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United States v. Brawer

decided: June 22, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
ALFRED BRAWER ET AL., DEFENDANTS-APPELLANTS



Moore, Hays and Feinberg, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

Appellants Alfred Brawer, Ralph Ignomirello, and Wassil Kreshik appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a seven-day trial by jury before Judge Milton Pollack. The three-count indictment charged each appellant and one Salvatore L. Mauceli, a/k/a Steve Marsh (named only as a co-conspirator), with: (1) conspiracy to violate 18 U.S.C. §§ 2, 371, and 2314, by unlawfully, wilfully, and knowingly transporting stolen United States Treasury Bills in interstate and foreign commerce; (2) transportation of $262,000 of stolen Treasury Bills in foreign commerce between New York City and Zurich, Switzerland; and (3) transportation of said bills between New York City and Montreal, Canada. Appellants were found guilty as charged on all three counts.

At the close of the government's evidence, and again at the close of their respective cases, each appellant moved for a judgment of acquittal on all counts; the motions were denied. After the jury rendered its verdict each appellant moved for a new trial on the ground that the verdict was against the weight of the evidence; these motions were also denied.

Brawer was sentenced to a five-year term of imprisonment on Count 1 and to seven-year terms of imprisonment on Counts 2 and 3, the sentences to run concurrently. Ignomirello was sentenced to a term of imprisonment of one year and a day on each count, the terms to run concurrently, with parole available after service of a term of two months, pursuant to 18 U.S.C. § 4208(a)(1). Kreshik was sentenced on Count 1 to a term of imprisonment of one year and a day, with parole available after service of a term of two months; as to Counts 2 and 3, imposition of sentence was suspended and he was placed on probation for a period of five years, to commence upon expiration of the term of imprisonment on Count 1.

I. THE EVIDENCE

Since all three appellants question the sufficiency of the evidence upon which they were convicted, it is necessary to state the facts adduced at trial in some detail.

The narrative begins on March 6, 1969, the date on which the brokerage house of Francis I. duPont & Co. (duPont) received at its offices in New York City $342,000 in six-month United States Treasury Bills which had been issued that same day. The serial numbers of the Treasury Bills were entered on duPont's records and the securities were deposited in one of duPont's vaults. DuPont paid $331,035.48 for the Bills, an amount reflecting a three percent discount from face value. One month later, after a physical search of duPont's offices on April 7 or 8, 1969, the Bills were found to be missing.

At about the time duPont received the Bills, that is, during the first week of March, 1969, appellant Kreshik, an Orthodox Catholic priest with a parish in Bayonne, New Jersey, approached a long-time friend, banker, and lawyer named Edward Dembe, to ask his assistance in negotiating the sale of some securities. Kreshik told Dembe that an ailing parishioner wished to dispose of some government "bonds" and that for personal reasons the parishioner wished to sell without his partners knowing about it. The parishioner wanted to sell them abroad. At trial Dembe, a government witness, testified that on that occasion Kreshik "told me that he had a parishioner whom he was trying to help, and this parishioner wanted to sell or dispose of some government bonds but he wanted to dispose of them outside of the country, and he wanted to know if I could direct him or help him introduce to someone [ sic ] or in some way help with this disposition of these bonds." (Trial Transcript, hereinafter "Tr.", at 65). Dembe warned Kreshik to be careful that the securities were not stolen; Kreshik assured Dembe that he was merely trying to help an ailing parishioner, that he knew the parishioner well, that the parishioner was trustworthy, and that the transaction was entirely legitimate (Tr. at 66-67). Of significance concerning this first of several meetings between Dembe and Kreshik was Dembe's trial testimony that Kreshik at each meeting had neglected or refused to divulge either the parishioner's name or the reason for selling the securities abroad on the ground that it was "like information he had gotten in the confessional." (Tr. at 66). This testimony conflicted with Kreshik's grand jury testimony (Kreshik did not testify at trial) in which he claimed that he had supplied Dembe with the parishioner's name, one Anthony Pirozzi,*fn1 stating "I have no reason to hide anything from anyone," (Tr. at 564) and that Pirozzi had never instructed him that the Bills had to be sold abroad. (Tr. at 564-65).*fn2 Kreshik also testified at the grand jury that at no time had he asked parishioner Pirozzi where the latter had gotten the large number of securities in question. (Tr. at 564).

