Friendly, Chief Judge, Timbers, Circuit Judge, and Jameson, District Judge.*fn*
Appellant, Stanley M. Fistel, was charged in a single-count indictment with unlawfully and knowingly possessing nine $100,000 United States Treasury Bills which had been unlawfully taken from Manufacturers Hanover Trust Company, in violation of 18 U.S.C. § 2113(c).*fn1 He was convicted, following jury trial, and sentenced to eight years imprisonment.
Appellant contends that (1) the indictment is void for failure to state an offense; (2) the evidence was insufficient on the elements of the stolen character of the bills and his scienter; (3) the eight year sentence is illegal and unjust; and (4) the court erred in denying his motion for a new trial.
Vincent Mathushek, a posting clerk for the Manufacturers Hanover Trust Company, testified that according to the bank records the nine bills found in appellant's possession were received at the bank on July 23 and 27, 1970, and there was no record that they had ever left the bank's custody lawfully. On July 28, 1970 it was discovered that 17 $100,000 bills, including the nine in appellant's possession, were missing.*fn2 Five employees searched the bank for two days but were unable to find the bills. A "lost securities" alert was then sent to other banks.
Willis E. Walton, an F.B.I. agent, testified that on November 10, 1970 he and Agent Witkowski, while working undercover, were introduced to Fistel in Schrafft's Restaurant in Manhattan. Fistel, who was using the alias "Nat Gold", offered to sell Walton $1,000,000 in treasury bills for 25 "points" or $250,000. Walton stated that he "couldn't pay 25 points," but "was willing to offer 20 points." Fistel replied that he didn't think "his people" would "buy that." Fistel left the room and upon his return stated that he had made a phone call to "his people", and that "20 per cent was acceptable."
Later an envelope containing treasury bills was delivered to Fistel at the restaurant.*fn3 Walton and Witkowski examined the envelope, and Witkowski then left. Walton found only nine bills and was informed by Fistel that the tenth bill had been sold.
Walton and Fistel then proceeded by taxi to Manufacturers Hanover Trust Company where Walton had his money. On the way Walton told Fistel he was "skeptical" about Fistel's statement regarding the tenth bill and was worried that the "stuff was counterfeit or there would be a switch along the way." Fistel told Walton not to worry, that the "stuff" was stolen and that "there was a large amount more available."
Prior to entering the bank Walton examined the bills more closely and found they were listed in a "stolen bank flier" in his possession.*fn4 He was assured again by Fistel that the bills "have been stolen; they are not counterfeit."
After entering the bank vault Fistel again stated that the bills had been stolen.*fn5 He also wrote the name "Nat Gold" and his address on the back of the bank flier, so that Walton "could reach him from overseas or through telephonic contact", in case Walton "had to make another offer or deal with him." Walton then showed Fistel some money he had in a safety deposit box, and shortly thereafter other F.B.I. agents entered the vault room and arrested Fistel.
F.B.I. Agent Harry Gossett testified that he was posing as a vault employee and was among the arresting agents. While listening at the door before entering the vault Gossett heard "Fistel saying something to the effect that Special Agent Walton needn't consult his list any further, that these items were listed there, and that he had six more which would also appear on that list."
Fistel, a lawyer, called two character witnesses and took the stand himself. He testified that on November 10, 1970 he was asked by Frank Goran, manager of Fistel's insurance brokerage corporation, located in the same suite as Fistel's law office, to represent Goran "in drawing up some legal papers for the return of certain securities which a client had received through a mistaken delivery and which was being returned for remuneration, 15 per cent of its face value." It seemed to Fistel "a perfectly legal transaction." Later the same day Goran told Fistel "an appointment had been made for Nat Gold to meet some people, and that he wanted me to go instead because I would be able to draw up the agreement." Goran asked Fistel to "renegotiate" in order to "get more money for the return of these securities, an extra five or ten per cent" and gave Fistel a copy of one of the bills.
Fistel testified that he went to Schraffts with a Jack Kramer, who introduced him to two men, one of whom was Agent Walton. He was under the impression that both men were representatives of a bank or insurance company. After some negotiation Walton "agreed to an extra five per cent." Fistel offered to take Walton to Fistel's office "so you can meet my client and conclude your business transaction with him." Walton "absolutely refused" and "insisted that the securities be brought to him so he can take them to the ...