Friendly, Hays and Anderson, Circuit Judges. Anderson, Circuit Judge (concurring). Friendly, Circuit Judge (dissenting).
Sidney A. Littman appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York. Littman was convicted, along with five co-defendants, of nine counts including wire fraud, 18 U.S.C. § 1343 (1964), mail fraud, 18 U.S.C. § 1341 (1964), use of interstate facilities to promote an unlawful activity, 18 U.S.C. § 1952 (Supp. IV 1965-68), and conspiracy, 18 U.S.C. § 371 (1964).
Littman claims inter alia that the evidence introduced against him was insufficient to support his conviction; that the admission of certain testimony of a victim of the conspiracy requires this court to reverse under the rule announced in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); and that the admission of a tape recording made by one of the victims of a conversation he had with appellant, and the subsequent failure to play this tape to the jury, constitute reversible error.
We find no merit in these or appellant's additional claims of error and therefore affirm the judgment of conviction.
The trial testimony proved the existence of an astonishing scheme involving Littman, who was a lawyer, and six others which eventually defrauded two groups of businessmen out of approximately 1.3 million dollars.
The scheme began with the false claim that the conspirators could obtain Cadillac agencies for the victims. To this end they were persuaded to deposit large amounts of money in escrow with Littman. It was represented that this money was to be used to bribe officials in the Cadillac organization. Later the victims were encouraged to participate in a gambling game with an entirely fictitious "eccentric millionaire." Finally the victims were told that they had suffered huge gambling losses, and threatened with bodily injury unless they paid these debts. The first group of victims paid by signing releases, prepared by appellant for the funds he supposedly held in escrow.*fn1 The second group of victims was not so easily frightened and when pressed to pay, reported the swindle to the F.B.I.
Taking the evidence, as we must, in the light most favorable to the government, see e.g., United States v. Dardi, 330 F.2d 316, 325 (2d Cir.), cert. denied, 379 U.S. 845, 85 S. Ct. 50, 13 L. Ed. 2d 50 (1964), we find that the jury had sufficient grounds upon which to reach its conclusion as to appellant's guilt.
That evidence can properly be viewed as establishing that Littman was present at meetings of the conspirators at the home of one Salvatore Marino when details of the fraudulent scheme were being planned, that he disbursed the proceeds of the fraud to Marino and Marino's creditors, then he went with Marino to the race track where Marino bet what the jury could have concluded was a part of the funds supposedly held by Littman in escrow, that he prepared and accepted delivery of releases from two of the victims when it was fair to assume he knew that they were acting under threat of physical injury, and that he accepted further payments from some of the victims when it was fair to assume he knew of the threats to others.*fn2
At the trial, George Desser, one of the victims of the fraud, related the contents of a telephonic conversation between his wife and Salvatore Marino, one of the co-conspirators, which Desser overheard. The relevant portion of Desser's testimony is as follows:
Q. And on Saturday, May 25 about 9:30 in the evening, did there come a time when you received a call from Mr. Marino? A. Yes, I did and, as I say, I can't recall every one of these calls. I believe he said "You had some nerve talking that way. Blacky meant every word that he said that Saturday night and these union boys" -- excuse me, just a minute, I am trying to see if I can remember.
"He meant every word that he said that Saturday night and your husband is in terrible danger and in terrible trouble and ...