Appeals from judgments of conviction for violations of 18 U.S.C. §§ 371, 1343 and 2314 after a jury trial in the United States District Court for the Southern District of New York, Hon. Charles H. Tenney, Judge.
Mulligan, Timbers and Van Graafeiland, Circuit Judges.
The appellants Herbert Kaminsky and Harry Levine Benson were convicted on June 2, 1976 after a jury trial before the Hon. Charles H. Tenney, United States District Court for the Southern District of New York, on three counts of an indictment charging 1) conspiracy to defraud, 2) the use of a wire communication in interstate and foreign commerce in the execution of the scheme to defraud, and 3) inducing an individual to travel in interstate and foreign commerce in the execution of a scheme to defraud in violation of 18 U.S.C. §§ 371, 1343 and 2314. The defendant Mari-Ann Danise was found guilty on the two substantive counts but the jury was unable to reach a verdict as to her on the conspiracy count. The convictions are affirmed.
The victim of the swindle was one Hans Buhler, a Swiss diamond merchant, who brought to the United States two precious stones, a 9.88 carat diamond and a 8.35 carat emerald which together were valued at more than $200,000. Kaminsky and Danise obtained possession of the diamond from Buhler in New York on the pretext that they wished to have it appraised and shown to a prospective customer. Buhler received in exchange a cash memorandum receipt. The defendant Benson was then introduced to Buhler by Kaminsky as the purported buyer. Buhler thereupon gave the emerald to Kaminsky as a commission for the sale. He never saw either stone again. The defendants through a series of false representations then induced Buhler to make trips to Chicago, London, Zurich, New York and Las Vegas. The well-travelled Buhler was unable to recover either the stones or the purchase price and finally realizing that he was the victim of a fraudulent scheme, advised the Federal Bureau of Investigation.
Appellants raise a variety of points on appeal which we consider to be meritless. However, one issue apparently has never been litigated or discussed since there is no reported federal opinion directly in point. Although the indictment named Buhler as the owner of the precious stones and the Government maintained this position throughout the trial, appellants argue that Buhler's claim that he purchased the diamond from a private party through one Werner Barth, a Zurich jeweler, was false and that the court below abused its discretion in failing to grant a continuance during the trial so that Barth's deposition could be obtained in Switzerland. Appellants had interviewed but not deposed Barth in Switzerland and he indicated that he had not sold any 9.88 carat diamond to Buhler. Appellants urge that a conviction under 18 U.S.C. § 2314 cannot be properly obtained unless the Government can establish that the property obtained by the false pretenses of the defendants was lawfully owned by the person defrauded.
Appellants urge that the second paragraph of section 2314*fn1 which is here relevant was enacted by Congress in 1956 to protect "honest citizens" and that the Barth deposition would establish that Buhler had no title to the diamond and that he in fact was a jewel thief not within the ambit of the statute. The legislative history of the statute depended upon by appellants*fn2 indicates that Congress was concerned that the victims of confidence men included "retired persons, widows and also business and professional men," but of course Congress was also concerned that "our laws must be kept at a peak level of effectiveness in order to deal with these criminals." It would hardly comport with this congressional concern were we now to exculpate confidence men who prey upon citizens (or even aliens) whose character is suspect. We cannot reasonably or fairly interpret the broad congressional concern for the honest citizen expressed in the House Report cited in footnote 2 to support a congressional intent that others are fair game for the swindler. It is accepted that the prostitute may be raped, the burglar's home burgled, the killer murdered and the thief a victim of larceny. Such a restricted and unusual interpretation of section 2314 as urged by appellants would have to be demonstrated by clear language in the statute itself and there is nothing on its face or in the legislative history to support the strained reading urged upon us. While it is generally held in a civil suit where both parties are guilty of criminal behavior with respect to the cause sued upon, that the court will leave the parties where it finds them and refuse to act as a referee among thieves, a criminal action is on a manifestly different footing. Buhler is not the plaintiff here. The United States has brought a criminal proceeding against defendants alleged to have engaged in a crude swindle which induced Buhler to travel in interstate and foreign commerce. Buhler's gullibility or his own criminal background is not relevant to the inquiry as to whether the defendants were properly convicted under section 2314.
Appellants only authority for this position, aside from the legislative history which we have recited, consists of two ancient New York cases, McCord v. People, 46 N.Y. 470 (1871) and People v. Tompkins, 186 N.Y. 413, 79 N.E. 326 (1906), both of which involved victims of confidence men who were induced to part with property in exchange for the performance of an illegal act. These cases are not in point since Buhler parted with the diamond expecting it to be appraised and shown to a bona fide customer. He surrendered the emerald to pay a commission for what he was led to believe was a lawful sale. In any event, in Tompkins the court reluctantly followed McCord indicating that at least 12 other states had rejected the narrow New York view which even then was too restricted to permit the practical administration of criminal justice. People v. Tompkins, supra, 186 N.Y. at 416.
Appellants also argue that under these cases and generally in the states, a defendant could not be properly convicted of the crime of obtaining property by false pretenses unless the victim was persuaded to part with title to the goods. If he was merely deprived of possession, he could only be properly charged with the common law crime of larceny by trick.*fn3 Since it is claimed that Buhler did not have title to the jewels, appellants urge that he could not be properly convicted under section 2314. The appellants are correct in their appraisal of the common law distinctions which did exist among the various types of theft. However, their reliance on them today is without any justification.
The states generally have abolished the distinctions which had existed among the crimes of obtaining property by false pretenses, larceny by trick, embezzlement and larceny by trespass. These distinctions which bedeviled prosecutors, law students and even law professors have long since disappeared. See generally Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469 (1976); Goodhart, The Obsolescent Law of Larceny, 16 Wash. & Lee L. Rev. 42 (1959). In New York the distinctions have been obsolete since 1942.*fn4 They are similarly extinct in federal jurisprudence.
In Morissette v. United States, 342 U.S. 246, 272-73, 96 L. Ed. 288, 72 S. Ct. 240 (1952), Mr. Justice Jackson extensively reviewed the underlying federal larceny statutes codified in 18 U.S.C. § 641. After noting that the states had generally abolished the distinctions among the various types of theft, he concluded that "[the] purpose which we here attribute to Congress parallels that of codifiers of common law in England and in the States and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses." (footnotes omitted).
Again in United States v. Turley, 352 U.S. 407, 412-13, 1 L. Ed. 2d 430, 77 S. Ct. 397 (1957), the Court gave a broad construction to the term "stolen" in the National Motor Vehicle Theft Act (18 U.S.C. § 2312) and rejected the view of those circuit courts which would have limited the term to common law larceny.
More directly in point is Lyda v. United States, 279 F.2d 461 (5th Cir. 1960), where the court was called upon to construe the first paragraph of 18 U.S.C. § 2314.*fn5 The defendant urged that the term "stolen" goods should be interpreted restrictively to cover only a case where the taking of the property was unlawful (common law larceny by trespass) and not one where the property was surrendered to the defendants who later converted it (embezzlement). The court rejected the argument, relying in part upon Mr. Justice Stewart's opinion in Bergman v. United States, 253 F.2d 933, 935 (6th Cir. 1958), where the then Circuit Court Judge held, "The issue as to whether the goods were obtained by one of the unlawful methods of acquisition referred to in the statutes is not to be decided upon the basis of technical common law definitions."
In Lyda Judge Brown, while holding that the phrase "converted or taken by fraud" in section 2314 need not be interpreted under the facts in that case, ...