At a second meeting between Kreshik and Dembe, occurring approximately ten days after the first, Kreshik informed Dembe that the securities were not "bonds" but Treasury Bills. Dembe examined several of the Bills which Kreshik had brought him and determined that they were not counterfeit. After Kreshik repeatedly reiterated his parishioner's interest in selling the securities abroad, Dembe agreed to put Kreshik in contact with someone "who has some knowledge of securities in foreign markets." (Tr. at 76).*fn3 The "someone" Dembe had in mind was appellant Alfred Brawer, a man not known to Kreshik, but one whom Dembe knew as a customer of the bank and as one who also had had previous dealings in foreign securities. Brawer characterized himself as a "fiscal monetary expert as to foreign currency transactions and banking accounts normally in other countries." (Brawer Brief at 27).

Dembe arranged a meeting between Kreshik and Brawer for some time in late March or early April, at Kreshik's parish in Bayonne. Dembe introduced Brawer as "the gentleman that will be able to take care of the securities" (Tr. at 561) and then apparently departed the scene, with no further participation in the ensuing events.*fn4

As a result of the meeting at the parish Kreshik went to Pirozzi's home, picked up a package containing the Treasury Bills, and delivered them to Brawer the following morning. Appellant Kreshik contends that his involvement in the transaction, which he characterized as an innocent attempt to help an ailing parishioner who wanted to sell the securities anonymously so that his business partners would not know of it, ended with delivery of the bills to Brawer, and that he had absolutely no involvement in, or knowledge of, the events following. (Kreshik Brief at 4). The record tends to support Kreshik's contention, since the testimony of none of the witnesses at trial connected him with the subsequent actions of appellants Brawer, Ignomirello and co-conspirator Mauceli.*fn5 Mauceli, a government witness, testified that he never knew or even saw Kreshik. (Tr. at 124-25). Dembe testified that after Mauceli's arrest, "Father Kreshik was just as shocked as I was" and that Kreshik indicated he was going to see his ailing parishioner. (Tr. at 118).

On April 9, 1969, approximately one week after he first discussed the Treasury Bills with Kreshik, Brawer telephoned Mauceli, a photographer who lived in Teaneck, New Jersey, with whom Brawer "had had other big financial transactions." (Brawer Brief at 29). Brawer told Mauceli that "I finally got something with which we can make some money" (Tr. at 130), explaining that he had received a large quantity of Treasury Bills from a priest who, in turn, had obtained them from a parishioner who wanted to sell the Bills abroad because of "tax considerations." (Tr. at 130-31). Brawer assured Mauceli that the Bills were not stolen or tainted in any way, stating, "Would a priest get involved in stolen items?" (Tr. at 131). Brawer knew that Mauceli had foreign contacts who might be interested in buying the securities and asked him if he would help negotiate a sale abroad. Mauceli said he could telephone a Canadian contact, one Jacques Riel, immediately. Brawer agreed to the idea. (Tr. at 133). Mauceli testified at trial that Brawer had outlined explicit conditions for the sale of the securities: (1) the Bills had to be sold abroad (Tr. at 135); (2) the Bills should be sold at "90 percent of face value, and if that proved difficult to ask for 85 percent of face value" (Tr. at 131); (3) Brawer and Mauceli would share equally 10% of the sale price as their "commission" (Tr. at 150); (4) the sale "was supposed to be and had to be a cash deal" (Tr. at 144); (5) the securities had to be sold as quickly as possible -- "within two days at the most" (Tr. at 178); and (6) the identity of the priest had to be kept secret, for "tax reasons"*fn6 (Tr. at 139). Mauceli quickly telephoned the Canadian, Riel, and made arrangements to fly to Montreal in two days' time, that is, on Friday, April 11th. Brawer would meet Mauceli at LaGuardia Airport and give him the $262,000 worth of Bills for the trip to Montreal.

On Friday, April 11th, the two met at the airport, as scheduled. Brawer had asked a friend, appellant Ralph Ignomirello, to accompany Mauceli on the trip to Montreal "just in case something happened because these were bearer instruments and * * * could be stolen * * * and whoever had possession of them could easily sell them." (Tr. at 142).*fn7 According to Mauceli's trial testimony, Mauceli again asked Brawer if the securities were legitimate; Brawer assured him they were, stating, "You can take them to any bank and check them against any stolen securities list and you will find that they are not stolen. * * * But I can't say what might show up three, four, five, six months from now." (Tr. 143-44). While Ignomirello was purchasing his plane ticket, and out of earshot, Brawer also informed Mauceli that if this deal went well, "There was an additional $500,000 worth of Treasury Bills that we could sell later." (Tr. at 144).

