The opinion of the court was delivered by: TENNEY
Defendant Raymond William Green was charged in a five-count information as amended (having waived indictment) with causing the transportation in interstate commerce of "certain falsely made, forged, altered and counterfeited securities, to wit, checks drawn on The Chase Manhattan Bank, New York, N.Y., payable to cash * * * bearing the purported signature of Ray Williams as drawer, knowing the same to have been falsely made, forged, altered and counterfeited", in violation of Title 18, U.S.C. §§ 2314 and 2.
The five prosecution witnesses were: Howard Glassman and Max Gopman, a room clerk and operator, respectively, of the San Juan Hotel in Miami Beach, Florida; Mortimer Wiener, an officer of the Mercantile National Bank in Miami Beach, Florida; John McGowan of the Signature and Stop Payment Department of The Chase Manhattan Bank in New York, N.Y.; and Joel A. Sharp, a Special Agent of the Federal Bureau of Investigation.
At the close of the Government's case, I indicated to counsel that some question existed in my mind as to whether the evidence presented had made out the commission of a crime within the meaning of Sections 2314 and 2, or whether the defendant was, on the basis of the Government's proof, guilty only of obtaining money under false pretenses. Thereafter, defendant moved for a judgment of acquittal on the grounds that the Government's proof did not make out the commission of a crime under the statutes set forth in the information and above referred to, which motion was denied subject to renewal at the close of defendant's case. The defendant thereupon rested and renewed the motion on the ground originally stated and upon the further ground that the Government had failed to prove essential elements of its case beyond reasonable doubt. Decision was reserved on the renewed motion.
I find that the uncontroverted testimony of the witnesses for the Government established the following facts:
In July of 1962, defendant checked in at the San Juan Hotel in Miami Beach for approximately four weeks under the name of "Ray Williams." During this period he apparently cashed a check with the Hotel (whether drawn against a non-existent account or insufficient funds was not shown), but which he thereafter "made good" on. This incident is not the subject of the present charges.
Thereafter, on September 24, 1962, he again checked in at the Hotel for a period of between two and three weeks. During this period he cashed the five checks which are the subjects of the five counts herein. On September 28th, he requested Glassman, who also worked at the Hotel desk, to cash a check for him. Glassman had no "universal" blanks (blank checks with the name of the drawee bank omitted) so he furnished defendant with a personal check of the Hotel operator, Gopman. This was a check drawn on the Mercantile National Bank of Miami Beach, where Gopman also maintained the Hotel account. Defendant scratched out the words "Mercantile National Bank of Miami Beach, Miami Beach, Florida" and "Max Gopman" and wrote in the words "Chase Manhattan Bank, New York, New York", made out the check to "cash" in the sum of $50.00 and signed it with the name "Ray Williams". Glassman cashed the check, which was thereafter deposited in the Mercantile National Bank on October 1, 1962, for the account of "Brago Corporation, d/b/a San Juan Hotel." It was returned by the Chase Manhattan Bank on October 3, 1962, marked "No account at this location. Please advise." (Count 2.)
The same procedure was followed on September 30, 1962, although this check was for $10, and again, on October 1, this check being for $20, both being thereafter deposited in the Mercantile Bank on October 5, and returned similarly marked by the Chase Manhattan Bank on October 9 and October 8, respectively. With respect to the October 1 check, the Chase Manhattan Bank also asked for the name and branch. (Counts 3 and 4.)
The fourth check cashed with Glassman was similar to the prior three, except that it was dated October 6, was in the sum of $24, and was not deposited in the Mercantile Bank for collection until October 10, and returned by Chase Manhattan Bank on October 31, with the notation "No account." (Count 5.)
The final check cashed by defendant was cashed on October 8, 1962, this time by Gopman, and was for $50. This, however, was drawn on a "universal" form of blank check on which defendant wrote in the words "Chase Manhattan Bank, New York, New York." As in the case of the prior checks, it was made out to "cash" and signed "Ray Williams." It was deposited on October 10 and returned by the Chase Manhattan Bank on October 15, marked in the same manner as the check of September 28 (Count 1). At the time he cashed this check, defendant informed Gopman that his own checkbook had not arrived. Gopman mentioned the prior checks which defendant had cashed, whereupon defendant told him not to worry, that the checks were good. The first "universal" check filled out by defendant on this occasion was not signed just "Ray Williams" as were the prior ones, but with another name which Gopman could not now recall. When Gopman called this to the defendant's attention, the latter tore up the check and filled out another "universal" form which he signed "Ray Williams."
Gopman also testified that it was the regular practice of the Hotel only to make deposits twice a week, but there is no evidence that defendant was aware of this fact. Also, although evidence was introduced as to the dates when the checks were returned by The Chase Manhattan Bank, it is not clear when they were received back by Mercantile National Bank. The check of September 28, however, was stamped "Cancelled" on October 8, 1962; the September 30 and October 1 checks on October 10, 1962; the October 6 check bears an illegible cancellation date, and the October 8 check was cancelled on October 19. Accordingly, it seems clear that the Hotel could not have been aware of the character of the checks before October 8, the earliest cancellation date, nor is there any evidence that these were cashed with the expectation that they would be made good by defendant at some later date. Nor is there any evidence that defendant was known to Glassman and Gopman by any other name than "Ray Williams". After defendant checked out of the Hotel, presumably not long after October 8, Gopman attempted to communicate with him to advise him about the return of the checks. However, the letter was returned marked "undelivered".
Thereafter, defendant was located at Wilshire Records in New York City and, having been advised as to his rights, was questioned at the office of Wilshire Records on April 17, 1963 by Special Agent Sharp about the checks passed under the name of "Ray Williams" at the San Juan Hotel heretofore referred to. He at first denied knowing anything about these checks, but when advised that his photograph had been identified by personnel at the Hotel, admitted negotiating the checks in that name, that he had been without funds and destitute, trying to get on his feet financially at Wilshire Records so that he could make restitution on the checks. He was also questioned concerning his use of the names "Bill Bruce" and "Russ Lynch", which he stated was for "obvious reasons". No other evidence was introduced by the Government with respect to the use of these names or the purpose therefor.
Defendant declined to accompany Sharp to the New York office of the Bureau, stating he had an important recording session that evening at Wilshire Records, but that he would appear at that office the following morning. He failed to appear. On May 8, 1963, however, he wrote the Manager of the San Juan Hotel, enclosing a personal money order in the sum of $120 "To Replace Checks Now Held" and asking the Manager to "Please Cancel Warrant."
It seems clear from the evidence hereinbefore referred to and the testimony of personnel of the Mercantile National Bank in Miami Beach, Florida, and the Chase Manhattan Bank in New York City, that defendant caused the checks hereinbefore mentioned to be transported in interstate commerce from Miami Beach, Florida, ...