United States v. Teresa

• Decision Date: 12 December 1969
• Docket Number: No. 13641.,13641.
• Citation: 420 F.2d 13
• Parties: UNITED STATES of America, Appellee, v. Vincent Charles TERESA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

420 F.2d 13 (1969)

UNITED STATES of America, Appellee, v. Vincent Charles TERESA, Appellant.

No. 13641.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1969.

Decided December 12, 1969.

John J. Pichinson, Corpus Christi, Tex., for appellant.

Alan I. Baron, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.

Before BOREMAN, BRYAN and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Defendant and Daniel Frank Mondavano were jointly indicted in a four-count indictment. In the first count they were charged, as principals and aiders and abettors, with transporting ten coupon bonds from Boston to Baltimore on or about April 16, 1968, knowing the bonds to have been stolen. The bonds, having an aggregate face value of $50,000, were alleged to have been stolen from a New York bank. This count thus charged a violation of 18 U.S.C.A. § 2314.¹

The second, third and fourth counts charged like crimes. The second count alleged the transportation, on or about May 1, 1968, of Treasury bills, notes and bonds and a Federal Home Loan Bank bond having an aggregate face value of $253,000 from Boston to Baltimore, these securities having been stolen from a broker in New York City. In the fourth count, the transportation alleged was also from Boston to Baltimore, and it was said to have occurred on or about May 1, 1968. The securities alleged to have been transported were three United States Treasury bills having an aggregate face value of $300,000 which were alleged to have been stolen from a broker in New York City.

Two of the Treasury notes alleged to have been illegally transported in the second count of the indictment were also the subject of the third count of the indictment. The latter charged that, on or about May 15, 1968, there had been a further illegal transportation of these notes, in the aggregate face amount of $200,000, from Baltimore to Washington.

Prior to trial, a severance was granted as to Mondavano. Defendant was tried alone with a jury and he was convicted on all counts. Sentenced to concurrent sentences of ten years on counts one, three and four, and a consecutive sentence of ten years on count two, he appeals. We affirm as to counts one, two and four, and reverse as to count three.

I

Defendant's specific attack on his convictions under counts one, two and four is quite limited in scope. As to each, he asserts solely that the evidence was insufficient to provide a factual basis from which the jury could determine beyond a reasonable doubt that the securities stolen in New York City were transported, or caused to be transported, by him from Boston to Baltimore. Aside from the point of origin of the transportation, defendant does not dispute the sufficiency of the proof to convict him.² We reject defendant's contention.

There was no direct proof of the transportation of the securities, either as to where they were taken after being stolen in New York or from where they were brought immediately prior to their appearance in Maryland. It is well settled, however, that circumstantial evidence is enough if it satisfies the jury beyond a reasonable doubt that the interstate transportation, as alleged in the indictment, actually occurred. Bell v. United States, 185 F.2d 302, 310 (4 Cir. 1951).

We turn to the circumstantial proof which the government offered: Defendant and Mondavano were shown to be residents of Massachusetts and to be employees of the Esquire Sportmen's Club with offices in Boston. In January, 1968, they met a Baltimore real estate developer (Schwartz) and had conversations with him about developing a hotel and casino on the island of Haiti. Their conversations continued for a period of time. It was contemplated that the total development cost would be six to seven million dollars and defendant and Mondavano were to contribute approximately $1,000,000.

In April, the Baltimore developer indicated that defendant and Mondavano should begin contributing some money; and, on or about April 16, 1968, they brought the ten school bonds described in the first count of the indictment to an agent (Harrison) of the Baltimore developer. He was instructed to borrow $30,000, pledging them as security, and to retain $8,000 as an investment in the project and to give $22,000, the balance of the loan, to defendant and Mondavano. These bonds had been discovered as missing by the New York bank on February 13, 1968. There was proof of a constant flow of telephone calls from defendant's home and his office to Schwartz's home and his office and to Harrison's home and his office during the period January 31, 1968, to April 16, 1968. Specifically, on April 15, there were two calls from defendant's home and two calls from defendant's office to Harrison's office. On April 16, there were four calls from defendant's home and his Boston office to Harrison's office.

