Appeal from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, convicting defendant-appellant of knowingly transporting a stolen diamond in interstate commerce in violation of 18 U.S.C. § 2314.
Gurfein, Van Graafeiland and Meskill, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge
Appellant was convicted following a jury trial in the United States District Court for the Southern District of New York of having knowingly transported a stolen diamond in interstate commerce in violation of 18 U.S.C. § 2314.*fn1 The diamond, which was set in a platinum ring, was on sale for $62,500 at the Neiman-Marcus store in Dallas and disappeared sometime between May 1972 and July 1972. Appellant, a Florida attorney with reported gross earnings of $16,000 on his 1972 tax return, claims that, in May of that year, he purchased the ring for $20,000 from a friend, since deceased, without having had it appraised and without seeing or receiving a bill of sale. Arguing the believability of this tale in support of his contention that his guilt was not proven beyond a reasonable doubt, he urges reversal. We think the trial court properly submitted the issues to the jury with correct instructions; and, finding no other error, we affirm.
Conviction under § 2314 requires proof of three elements:
1) that the value of the goods exceeded $5,000;
2) that defendant transported them in interstate commerce;
3) that defendant knew that they had either been stolen, converted or taken by fraud.
Appellant would add a fourth element: viz., that the goods were in fact stolen. He challenges the indictment for lack of such allegation and argues insufficiency of proof on the same issue.
The indictment, which tracked the language of the statute, charged that defendant transported the ring "knowing the same to have been stolen, converted and taken by fraud." It would, of course, have been impossible for appellant to have known that the ring was stolen if, in fact, it had not been. The latter is implicit in the former. See Hagner v. United States, 285 U.S. 427, 431, 76 L. Ed. 861, 52 S. Ct. 417 (1932). We see no necessity, therefore, for a redundant separate allegation of theft.
Proof that the ring was stolen, while circumstantial, was sufficient. United States v. De Kunchak, 467 F.2d 432 (2d Cir. 1972). Circumstantial evidence may, under some circumstances, be as probative as direct testimony. United States v. Bowles, 428 F.2d 592, 597 (2d Cir.), cert. denied, 400 U.S. 928, 27 L. Ed. 2d 188, 91 S. Ct. 193 (1970). We have held on a number of occasions that under § 2314 the unexplained disappearance of carefully handled and closely guarded goods suffices to support an inference of theft. United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, 414 U.S. 821, 38 L. Ed. 2d 53, 94 S. Ct. 116 (1973); United States v. Owens, 420 F.2d 305 (2d Cir. 1970). Viewing the testimony in the light most favorable to the Government, we think it established the careful handling and guarding required by these cases.
The jury was informed about special safes with closely guarded combinations, ever-present security personnel and strict regulations governing the movement of jewels in and out of the store. It was entitled to conclude, as it did, that there was no innocent explanation for the disappearance of the $62,500 ring, particularly when it quickly reappeared in someone else's hands without an innocent explanation for such change of possession.
The jury could also properly conclude, on the basis of additional testimony, that appellant knew the ring was stolen. Among the indicia of such knowledge upon which ...