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United States v. Whiting

September 20, 1962

UNITED STATES OF AMERICA, APPELLEE,
v.
DINTY WARMINGTON WHITING, JAMES R. CROWE AND WALTER J. SARNITZ, DEFENDANTS-APPELLANTS.



Author: Marshall

Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is an appeal by three defendants, Dinty Warmington Whiting, James R. Crowe, and Walter J. Sarnitz, from judgments of conviction entered in the United States District Court for the Southern District of New York, Metzner, J., on March 30, 1961, after a trial by jury. The three defendants were each convicted on three substantive counts (Counts I, II, and III) charging separate violations of 18 U.S.C.A. § 1343 by the sending of cables between New York and Rio de Janeiro in furtherance of a scheme to defraud. They were also convicted on a fourth count (Count IV) of conspiring to send these fraudulent cables in violation of 18 U.S.C.A. § 371, the federal conspiracy statute. The defendant Whiting was sentenced to serve four years and seven months in prison on each count, the defendant Crowe to serve four years and ten months in prison on each count, and the defendant Sarnitz to serve four years and five months in prison on each count, with the sentences of each defendant to run concurrently.

Two additional defendants, Lawrence J. Kunz and Victor J. Mari, pleaded guilty to Count IV and were each sentenced to serve one year in prison. Indictments against them as to Counts I, II, and III were dismissed. At trial both men testified as Government witnesses.

Although the appellants make certain claims of erroneous and prejudicial rulings by the trial court, which will be considered presently, their appeal is based primarily upon the contention that the evidence presented by the Government did not fairly establish beyond a reasonable doubt their guilt of the crimes charged. We have carefully considered the record and find the evidence ample to support the judgment of the District Court. Because we find no merit to any of the other claims made by the defendants, the judgments of conviction must be affirmed.

On the basis of the evidence introduced by the Government, the jury could have found the following facts:

In August 1960 Sarnitz approached Mari and Kunz, both employees of the Bank of America-International in New York, with an offer of $125,000 for Mari and $250,000 for Kunz if they would send a cable from the Bank of America-International to the Banco do Brasil in Rio de Janeiro, using a confidential international banking cable code known only to a few employees of each bank, including Kunz. Both men accepted the offer. Meetings were held by Mari, Kunz, Sarnitz, and Crowe; Sarnitz made at least three telephone calls to Whiting in Rio de Janeiro. A cable - which originally named Whiting as beneficiary but later was changed to name Crowe - was drafted. Finally, on August 16, 1960, after Crowe had flown to Rio de Janeiro, Kunz transmitted over the Bank of America's wire to the Banco do Brasil the cable that forms the basis of Count I:

"WE HAVE RECEIVED PAYMENT ORDER VALUED AT US DOLLARS THREE MILLION FROM BANCO DI NAPOLI NEW YORK STOP UNDER INSTRUCTIONS OF JAMES RILEY CROWE AS BENEFICIARY THEREOF WE HEREBY TRANSFER AND CREDIT THIS PAYMENT ORDER TO YOUR ACCOUNT OR YOUR ASSIGNEE."

The message was repeated five times bearing the amount of $3,000,000. On a sixth message, the amount was changed to $5,000,000, making a total of $20,000,000.

When the Banco do Brasil received this cable, it sent a return cable to the Bank of America requesting confirmation. Later that same day Whiting went to the office of All America Cables and Radio in Rio de Janeiro and sent to the Bank of America in New York the cable which forms the basis of Count II:

"DISREGARD AND CANCEL CABLE TODAY SATELGERAL RIO."

The term "SATELGERAL" is the cable code name for Banco do Brasil-General Management. On the line of the form requesting the name of the sender, Whiting wrote, "J. Feirrara & Cia, Av. Rio Branca 164." Both cables - the request for confirmation sent by Banco do Brasil and the "disregard and cancel" cable sent by Whiting - were given to the appropriate official in the Bank of America, but no action was taken. Sarnitz also talked to Whiting by telephone during this period.

The following day, August 17, 1960, Sarnitz received from Kunz the confidential banking test code number for that day as well as several secret cable code words; he then went to the Western Union office in the Waldorf-Astoria Hotel in New York and sent to the Banco do Brasil the telegram which forms the basis of Count III:

"FIVETHREE SIX BSUUI WE CONFIRM PAYMENT ORDERS JAMES RILEY CROWE FROM AUGUST SIXTEENTH IN ALL PARTICULARS EXCEPT FINAL THREE WORDS IN ALL SIX MESSAGES QUOTE OR YOUR ...


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