Kaufman, Hays and Anderson, Circuit Judges.
The appellant Prezioso in 1961 and 1962 was a cash margin clerk in the stock brokerage firm of Sutro Brothers & Co. in New York City. It was his job to receive securities which were traded by Sutro Brothers in execution of orders placed with its branch offices in Washington, D.C., and Miami, Florida, and which were delivered to Sutro Brothers' New York Office for transfer against payment. It was Prezioso's duty to record their delivery and route them on to another department of Sutro Brothers. He met Zochowski in October, 1961 and they discussed a means of stealing securities which came into Prezioso's hands in the course of his work. In December, 1961, for a payment of $1200, Prezioso misappropriated a $5000 U.S. Treasury Bond, and delivered it to Zochowski, who took it to Hollywood, Florida, cashed it and deposited the proceeds in his own bank account.
In May, 1962, Prezioso took 550 shares of the common stock of American Natural Gas Co. which came to his desk in the course of being delivered to Sutro Brothers. Prezioso turned these shares over to Zochowski at a restaurant in New York and received from him, as part payment, $5000. Through an accomplice, and co-defendant, named Naidich, Zochowski sold and delivered the shares to another co-defendant, Tritt, of Toronto, Canada for $7000, transporting them to Montreal.
On June 29, 1962 the defendant Naidich had a discussion in New York with another defendant named Wuensche, whom he had met a month or two before when Wuensche had attempted to buy an Alabama bank. At that time each disclosed to the other that he was dealing in stolen securities, and in mid-June Naidich introduced Wuensche to Zochowski. When Naidich met Wuensche on June 29, 1962, he told Wuensche that some securities were available for $5000. Wuensche then turned over $5000 in cash to Naidich, who paid it over to Zochowski, who delivered it to Prezioso, who was unable at that time to deliver the securities.
Wuensche, as president of Holland Construction Co., in December of 1961 had entered into a contract to perform certain dredging work at Stone Harbor Manor, New Jersey, for the defendant Giuliano, whom Wuensche had known since 1958. In April, 1962, Giuliano was in serious financial difficulties and conferred with Wuensche about raising some capital. Through one DiFonzo, who dealt in stolen securities, but who was not a defendant or co-conspirator in this case, Wuensche procured some securities concerning which Wuensche told Giuliano that they "were being lifted from the locker, from the vault of the brokerage firm" and that they "were hot securities and that there was no way of replacing them" and that they were "all bluechip securities -- from Sutro Brothers here in New York City."
After the incomplete transaction of June 29, 1962 when Wuensche had paid $5000 which ultimately went into the hands of Prezioso and for which Prezioso had, at the time, no securities to deliver, arrangements were made for a meeting on July 2, 1962 at the Summit Hotel in New York to which Wuensche took Giuliano. At this time DiFonzo procured the delivery to Wuensche of eight $10,000 Treasury Bonds registered in the name of Greenberg. Wuensche passed the bonds over to Giuliano and Zochowski and asked Giuliano if Giuliano could "do anything with these, with the people in New Jersey" to which Giuliano replied, "he didn't know for sure. He'd have to check into it." Wuensche also complained to Zochowski because he had received nothing for the $5000 which he had paid over for securities which Prezioso had failed to deliver.
On July 6, 1962, Zochowski called Prezioso who said he had some stolen securities, available for delivery. That evening at the Summit Hotel in New York Prezioso delivered ten $1000 Food Fair Properties Bonds to Zochowski who handed them over to Wuensche. On the morning of July 7th Wuensche called Giuliano and told him that "he had gotten delivery on something." On July 8th Wuensche and Giuliano met at Giuliano's office at Stone Harbor Manor, New Jersey, and Wuensche displayed all of the ten Food Fair Properties Bonds and said that they were some of the bonds he had gotten from the people in New York City and added, "Look, they're hot, you got to handle them carefully. They're not on any hot sheet yet, to the best of my knowledge and as far as I am concerned, as long as you put them away with people that you know it will be okay." Although Giuliano wanted all ten bonds, Wuensche delivered only four of them to him. Later Giuliano sold the bonds through the Millville Trust Co., Millville, New Jersey, which was unaware that the bonds did not rightfully belong to Giuliano.
