Waterman, Moore and Kaufman, Circuit Judges.
Robert Edwards,*fn1 Max Jakob, John Lombardozzi and Milton Parness appeal from their convictions for violating the National Stolen Property Act, 18 U.S.C. § 2314, and conspiracy to violate 18 U.S.C. §§ 2314, 2315 (18 U.S.C. § 371). After a three and one-half week trial before Judge Wyatt and a jury, sentences were imposed ranging from imprisonment for one year and one day to four years.*fn2 For the reasons set forth below, we affirm.
The indictment, filed on July 1, 1964, was in four counts. Count one charged 16 defendants, including the 4 appellants,*fn3 and 6 co-conspirators not named as defendants*fn4 with participation in a conspiracy which encompassed the transportation in interstate and foreign commerce of approximately $1,000,000. in securities stolen from Bache & Co. (Bache), a New York brokerage concern. Count two charged appellants and several other co-defendants with the substantive violation, 18 U.S.C. § 2314, of transporting stolen securities from New York City to Newark, New Jersey. Counts three and four charged other substantive violations of 18 U.S.C. § 2314 involving transportation of stolen securities from New York City to Miami, Florida and from New York City to Denver, Colorado but, prior to and at trial, these counts were dismissed on the government's motion.*fn5
Much of the government's case rested on the testimony of defendants Dodge, Pomeranz, Sessler, Gladstone and Markowitz*fn6 who testified in its behalf. Viewing, as we must on appeal, all the evidence presented and the reasonable inferences flowing therefrom in the light most favorable to the government, United States v. Kahn, 366 F.2d 259 (2d Cir. 1966); United States v. Robbins, 340 F.2d 684 (2d Cir. 1965); 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), a mosaic of cunning and nefarious crime emerges. In order to avoid obfuscating the rather involved facts, it is useful before presenting a detailed review of the evidence, to summarize the government's case and to outline in skeleton form the manner in which the alleged conspiracy operated and the way in which each appellant was implicated in the substantive and conspiracy counts.
The first link in the alleged conspiracy chain was Gordon Tallman, an employee of Bache, who, over a period of time, stole approximately $1,000,000 of "bluechip" securities registered in the firm's name and turned them over to Robert Dodge for distribution and ultimate sale. Dodge passed these securities to Alan Pomeranz who, in turn, gave them to Robert Edwards. During June and July 1962, Edwards distributed various quantities of the stock to Milton Parness who brought Fred Sessler and Sheldon Lowe into the scheme hoping to utilize their brokerage connections. However, they thought it advisable to deal with Max Jakob, who also was familiar with the disposition of stock and who was in need of funds for his ailing enterprise. Jakob turned for aid to William Gladstone, his business associate and attorney, who obtained assistance from his law partner, Bert Markowitz.
Devising a plan which required a so-called "small man" and "big man" to dispose of the stock, Gladstone obtained approximately $60,000 of Bache purloined stock which had been passed down the line from Tallman to Jakob. Gladstone turned these securities over to Benjamin (Buddy) Clott, the "small man," who attempted to sell them, with the aid of Isidore Gorlitsky, through the brokerage facilities of Kesselman & Co. Gorlitsky was arrested, however, on July 2, 1962, after the certificates which he had presented were identified as missing from Bache.
Gladstone also utilized the services of John Lombardozzi, his "big man," to distribute the stock. Lombardozzi's attempt, with the aid of an unidentified and unapprehended co-defendant, "Robert Francine," to sell other purloined Bache securities through the brokerage houses of L. P. Denenberg & Co. and S. P. Levine & Co. failed on July 9 when it was discovered that Bache had impaired the negotiability of the stock through the use of stop orders.
Despite these events, however, arrangements were made to transact a sale of a large portion of the stolen stock on July 20 at the Robert Treat Hotel in Newark, New Jersey. The prospective purchaser was secured by Clott and identified as a buyer from the West Coast. Actually, he was an agent of the Federal Bureau of Investigation acting under cover. The attempted sale in the New Jersey hotel led to the apprehension of the participants in the scheme and its eventual termination.
Because appellants vigorously challenge the sufficiency of the evidence underlying their convictions, we proceed to expand and present in greater detail the involved and complex and sometimes confusing facts.