After the April 16 transaction the parties agreed that the site of the proposed hotel and casino should be on the island of Curacao because of unfavorable political conditions in Haiti.

On May 1, 1968, defendant and Mondavano brought the securities described in the second count of the indictment to Harrison in Baltimore. Harrison was instructed to borrow $70,000 on one of the $100,000 notes. Of the proceeds of the loan, $52,000 was given to defendant and $18,000 contributed to the venture. The other securities, in the aggregate face amount of $153,000, were left in Baltimore as part of the investment. All of these securities had been discovered stolen on May 7, 1968, by the New York broker whose last record of their presence on its premises was April 10, 1968.

Again telephone records for the period April 16 through May 1 reflected a constant flow of calls from defendant's home and office to Schwartz's office and Harrison's home and office. On the day the securities were delivered in Baltimore there were three calls from defendant's office in Boston to Harrison's office in Baltimore and two calls to defendant's office in Boston from the area of Friendship International Airport outside of Baltimore.

On May 17, 1968, Mondavano came to Harrison's office in Baltimore and delivered the securities described in the fourth count of the indictment. Harrison was not in at the time; so Mondavano gave them to Harrison's secretary with instructions to deliver them to Harrison and left, stating that he was going to New York. Shortly after Harrison arrived, defendant called to confirm that the securities had been delivered. The telephone records show a call from the defendant's home and a call from his office on that date. These securities had been discovered to have been stolen from a New York broker on April 30, 1968.

Defendant testified in his own behalf. He denied ownership, possession or knowledge of the securities in question except $200,000 of Treasury notes. These, he claimed, he heard about from Harrison, who said that "somebody" had given them to Schwartz to cash in but then it was discovered that they were stolen. Harrison, according to defendant, asked defendant to say that they were his. Defendant declined to make this statement although he made general offers to help and even offered to obtain a fictitious bill of sale to support title. In the course of his testimony, much of which was incredible, he admitted coming to Baltimore on the dates in question by air and staying only a few hours.

Without objection, the jury was instructed that possession in one state of property recently stolen in another state, if not satisfactorily explained, was a circumstance from which the jury might infer and find that the person in possession knew the property to be stolen and transported or caused it to be transported in interstate commerce. Correlatively, the jury was instructed as to the meaning of "recently stolen" and told that the longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.

The charge was a correct statement of the law. United States v. Luciano, 343 F.2d 172 (4 Cir. 1965); Maguire v. United States, 358 F.2d 442 (10 Cir. 1966); Brown v. United States, 380 F.2d 477 (10 Cir. 1967) (per curiam opinion); Grover v. United States, 183 F.2d 650 (9 Cir. 1950). Cf., Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946). Given its correctness, the question we must decide is whether, on the facts here, the inference may extend to the actual transportation, or the causing to be transported, from Boston to Baltimore. We think the inference may be given this geographical scope.

True, the proof is that the various securities were stolen in New York. Direct proof of their whereabouts was lacking until they appeared in Baltimore. However, defendant and Mondavano lived in Massachusetts and had their offices in Boston. A plain pattern of dealings between Boston and Baltimore over the entire period was shown. For the first two of the three deliveries in question, defendant and Mondavano came to Baltimore and made physical delivery of the securities in Baltimore. The inescapable inference from the telephone calls is that they came by air and remained in Baltimore only briefly, and defendant voluntarily confirmed these facts. For the third delivery only Mondavano came to Baltimore, but, again, from the telephone calls and the previous pattern of conduct, the jury could infer that Mondavano transported the bonds from Boston and that defendant caused the transportation to take place. Thus, there was sufficient evidence to find defendant guilty of transporting the securities as charged in counts one and two of the indictment, and causing Mondavano to transport them as charged in count four. Although defendant sought to explain possession of the securities by denying that he had any knowledge of them, the jury was not required to accept defendant's protestations of innocence,...