United States v. Marcus

• Decision Date: 24 July 1970
• Docket Number: No. 18484.,18484.
• Citation: 429 F.2d 654
• Parties: UNITED STATES of America v. Lewis MARCUS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

429 F.2d 654 (1970)

UNITED STATES of America v. Lewis MARCUS, Appellant.

No. 18484.

United States Court of Appeals, Third Circuit.

Argued May 8, 1970.

Decided July 24, 1970.

Daniel E. Isles, Querques, Isles & Weissbard, Orange, N. J., for appellant.

George J. Koelzer, Asst. U. S. Atty., Newark, N. J. (Frederick B. Lacey, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before FREEDMAN, SEITZ and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal arises from a December 23, 1969, judgment of conviction against the defendant, who was charged with having wilfully and knowingly pledged as security for a loan two stolen United States Government Bonds while they were moving in interstate commerce from New York City, New York, to Newark, New Jersey, in violation of 18 U.S. C. § 2315.¹ Also the indictment charged that defendant knew that the bonds had been stolen.

At the trial an officer of the National Newark & Essex Bank of Newark, New Jersey, testified that on the afternoon of April 30, 1969, the defendant obtained a loan from his bank in the amount of $12,000 by pledging as collateral the two Treasury Bonds mentioned in the indictment. As to one of the two securities involved, a representative of a brokerage house in New York City testified that he had last seen the bond on February 15, 1969, when a coupon was clipped from it for redemption. It was discovered missing on May 14, 1969 during a general company inventory. While the witness had no actual knowledge of how the bond had been removed from the office, he did state that between the two dates no one had authority to take, sell, or pledge the bond from the brokerage house. From his knowledge of the operation of the company, he concluded that the bond could not have been negligently misplaced and must have been stolen. As to the other security, a representative of a second brokerage firm in New York City testified that his company last knew of the bond's whereabouts on March 11, 1969, when it was included with other securities scheduled to be shipped that day to Boston. It was discovered missing in April of 1969. This witness also testified that while he did not have actual knowledge of what had happened to the bond, he did know that no one had authority to remove it from the Boston shipment.

Initially, the defendant asserts that the Government failed to prove two essential elements of the charge in the indictment: that the bonds were in fact stolen and that they were moving in interstate commerce at the time that defendant pledged them with the Newark bank. The record requires the rejection of these contentions since the evidence required the submission of these issues to the jury.

Direct evidence of the theft of the bonds was not required.² The facts in this case are similar to those before the court in United States v. Rocco, 99 F.Supp. 746 (W.D.Pa.1951), affd. 193 F.2d 1008 (3rd Cir. 1952), where the defendant was charged with both transporting stolen goods in interstate commerce (18 U.S.C. § 2314) and with selling goods stolen from interstate commerce (18 U.S.C. § 2315). The Government introduced evidence which tended to show that four groups of securities had "mysteriously disappeared" from four separate banks out of the state of Pennsylvania and that the defendant sold all or parts of each of these groups through financial institutions in Pennsylvania. In dismissing the defendant's contention that the evidence was insufficient to establish a theft, the court said:

"The jury, if it believes the testimony of the witnesses for the prosecution, may draw whatever inferences the testimony of the witnesses reasonably tends to substantiate. The jury would have been naive indeed if it had found from the evidence that all four of these disappearances * * * were due to fortuitous circumstances instead of from theft, conversion, or fraud as charged." Id. at 748.

United States v. Rappaport, 312 F.2d 502 (2nd Cir. 1963), relied on by defendant, is inapplicable to the instant case. There the defendant was charged with the theft of goods moving in interstate commerce (18 U.S.C. § 659) and the evidence indicated that the theft had occurred at least a year before the transaction involving the defendant, who stood to gain little, if anything, from the pledging of the stolen securities there involved. Also, there was a serious question as to his possession of these securities. Such is not the case here, where Marcus clearly had possession of bonds recently removed from the premises of their rightful owners and where he benefited greatly from the transaction involved when he received the proceeds of the loan which the securities were used to secure. See Anderson v. United States, 406 F.2d 529, 533 (8th Cir. 1969).

At the trial, the Government called Philip Dinitz as a witness who described his occupation to be that of arranging financing for various persons. He testified that Marcus contacted him at his office in Brooklyn, New York, and arranged a meeting with him on the morning of April 30, 1969, in Jersey City, New Jersey, during which Marcus asked for his aid in securing a loan with collateral which Marcus was to supply. At this meeting, Marcus gave Dinitz a list of securities which he had available to pledge and which he said had been bought by his father. This list (G-5) contained the serial numbers of the two bonds noted in the indictment. Dinitz then arranged an appointment for Marcus on May 2, 1969, when he and Marcus went to a bank in Brooklyn, New York, and attempted to negotiate a secured loan. At that meeting Marcus presented several Government bonds but he did not have with him the two bonds involved here, having pledged them in Newark, New Jersey, on the afternoon of April 30. We are of the opinion, and we so hold, that this testimony, when coupled with the evidence which established the relatively recent removal of the bonds from the offices of their owners in a state other than the state where the defendant pledged them, was sufficient to establish the interstate nature of the...