The seeds of the alleged conspiracy were sown in November 1961 when defendant Gordon Tallman met defendant Robert Dodge in the "Tap Room" of the Hotel Taft. In the course of their conversation, Tallman informed Dodge that he had access to the vault of his employer -- a Wall Street brokerage house*fn7 -- and could obtain for disposal undetected, virtually any amount of negotiable securities he desired.
But, this meeting did not bear fruit immediately. It was not until April 1962 when Dodge met Tallman and co-conspirator, Francine Pomeranz,*fn8 that Mrs. Pomeranz suggested that Tallman steal some stock which Dodge could hypothecate for their mutual profit. After waiting for Bache auditors to complete a periodic audit, Tallman, approximately ten days later, appropriated a certificate representing 100 shares of General Motors stock registered in the name of one "Smythe" and turned it over to Dodge. But, this prologue to the alleged conspiracy ended in failure. Dodge was unable to negotiate the stock by using it as collateral for a loan because he did not have proper identification; ultimately, Dodge burned the certificate.
Undeterred by this initial lack of success, Francine suggested that her husband, defendant Alan Pomeranz, was able to distribute stolen stock. It was agreed that Dodge would act as a "middle-man" so that Tallman and Pomeranz could avoid dealing directly with one another.
In the latter part of May 1962, Pomeranz encountered appellant Robert Edwards outside the Stage Delicatessen, a restaurant in Manhattan, and asked Edwards if he would be interested in participating in the disposal of some stolen securities. After learning that as much as $200,000 to $500,000 worth of certificates might be involved, Edwards counseled that it was imprudent to continue the conversation on a public street and suggested that Pomeranz contact him in a few days.
Accordingly, in late May or early June, Pomeranz called Edwards and was invited to the latter's Central Park West apartment. Edwards told Pomeranz he was interested in the proposed transaction and they proceeded to discuss its additional aspects. Indeed, Edwards stated that he had already contacted someone in connection with the deal. Edwards went on to suggest that certificates registered in a street name be obtained, and Pomeranz observed that since the stock was to be acquired from a New York brokerage house, it would be advisable to dispose of the stock away from New York. Edwards and Pomeranz also agreed to "make it a one-shot deal and take as much as [they] could get." Estimating that they could realize 15%-20% of face value, they decided to obtain $1,000,000 worth of "blue-chip" securities; to make detection of their plan difficult, they agreed not to disclose their respective contacts to one another.
Meanwhile and during this same period, appellant Milton Parness met defendant Fred Sessler at the Debonair Restaurant in Manhattan and discussed the possibility of employing Sessler's brokerage firm, Fred F. Sessler & Co., to dispose of the stolen securities. After speaking to his partner, defendant Sheldon Lowe, however, Sessler advised Parness that his firm was inadequate for the task and suggested that arrangements with appellant Max Jakob could be made. Sessler also noted that stolen securities registered in a "street name" as distinguished from an individual's name would be readily negotiable.*fn9
The day following his meeting with Edwards, Pomeranz phoned Tallman and described the "one-shot" nature of the proposed transaction. Tallman indicated that he would have no difficulty appropriating $1,000,000 of stock registered in a street name and was willing to accept 5% of the face value of the securities as his fee. When Tallman inquired as to whether "front money" -- a deposit -- would be forthcoming, Pomeranz noted that he assumed so but that the matter had not yet been determined.
At a subsequent meeting in Edwards' apartment, Edwards told Pomeranz that he had to be sure the stock was not counterfeit and, therefore, he and his contacts wanted to examine a sample. Accordingly, Pomeranz spoke to his wife, directed her to tell Dodge to obtain a sample and added that, when Dodge was ready, he would meet him at the Mermaid Room of the Park Sheraton Hotel. Mrs. Pomeranz stated that Dodge would be wearing one of Pomeranz' suits to facilitate identification since Dodge and Pomeranz did not know one another.
