United States v. Rappaport

• Decision Date: 22 January 1963
• Docket Number: Docket 27331.,No. 132,132
• Citation: 312 F.2d 502
• Parties: UNITED STATES of America, Appellee, v. Hyman RAPPAPORT, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

312 F.2d 502 (1963)

UNITED STATES of America, Appellee, v. Hyman RAPPAPORT, Appellant.

No. 132, Docket 27331.

United States Court of Appeals Second Circuit.

Argued November 26, 1962.

Decided January 22, 1963.

Frances T. Wolff, New York City, for appellant.

Joseph P. Hoey, U. S. Atty. for the Eastern District of New York (Philip Silverman, Asst. U. S. Atty., of counsel), for appellee.

Before CLARK, MOORE and KAUFMAN, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

The defendant, Hyman Rappaport, appeals from a judgment (upon a jury verdict) adjudging him guilty of having in his possession certain stock certificates "which had been stolen from an American Airlines Aircraft" transporting the certificates as part of an interstate shipment, the defendant knowing them to have been stolen (Indictment, Count Two). A conspiracy count (Count One) against Rappaport, Danta, Weinberg and Newman was dismissed at the end of the case. At the opening of the trial the Government moved "to sever as against the defendant Samuel J. Danta, also known as Joseph Pagano." Thereupon, an attorney for Pagano said, "On behalf of Joseph Pagano, I have no objection to the motion." The motion was granted and the trial proceeded against Rappaport, Weinberg and Newman. At the end of the Government's case, the trial court dismissed the conspiracy count (One) against all three and the possession count (Two) as against Weinberg and Newman. The case went to the jury against Rappaport only. Because the case presents certain troublesome aspects, the facts must be set forth at some length as a background for our conclusions.

On July 24, 1959 a stock brokerage firm in Los Angeles, California, delivered a package containing eight stock certificates to the Railway Express Agency for shipment by air to its (the brokerage firm's) New York office. The package was placed on the counter (air shipment section) of the Express Company's office. The records of the brokerage firm's New York office contained no entry of its receipt. No proof of actual theft was offered. The trial court, in denying the motion to dismiss at the end of the Government's case upon the ground, amongst others, that "there is no proof that these securities were stolen," ruled that in his opinion the mysterious disappearance "was stealing under the Act."

One year later, on July 22, 1960, Rappaport and Newman appeared at the State Bank of Long Beach, Long Beach, New York, where they were known (Rappaport for some twelve years) and discussed a loan ($3,000) for Rappaport on collateral. The collateral consisted of stock certificates in the name of "Sam J. Danta." The Bank required a hypothecation form executed by Danta. Stating that Danta was out of town, Rappaport left the certificates with the Bank. Upon return of the ostensible owner, Danta, apparently the loan plan changed and the certificates were repossessed by Rappaport. He returned to the Bank on July 26th with a signed hypothecation, and with instructions that the owner now wanted to sell them. One certificate with the name, Sam J. Danta, indistinctly written thereon, was left with the Bank so that it could establish negotiability. Informed that the Bank's brokers would sell all the certificates, Rappaport delivered them to the Bank. On August 16, 1960, Rappaport was advised by the Bank that it had received the proceeds of the sale, $27,797.60. He appeared at the Bank on the same day with a person whom he introduced as Danta. Danta opened an account in his name (address, Concourse Plaza Hotel, Bronx, New York), and deposited the proceeds. Danta then drew a check for $10,000 which he cashed and also drew a check for $3,000 to Rappaport who deposited it in the Bank in his account.

Investigation proved that the certificates were identical with those delivered a year earlier in Los Angeles which had disappeared except that microfilms of the certificates taken before they were shipped on July 24, 1959 showed that the certificates were issued in the names of certain firms such as Bache & Co., Holt & Co., and Nay & Co. These names had been replaced by the name of Sam J. Danta.

A vice-president and the secretary of the Bank corroborated the facts regarding the bank transaction. As to ownership of the certificates, the vice-president testified that Rappaport on his first visit to the Bank said, "they weren't his" and that upon his reappearance on or about August 16th Rappaport introduced a man with him saying, "This is Mr. Danta." The secretary testified that on the August 16th appearance Rappaport said, "This is Mr. Danta, the gentleman who owned the stocks."

An F.B.I. agent testified as to a conversation with the defendant Newman who said he had accompanied Rappaport to the Bank on July 22, 1960 for the purpose of negotiating a loan, that a friend of Rappaport was willing to put up the securities as collateral and that he (Newman) did not know the certificates had been stolen. The court properly instructed the jury to "shut from your minds the evidence as against the defendant Rappaport because he is not concerned in this testimony." The testimony was taken over objection by Rappaport's counsel because as the court noted, "There is a conspiracy count here, Count 1." A conversation between the agent and Weinberg revealed that he had accompanied Rappaport to the Bank to sign some corporate papers in connection with a loan. Another F.B.I. agent told of a conversation with Rappaport who stated in greater detail the circumstances under which he had originally met Danta in Florida, his seeing him in New York and his belief that "Danta would be a person from whom he might obtain some money."...