner then asked Talabisco to hold on to the $90 which he still had and to try to get the bill back from Brown who had changed it.

The next morning Talabisco went to see Brown, told him that he had learned that the bill was no good and asked for it back.Brown told him that he no longer had it but had given it to one of his waiters who had left for Florida because of the illness of his mother.

Later that day Leitner also went to see Brown and repaid him the $100.Up to that time there had been no suggestion from anyone but Leitner that the bill given by him to Talabisco and by Talabisco to Brown was counterfeit.

During the course of the next week the counterfeit bill came into the hands of the Secret Service.On May 27, 1960 Agent Motto of the Secret Service arrived at Loch Sheldrake, made an investigation and took a statement from Leitner.About two weeks later Leitner was arrested in New York after investigation of an incident at the Roger Smith Hotel involving the passing of another $100 counterfeit bill which was the subject of the third and fourth counts in the indictment.

Leitner, who took the stand in his own defense, both in his statement to the Secret Service and in his testimony, admitted that he had passed the $100 to Talabisco, that it was counterfeit and that the events at Loch Sheldrake which had been testified to by the Government's witnesses took place.

However, Leitner strenuously denied that he knew the note was counterfeit when he passed it to Talabisco or that he had any intent to defraud anyone.He claimed that he had received the note the day he gave it to Talabisco on the bus en route from New York to Loch Sheldrake from a man who called himself "Jerry", whom he had never seen before.He said that "Jerry" had given him the note in payment of winnings in a gin rummy game on the bus and that "Jerry" had left the bus at a stop in the Catskills before it reached Loch Sheldrake.Leitner identified "Jerry" only as a musician with red hair, of average build.He said he knew nothing more about him.He claimed that he discovered the note was counterfeit only after he had given it to Talabisco when he received a telephone call from someone who said he was "Jerry", who laughed at him and who told him, "His money was no good".He said that as soon as he heard this he attempted to get the note back from Talabisco and the next day, before there was any complaint about the bill, had repaid the $100 to Brown.

There was testimony by Talabisco, supported by testimony of Brown, to the effect that Leitner had written down the serial numbers of the bill before he had given it to Talabisco.This Leitner denied.

Leitner also denied any connection with the incident at the Roger Smith Hotel on May 24, 1960 which was the subject of the third and fourth counts in the indictment, and an incident at the Hotel Greystone on February 5, 1960 involving the passing of a third counterfeit $100 bill.Both of these incidents were relied upon by the Government as evidence of similar acts bearing on the issue of criminal intent.

In support of Counts 3 and 4 of the indictment the Government introduced evidence to the effect that on May 24, 1960, four days after the Loch Sheldrake incident, another $100 counterfeit bill was passed to the cashier of the coffee shop of the Roger Smith Hotel at Lexington Avenue and 47th Street in New York City.Reyes, the cashier who received the counterfeit bill, testified that the man who gave him the bill said he used to work at the Kismet Restaurant, two doors east of the Roger Smith on 47th Street, where Leitner had formerly worked, and thought that Leitner was the man who had passed the bill.However, on cross-examination Reyes was "not quite sure that Leitner was the man" although he looked like him.Reyes had previously identified a photograph of Leitner as "looking like the guy".

The Government urged that from this evidence the jury should find Leitner guilty on Counts 3 and 4 and also that this was evidence of a similar act bearing on the question of intent under Counts 1 and 2.However, as I have mentioned, the jury acquitted Leitner on Counts 3 and 4.

Evidence was also introduced as to the passing of a third counterfeit note on February 5, 1960 at the Greystone Hotel on 91st Street and Broadway in New York City.The desk clerk at the hotel, Miss Thome, testified that, on the morning of that day, a man had registered as a guest for a week.He gave her a $100 bill in advance payment of the weekly charge of $58 and she gave him the change.Among the hotel's receipts for the day which were deposited were two $100 bills, one of which was counterfeit.According to Miss Thome, the man who had so registered returned to the desk during the course of the afternoon and said he was unable to stay for a week.She then refunded to him all of the $58 charged for the week, less $5.25 which was the charge for one day.

Miss Thome positively identified the man who had registered under these circumstances as Leitner.She first thought that he had registered under the name of Rosen, but later, when the registration card was produced, recollected that he had registered as Clinton H. Scott.

Leitner denied that he had ever registered at the Greystone Hotel or had ever been there.He produced a physician who testified that Leitner had been in his office at 79th Street and West End Avenue on that day for a 2:15 p.m. appointment and that he had undergone electro therapy for a back condition for an hour or more.In addition, an impartial handwriting expert from the New York City Police Department was called as a witness by the court with the consent of both the parties to examine the Greystone registration card signed Clinton H. Scott.After comparison of the signature with specimens of Leitner's handwriting, the expert was of the opinion that the signature had not been written by Leitner.

The evidence as to the identification and tracing of the counterfeit notes was undisputed.Defendant also introduced evidence as to his good reputation for truth and veracity.

I.

Before discussing the sufficiency of the evidence to support the jury verdict of guilty on Counts 1 and 2, I will first deal with the defendant's claims of specific error.

There is no merit to defendant's claim of improper joinder of Counts 1 and 2 with Counts 3 and 4.The offenses charged were "of the same or similar character" and were properly joined in the same indictment under Rule 8, F.R.Cr.P.The facts as to the charges were relatively simple and the two were easily distinguishable in the minds of the jury, as was demonstrated by their verdict.There was no prejudice to the defendant in trying the four counts together and no error in denying his motion for a separate trial on Counts 3 and 4.(Rule 14, F.R.Cr.P.)SeeSchaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921(1960).There is plainly nothing inconsistent about the verdict of guilty on Counts 1 and 2 and not guilty on Counts 3 and 4.But in any event, "consistency in the verdict is not necessary".Dunn v. United States, 284 U.S. 390, 52...