The following day, June 5, Tallman met Dodge at the Coachman Bar on William Street in Manhattan and gave him an envelope containing a single certificate representing 100 shares of General Motors stock registered in the street name of Bache & Co. According to plan, Dodge proceeded to the Mermaid Room of the Park Sheraton Hotel and met with Pomeranz who was seated at the bar. After a few minutes, Pomeranz walked to the men's room and Dodge followed shortly. There, Dodge handed Pomeranz the envelope containing the certificate of 100 shares of General Motors stock which Tallman had earlier appropriated and given him. When Dodge inquired about front money, Pomeranz responded that he did not know if any would be forthcoming. Dodge and Pomeranz also agreed that since they were now known to each other they would deal directly thereafter, and that Mrs. Pomeranz would no longer serve as their intermediary; accordingly, Dodge gave Pomeranz the phone number of Kennedy's Bar in the Bronx where he could be reached.
Pomeranz delivered the sample to Edwards at his apartment; Edwards stated that it would be shown to his contact the following day. Edwards also reported that no understanding had yet been reached on his and Pomeranz' share of the proceeds but he still believed they would receive between 15%-20%
The sample was quickly passed down the line from one to another; at a meeting in Parness' car between Parness and Sessler, Parness took the 100 share certificate from the trunk of his car and showed it to Sessler. Parness explained that this was a sample and that the other securities available were similar in form. Sessler indicated his willingness, with Lowe, to participate in the distribution of the stock. Edwards later reported to Pomeranz that the sample had been shown to his contacts and that, in a few days, he would let Pomeranz know when he required delivery of the bulk of the stock. Soon thereafter, Pomeranz told Dodge his "man thought it was great and that he would need at least a million dollars worth."
Dodge relayed this information to Tallman and on June 8, at 9:00 A.M., Tallman phoned Dodge, declared that he was "all ready" and asked Dodge if he could "get it from him that day." At first, Dodge suggested that they meet again at the Coachman Bar; however, a different bar on William Street was finally agreed upon as the meeting place. At about noon, Tallman and Dodge entered the men's room of the bar where Tallman removed from the inside of his shirt a manila envelope which he handed to Dodge, who, in turn, tucked it into his trousers. Tallman suggesed that Dodge compile a list of the certificate numbers "because they are our only protection."
After leaving, Dodge immediately proceeded to his "hangout" at Kennedy's Bar in the Bronx. In the men's room there, he opened the manila envelope and counted approximately seventy 100 share certificates of such "blue-chip" securities as A.T. & T.,I.B.M.,G.M., DuPont and Standard Oil of New Jersey, all in the name of Bache. As instructed, he compiled a list of the certificate numbers and then placed the securities in a cigar box which he secreted in the trunk of Mrs. Kennedy's automobile.
Meanwhile, Sessler was making arrangements for the disposition of the stock. Having determined that his organization, an over-the-counter firm, could not undertake to sell securities listed on the New York Stock Exchange, Sessler, at Lowe's suggestion, contacted appellant Max Jakob with whom Sessler had previous business dealings. Jakob and defendant William Gladstone were partners in Wilco Commercial Corp. (Wilco), a business engaged in interim financing and the sale and trading of put and call options. Jakob visited Sessler's office where Sessler explained that there was a large quantity of securities available which were going to be taken by a partner at Bache who needed the money to pay off his gambling losses. Sessler also noted that, because of the partner's position, the loss would not be discovered for some time. While Jakob expressed interest, he noted that until he had reviewed the proposal with his partner, Gladstone, he could not commit himself.
Jakob did not delay in discussing the proposed transaction with Gladstone.*fn10 He noted that the securities could be utilized to rescue Wilco from financial straits caused by the general decline of the stock market in the Spring of 1962.*fn11 Gladstone, who was deeply in debt to Jakob, pointed out that they ran the risk of criminal sanctions if their participation was discovered; however, when Jakob stressed Wilco's need for funds and indicated his intention to become involved, Gladstone decided to go along.
Jakob, Gladstone and Sessler thereafter met several times to discuss what each would realize from the transaction. Jakob and Gladstone indicated that they would distribute and sell the securities for 50% of face value. Sessler protested, however, stating that this would be an impossible arrangement since he was paying 55% to obtain the stock. After further negotiation, it was finally agreed that Sessler would receive 5% while Jakob and Gladstone would obtain the remaining 40%. Jakob told Sessler that since they were dealing with large amounts, percentages were not all that important and besides, "* * * I have good connections in Europe and elsewhere, and don't be so selfish, and we can make some money not only today, but in the future."
