United States v. McCurry, 12133.

• Decision Date: 05 September 1957
• Docket Number: No. 12133.,12133.
• Citation: 248 F.2d 116
• Parties: UNITED STATES of America v. Fred McCURRY.
• Court: U.S. Court of Appeals — Third Circuit

248 F.2d 116 (1957)

UNITED STATES of America v. Fred McCURRY.

No. 12133.

United States Court of Appeals Third Circuit.

Argued June 7, 1957.

Decided September 5, 1957.

Rehearing Denied October 18, 1957.

Mark Charleston, Philadelphia, Pa., for appellant.

Warren D. Mulloy, Asst. U. S. Atty., Philadelphia, Pa. (G. Clinton Fogwell, Jr., U. S. Atty., West Chester, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Following a jury trial defendant was found guilty and sentenced for violation of 18 U.S.C. § 2313¹ upon an indictment which charged him with receiving and selling stolen motor vehicles, moving in interstate commerce, knowing them to have been stolen. He prosecutes this appeal from the Order of the District Court denying his motion for judgment of acquittal or for a new trial² on the ground that there was insufficient evidence from which the jury could infer that he knew at the time he purchased or sold the vehicles that they were in fact stolen.

An essential element of proof of a violation of 18 U.S.C. § 2313 is that the defendant knew that the vehicles he dealt with were stolen, but it is clear that such knowledge may be proved by circumstantial evidence. Schwachter v. United States, 6 Cir., 1956, 237 F.2d 640; United States v. Angel, 7 Cir., 1953, 201 F.2d 531; United States v. Bucur, 7 Cir., 1952, 194 F.2d 297. Such circumstantial evidence must be considered in a light most favorable to the Government in view of the jury's verdict. United States v. Yager, 7 Cir., 220 F.2d 795, certiorari denied, 1955, 349 U.S. 963, 75 S. Ct. 895, 99 L.Ed. 1285; United States v. Kemble, 3 Cir., 1952, 197 F.2d 316.

The evidence with respect to defendant's knowledge may be summarized as follows:

Four 1952 Cadillac automobiles were stolen in New York during August and September of 1953. In accordance with the laws of the State of New York each of the automobiles was registered by presenting to the Motor Vehicle Bureau registration renewal stubs bearing validating stamps. Registration certificates were issued in the name of Samuel Reiner, Louis Horwood, Max Feinberg, and Murray Mayer. It was later determined that the four names submitted on the registration renewal stubs were fictitious and that the validating stamps were forged.

Defendant was a Studebaker dealer in Philadelphia and prior to the transactions here involved never had purchased a Cadillac from an out-of-town owner. However, within a period of about five weeks he purchased the four stolen Cadillacs from admitted strangers, in each case within several days after the theft had taken place. He made each of the purchases without attempting to verify the identity of the seller against the registration certificates, nor did he seek an explanation from the seller as to why he was selling his car only a few days after acquiring it — a fact which was indicated on the registration certificate.

There was ample evidence from which the jury could have found that defendant actually paid a much lower price for the Cadillacs than the "fair and reasonable market price" he contended he paid. With respect to the Reiner Cadillac two checks were drawn to the order of Samuel Reiner. The first check in the amount of $800.00 was endorsed by Samuel Reiner and by McCurry Motors, Inc. The second check was in the amount of $2,500 and was endorsed by Reiner and by defendant's bookkeeper, Elizabeth McElwee. The perforation on the checks indicated that they were both cleared through the Second National Bank on August 13, 1953, and from the fact that her signature appeared on the back of the $2,500 check, Mrs. McElwee was able to determine that she had personally cashed the check at the bank.

Defendant testified that the seller wanted cash and that he drew two checks rather than one in order to use $800 cash he had on hand as part of the payment. The $2,500 check was drawn to pay Reiner in full, this amount being drawn from the bank by Mrs. McElwee. However, defendant did not verify Reiner's endorsement against any identification even though the Reiner endorsements appeared to vary on the two checks.

With respect to the Horwood Cadillac, two checks both payable to Louis Horwood, were issued by defendant. One in the amount of $1,800 was dated August 27, 1953, and the other in the amount of $1,550, August 28, 1953. They were negotiated on August 27, 1953 and August 31, 1953, respectively. Defendant testified that he drew two checks because Horwood wanted cash; he said he only had $1,800 in cash available at the time and the...