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United States v. Tyers

decided: November 15, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
DENNIS CHARLES TYERS, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, entered after a jury trial convicting the appellant of violation of 18 U.S.C. §§ 2 and 659 by reason of possession of blank bank money orders valued at more than $100 which had been stolen while moving in interstate commerce.

Hays, Feinberg and Timbers, C.jj.

Author: Hays

HAYS, Circuit Judge:

Appellant was convicted after a jury trial in the United States District Court for the Southern District of New York of possessing blank bank money orders valued at more than $100 which had been stolen from an interstate shipment in violation of 18 U.S.C. §§ 2 and 659 (1970). We affirm.

The Government produced evidence tending to show that appellant had told one Aaron Finkelstein that he had approximately 2,000 blank bank money orders for sale. Finkelstein agreed to find a buyer, and in a series of three meetings in early June, 1972, the two arranged the sale. At the last of these meetings Tyers told Finkelstein that he wanted him to meet his partner, who had to approve the sale, and arranged a future meeting.

Meanwhile Finkelstein arranged to sell the money orders to one "Vito" who, unknown to Finkelstein, was an undercover agent of the Secret Service.

On June 14, 1972, Finkelstein met again with appellant who was accompanied by his partner, Mallia. In discussing aspects of the sale Mallia mentioned that the money orders were obtained from Kennedy Airport.

On June 16, 1972, Aaron Finkelstein and his brother, Joel Finkelstein, met Tyers and Mallia on Long Island. Together they drove to a hotel in Manhattan. Leaving the others outside the hotel Tyers and Aaron Finkelstein carried the merchandise to a room in the hotel where they met the "buyer," Vito, who was with another undercover agent. After introductions Tyers produced the money orders from suitcases which he carried. One agent asked if the money orders were "hot." Tyers replied that they were not. When asked if the money orders were legitimate Tyers insisted that they were and claimed that they had been obtained in a bank burglary. At this point one of the agents signalled surveilling agents stationed nearby who entered the room and seized the money orders.

In his defense appellant claimed that Aaron Finkelstein had told him that he needed one or two "big" people to accompany him on a business trip to Manhattan. Appellant agreed to do the job and hired Mallia to assist him. He denied any knowledge of the contents of the valise he carried into the hotel room or the nature of the transaction. He also denied making the statements he is alleged to have made to the undercover agents in the hotel room.

Appellant does not contest the sufficiency of the evidence to support his conviction. However, he argues that the trial court's charges to the jury contained numerous errors and that the evidence against him was not so strong that these errors can be deemed harmless.

Appellant contends that the trial court erred in failing to charge that in order to convict, the jury had to find that the money orders were in interstate commerce when received and possessed. The court charged instead that " at the time of the theft " the money orders had to be "part of a foreign or an interstate shipment." (Emphasis added.)

In United States v. Berger, 338 F.2d 485, 487 (2d Cir.), cert. denied, 380 U.S. 923, 13 L. Ed. 2d 809, 85 S. Ct. 925 (1964), this Court said:

"Congress has [in section 659] undertaken to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions."

See also United States v. Augello, 452 F.2d 1135, 1141 (2d Cir. 1971), cert. denied, 406 U.S. 922, 32 L. Ed. 2d 122, 92 S. Ct. 1787 (1972); United States v. Thomas, 396 F.2d 310, 315 (2d Cir. 1968). "The use of interstate communication is logically no part of the crime itself. It is included in the statute merely as a ground for federal jurisdiction." United States v. Blassingame, 427 F.2d 329, 330 (2d Cir. 1970), cert. denied, 402 U.S. 945, 29 L. Ed. 2d 114, 91 S. Ct. 1629 ...


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