Between June 8 and June 16, Pomeranz and Edwards were in communication with each other concerning the delivery of the stock, and, on Saturday, June 16, Edwards told Pomeranz that he was ready. Pomeranz relayed this information to Dodge who borrowed Mrs. Kennedy's car and met Pomeranz at 89th Street and Columbus Avenue in Manhattan. Pomeranz explained that although the front money matter had not been settled, his contacts were ready "to start doing business." The two drove to Edwards' apartment where Dodge waited in the car while Pomeranz went inside. He returned shortly, however, noting that negotiations concerning front money were still in progress and that they should wait for a while before delivering the stock. Accordingly, Pomeranz and Dodge went to a drugstore and after several phone calls to Edwards, Pomeranz told Dodge that no front money was available but that if they turned over the stock, they would receive $5,000 every 4 business days until their share of the proceeds had been paid. Dodge reluctantly agreed, removed the cigar box containing the stock from the trunk of Mrs. Kennedy's car and gave it to Pomeranz who wrapped it in a newspaper. Pomeranz brought this crudely concealed package to Edwards' apartment where it was opened revealing $1,005,000 worth of securities registered in the name of Bache. Because front money had not been furnished, Edwards and Pomeranz decided that only $100,000 should be turned over to Edwards' contact. Dodge phoned Tallman to report what had transpired.
Several days later, Parness gave Sessler three 100 share certificates of I.B.M., DuPont and A.T. & T. stock registered in the name of Bache. Sessler showed them to Jakob who remarked that "they look like diamonds"; ultimately, Sessler turned this stock over to Jakob.*fn12 At a meeting in Jakob's apartment, Gladstone outlined to Jakob and Sessler his proposal to distribute the stock through two channels: the plan called for a "small man," living in New Jersey, to deal with brokers and banks and a "big man" to efficaciously dispose of large amounts. Gladstone's "small man" was co-conspirator Benjamin Clott and his "big man" was appellant John Lombardozzi. The plan was accepted and shortly thereafter Gladstone and Markowitz discussed the proposal with Clott who was anxious to participate. Toward the end of June Jakob gave Gladstone the three certificates he had received from Sessler, and Gladstone surreptitiously delivered them by ostensibly abandoning the securities -- hidden in a newspaper -- in a phone booth to be retrieved by Clott who was close by.
Lombardozzi was brought into the scheme by Markowitz who had been his lawyer at one time. Lombardozzi was informed by Gladstone at a meeting at the law offices of Gladstone and Markowitz of the availability to "blue-chip" stock registered in Bache name. Thereafter, he witnessed Gladstone give Sessler $10,000 cash, in an automobile in which Gladstone, Lombardozzi and Sessler were present, for the purpose of acquiring $100,000 worth of stock. For some undisclosed reason, Sessler was unable to obtain the stock from Parness and thus returned the $10,000 to Gladstone who, in turn, gave it to Lombardozzi. A day or two later, however, a parcel of the appropriated stock was acquired in the following manner: Sessler, Gladstone and Lombardozzi drove to Lexington Avenue and 57th Street where Sessler met Parness and defendant Martin Carbone in the Mayflower Restaurant. Parness told Sessler the stock would be arriving shortly. After a brief discussion, Sessler, Parness and Carbone went outside; Carbone crossed the street and talked briefly with defendant George Martinelli who handed him a newspaper. Simultaneously, Sessler gave Parness the $10,000, which had previously been given to him by Gladstone, and then crossed the street to meet Carbone in a drugstore. Carbone turned the newspaper over to Sessler; secreted in its folds were securities registered in the name of Bache & Co. Sessler then proceeded to the automobile in which Gladstone and Lombardozzi were waiting and gave the newspaper containing the stock to Gladstone who passed it to Lombardozzi.
The $10,000 received by Parness was not distributed in one installment. After Pomeranz had spoken to Edwards several times concerning payment, Edwards reported that he had received $2,000 to show "good faith." Pomeranz, who had expected to receive $5,000 to give to Dodge and Tallman, expressed disappointment but nevertheless took the $2,000. After explaining to Dodge that he was without funds and was for that reason keeping $100 ...