In Montreal, Mauceli, using the name "Steve Marsh", and Ignomirello met with Jacques Riel, Mauceli's contact. After being informed of the facts surrounding the Treasury Bills, Riel asked Mauceli who Ignomirello was. Mauceli answered that he "represented the interests of the priest," to which Ignomirello remarked, "Yes, that's true." (Tr. at 149). Riel agreed to help Mauceli sell the securities to Canadian buyers, taking as his commission between one and three percent of the face value of the Bills. Riel took the two travellers to the offices of the North American Express Monorail Company, Ltd., where two officers of that company, Joseph Welsch and Frank Bubic, indicated an interest in the securities. Welsch, however, first wanted to know the serial numbers of the Bills so that he could have his bank check to see whether the Bills were stolen. (Tr. 153). Ignomirello produced the securities; Welsch copied the numbers. Near the close of this meeting, Welsch and Bubic asked whether Mauceli had any other securities to sell; Ignomirello nodded a signal to Mauceli. The latter then indicated that there might be an additional $500,000 worth of Treasury Bills available for sale, and that they could be bought for 85% of the face value.*fn8 The Canadians expressed interest in purchasing this large quantity of bills as well. (Tr. at 155). The meeting ended with the understanding that Mauceli and Ignomirello would return to New York City and that Mauceli would telephone Welsch and Bubic on the following Monday, April 14th, to confirm the sale. On the way to the airport Ignomirello warned Mauceli that Brawer would be angry because the deal had not been consummated the same day, as per his instructions.

Ignomirello had spoken with clairvoyance. When the two met Brawer at his home that evening, Brawer was indeed angry, criticizing Mauceli for "leaving [the serial] numbers floating around Canada" and for bungling the deal. (Tr. at 163). Brawer then asked Mauceli if he knew anyone in Switzerland (where Brawer had a bank account) who might be interested in purchasing the Bills. Mauceli answered that he did not, but that a friend of his, one Bill Zylka, did have a contact in Zurich who might be interested in negotiating a sale. Brawer directed Mauceli to call Zylka, but instructed him not to mention Brawer's involvement. (Tr. at 165). Mauceli met with Zylka the next day, Saturday, April 12th, and made arrangements to fly to Switzerland on Monday, April 14th.

Mauceli's trip to Switzerland was unproductive. Zylka's Swiss contact was unwilling to agree to the terms of sale: Mauceli wanted to sell within two days' time as per Brawer's orders; the Swiss contact insisted on ten days. The deal fell through. Mauceli flew back to New York City that same day, April 15th, 1969, where he was met by Brawer at the airport. Brawer was not pleased with Mauceli's efforts, again admonishing him for "showing these bills and the [serial] numbers all over the world, and we might have some problems because of that." (Tr. at 178).

At the airport Mauceli offered to, and did, call the Canadians to see if they still were interested in the securities. They indicated that they were interested, and arranged for Bubic to fly to New York City the next day to meet with Mauceli. The two did meet the next day, April 16th, and they proceeded to the Wall Street area. They went to the Canadian Imperial Bank of Commerce where they deposited the Bills. Bubic told a bank official that the Bills had come from his attorney in Montreal and that they were to be used as a good-faith deposit on a $2 million contract in which his company was involved. The Bills so deposited, Mauceli and Bubic flew to Montreal, where the deal was to be consummated the next day. That evening Mauceli telephoned Brawer to inform him of the developments. Brawer told Mauceli that Canadian money would be acceptable, and instructed him to take a circuitous route back to New York City after completing the deal. (Tr. at 190 -91).

The next day visited new problems on Mauceli's odyssey, however. The Canadian bank with which Bubic and Welsch were dealing insisted on proof of ownership of the Bills. (Tr. at 192-93). Mauceli telephoned Brawer again long distance. According to Mauceli, Brawer suggested that Mauceli represent himself as the owner, and that he sign an affidavit so indicating. The bank wouldn't accept the affidavit. (Id.) Mauceli called Brawer again. The substance of his conversation was hotly contested at trial, for reasons that become evident.*fn9 Mauceli testified that in this second telephone conversation, Brawer had said to him: "Well, if they will do the deal today, see if they will accept [the securities] for 65 percent of face value, but they must do the deal today." ...


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