On January 7, 1963, an indictment, in four counts, was returned against Giuliano, Prezioso and Zochowski, as well as against several other defendants. The first count charged Prezioso and Zochowski with transporting and causing to be transported in December, 1961, a $5000 U.S. Treasury Bond from New York to Florida knowing it was stolen. The second count similarly charged Prezioso and Zochowski, with Naidich and Tritt, with transporting 550 shares of American Natural Gas Co. in May, 1962, from New York to Montreal, Canada. The third count charged Giuliano, Prezioso, Zochowski and Wuensche with the like offense for transporting ten $1000 Food Fair Properties Bonds from New York to New Jersey and Pennsylvania in July, 1962. The fourth count charged all of the defendants, named in the first three counts, with conspiracy to commit the substantive offenses described in those three counts.
Prezioso, Zochowski and Giuliano all pleaded "not guilty" and the case against those three was assigned for trial on May 6, 1964. At that time Prezioso and Zochowski, after an extensive voir dire by the court, changed their pleas to "guilty" and testified in Giuliano's case as Government witnesses. On May 13, 1964, the jury found Giuliano guilty on the third count and not guilty on the fourth. On June 12, 1964 Zochowski moved to withdraw his guilty plea on the ground that in participating in the thefts from Sutro Brothers, he was actually acting as an informant for the F.B.I. and, therefore, had no criminal intent. On June 19, 1964 Judge Palmieri sentenced Giuliano to imprisonment for two years. Prezioso on that day asked for an adjournment of the imposition of sentence in his case in order that he could attend to personal matters. Judge Palmieri adjourned the matter to July 7, 1964, and in so doing clearly implied that Prezioso would have to serve a sentence of imprisonment. On July 7th Prezioso orally moved for leave to withdraw his plea of guilty on the ground that his apparent criminal activity was forced upon him by duress and that the disclosure by Zochowski that he was an F.B.I. informant revealed for the first time that he, Prezioso, had been entrapped.
Judge Palmieri assigned the hearings on Zochowski's and Prezioso's motions for July 29, 1964 and they were heard on that day. The motions were denied and each defendant was sentenced. At this hearing evidence was heard concerning Zochowski's connection with the F.B.I., its relationship to this case, and prior knowledge by Prezioso of Zochowski's activity as an informant. Judge Palmieri found, on ample evidence, that despite Zochowski's work with the F.B.I., his activity in connection with the Sutro case was "an independent criminal enterprise having no relationship whatsoever with any branch of the government * * *."
Although Giuliano admits receiving the bonds, he claims that everything he did was consistent with the actions of a business man acting in good faith, that in fact he did not know that his handling of the bonds was a part of a criminal enterprise and that the government failed to prove beyond a reasonable doubt that he had such guilty knowledge. Wuensche's testimony, however, established that Giuliano knew that Wuensche was dealing in stolen securities and that the Food Fair Properties Bonds themselves were stolen. It was within the province of the jury to believe him or not. United States v. Robbins, 340 F.2d 684, 687 (2d Cir. 1965). We find that there was ample evidence to convince the jury beyond a reasonable doubt of appellant's guilty knowledge.
Giuliano contends that he was deprived of due process of law by the "inconsistent verdict" of the jury. Specifically, the claim is that an acquittal on the broad conspiracy count precluded conviction on a substantive count in the same proceeding because the Government relied on the same evidence to prove its case on both counts. The argument is devoid of merit for several reasons. First, no principles of res judicata are involved here. United States v. Dovico, 329 F.2d 52 (2d Cir. 1964); cf. Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1946). Second, the verdict was not necessarily inconsistent, for the elements of the two crimes charged in the separate counts are different. See United States v. Robinson, 320 F.2d 880, 881-882 (2d Cir. 1963). As Judge Palmieri pointed out in his instructions, knowledge of the interstate ...