United States v. Robbins

• Decision Date: 12 January 1965
• Docket Number: Docket 29183.,No. 258,258
• Citation: 340 F.2d 684
• Parties: UNITED STATES of America, Appellee, v. Harry ROBBINS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

340 F.2d 684 (1965)

UNITED STATES of America, Appellee, v. Harry ROBBINS, Appellant.

No. 258, Docket 29183.

United States Court of Appeals Second Circuit.

Argued December 10, 1964.

Decided January 12, 1965.

Pierre N. Leval, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Charles A. Stillman, Asst. U. S. Atty., on the brief), for appellee.

David E. Lubell, New York City, for appellant.

Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

After a jury trial, Acorn Industries, Inc., and Harry Robbins, its president, were convicted on four counts of an indictment charging violations of the criminal provisions of the Federal Bills of Lading Act, 49 U.S.C. § 121.¹ The first three counts alleged that the defendants, knowingly and with intent to defraud, aided in uttering three falsely-made and forged bills of lading purporting to represent goods received for shipment in interstate or foreign commerce; the fourth count charged a fraudulent transfer for value of a bill of lading known to contain a false statement. Robbins alone appeals, contending that the evidence was insufficient to sustain his conviction, that it was error to admit testimony about similar transactions not named in the indictment, and that the misconduct of the prosecutor warrants a new trial. We affirm his conviction.

The nine-day trial developed the following facts. Robbins was hired in January 1960 to remedy the desperate financial condition of Acorn, a manufacturer under license from MGM Studios of plastic toys, coloring books, paint sets and other promotional materials relating to the movie "Ben Hur." He became the company's president and set out to secure urgently needed funds. To accomplish this he signed a contract in behalf of Acorn with Harris Factors Corp. on July 7, 1960, calling for advances of up to 75% on the company's accounts receivable.

It appears that in compliance with the terms of the factoring agreement, Robbins would go to the Harris offices every Friday with a schedule of specific accounts receivable to which would be attached invoices and bills of lading purporting to evidence sales and deliveries already made to bona fide customers. Harris would then issue its check to Acorn for approximately 75% of the face value of the accounts shown on the schedule and, as is customary with factored accounts, Acorn's customers were notified to pay their invoices directly to Harris. The present prosecution resulted when false statements were discovered in the documents presented to Harris.

The first and fourth counts of the indictment were concerned with a bill of lading allegedly representing a shipment of 612 cartons of plastic toys and paint sets to the Watson Triangle Company of Miami, Florida. This particular document was specifically mentioned in a schedule of accounts receivable submitted by Robbins on July 29 and was relied upon by Harris in issuing a check to Acorn on that date. The Government's evidence established, however, that Watson Triangle had never ordered the goods, no shipment was made on July 29, and when shipment finally was made on August 3, more than 500 of the cartons were empty.

The second count involved a bill of lading, dated August 5, 1960, and presented to Harris for factoring, which purported to cover 700 paint sets shipped to International Games of Canada in New Toronto, Canada. Here it was charged that the customer had ordered the goods, but that the trucker's signature on the bill of lading was forged and that shipment was not made until August 12 when only 150 cartons were sent, with the balance not following until September and October. The bill of lading in the third count, also dated August 5, 1960, covered a shipment of 400 paint sets to Leonard Wasserman, Inc. in Philadelphia, Pennsylvania. In this instance, the Government alleged that no shipment was ever made and that once again the truckman's signature was forged.

In addition, the Government, under the "similar act" doctrine, introduced evidence with respect to four transactions not charged in the indictment. Three of these were intrastate orders included in the schedules presented to Harris during the period covered in the indictment. This evidence, as we shall indicate, was admitted for the limited purpose of establishing that the acts charged in the indictment were committed knowingly and intentionally and were not the result of error or mistake. In these instances the Government established that the documents presented to Harris were fraudulent in one respect or another. Eventually, the irregularities complained of were discovered when one of the purported purchasers, notified of the assignment of accounts, advised Harris that no order had been placed and no monies were owing. When Robbins arrived on August 5 with the usual schedule of accounts receivable and accompanying documents required for factoring, Samuel Harris, the factor's president, reported this incident to him, refused to factor the accounts presented and proposed instead that he and Robbins call all accounts for verification. Harris then telephoned several accounts in Robbins' presence and learned from them that goods had not been ordered and would be refused. Robbins then admitted that "the receipts are fictitious" and promised, "I will definitely replace it during the week, and I want you to come down to my office daily until such times as I give you other invoices and bills of lading to cover the various schedules."

I.

At the trial the defense did not deny that the bills of lading were falsely made and forged. Rather, its strategy was to defend on the ground that (a) the inaccuracies were due to negligent methods of operation and inadvertence instead of actual fraud, and (b) even if there was fraud, Robbins had no knowledge of nor responsibility for it.

On this appeal, Robbins contends initially that his guilt was not established beyond a reasonable doubt. This we find to be wholly without merit. If the evidence was sufficient to warrant submission to the jury, it is not the role of appellate judges to weigh the evidence or judge credibility. And, once the jury has rendered its verdict against the defendant we must, in considering the evidence, view it in a light most favorable to the Government. United States v. Kahaner, 317 F.2d 459, 467 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959). With these considerations in mind, we believe that a reasonable juror could have been convinced of appellant's guilt beyond a reasonable doubt.

A brief review of the evidence which has led us to this holding is in order. Acorn's accountant, Milton Berliner, testified that in August 1960 he heard Robbins order an employee to ship empty cartons. Robbins then explained, according to Berliner, that "the reason why he is shipping these empty cartons is because he is desperate and needed the money to carry on his business." It is true that Berliner's testimony was called into question when two witnesses for the defense stated that he had not mentioned this incriminating incident before the trial. But as we have stated, we are appellate judges whose principal function is to determine if prejudicial errors occurred at the trial, and not to retry the facts or to re-adjudicate credibility. The jury must have believed Berliner and we would be improperly invading its sphere were we to resolve this question of credibility independently on the cold record before us. See United States v. Moret, 334 F.2d 887, 891 (2d Cir.1964) (concurring opinion).

Moreover, Berliner's testimony was hardly unsupported. Thus, Harris testified that appellant admitted the receipts were "fictitious" and that he knew "some of the merchandise was no good * * * because he had had no stock." Even if Robbins did not admit that he knew some of the bills of lading covered unordered merchandise, the jury would nevertheless be warranted in inferring that he knew some were inaccurate because empty cartons had been sent to customers.

Finally, there was strong circumstantial evidence from which the jury could have...