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United States v. Gregg

decided: November 26, 1979.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT GREGG, APPELLANT



Appeal from a judgment entered after a jury trial in the Southern District of New York, Charles S. Haight, Jr., District Judge, convicting appellant of conspiring with, and aiding and abetting, others who embezzled, stole and misapplied funds of REA Express, Inc. Affirmed.

Before Feinberg, Timbers and Meskill, Circuit Judges.

Author: Timbers

This is an appeal from a judgment entered after a jury trial in the Southern District of New York, Charles S. Haight, Jr., District Judge, convicting appellant of conspiring with, and aiding and abetting, others who embezzled, stole and misapplied funds of REA Express, Inc.

Two questions are presented on appeal: (1) whether the district court erred in declining to charge the jury that, in order to convict appellant of aiding and abetting, they must find that he knew of the position held by his co-defendant Bates at REA; and (2) whether the district court erred in its charge to the jury on the issue of intent.

For the reasons below, we hold that the district court's instructions on both issues were correct. We affirm.

I.

On June 28, 1978, an indictment was returned charging appellant Robert Gregg and four others*fn1 with conspiracy, aiding and abetting and substantive violations of the statute which prohibits thefts from interstate carriers. 18 U.S.C. § 660 (1976). The first count charged all defendants with conspiracy to embezzle, steal and misapply funds of REA Express, Inc. ("REA"), in violation of 18 U.S.C. § 371 (1976). Counts Two, Three, and Four, respectively, charged Gregg with aiding and abetting the embezzlement, stealing, and misapplication of REA funds in the amounts of $7,861.42 on November 14, 1973, $12,884.69 on November 20, 1973, and $20,000 on January 25, 1974, in violation of 18 U.S.C. § 660 (1976).

Gregg and one co-defendant, Rayburn L. Morrison,*fn2 were brought to trial on September 18, 1978. At the trial evidence was adduced from which the jury could have found as follows.

In early November 1973, Raymond F. Maixner, Treasurer of REA, Harold D. Bates, Manager of REA's Accounting Department, and Ali Jakubowsky, Director of Taxation for REA, met in REA's corporate headquarters in Manhattan. At this meeting they formulated a scheme whereby they would steal REA funds through the tax department. Pursuant to the scheme REA checks would be made payable to someone outside of REA; that person would agree to cash the checks, keep a percentage of the stolen funds and return the balance to the other conspirators.

In furtherance of this scheme, Bates contacted Gregg, whom he had known for several years and who then was living in Florida. Bates asked Gregg if he would be willing to "wash" some REA checks made payable to Gregg in return for 10% Of the proceeds. Gregg said he would. In a subsequent telephone conversation, Bates told Gregg that the REA checks made payable to Gregg would be shown in REA's records as payments relating to REA's tax department and that a letter would be written by Jakubowsky explaining that Gregg was "our tax person within the Miami, Florida area." Bates testified that he assured Gregg that there was no need for concern about the scheme. Bates told Gregg:

"(Y)ou know, we are going to be doing something that is not legal, but there's no reason . . . to worry about (it) for the simple reason that the people that are with me doing this . . . we control all the paperwork . . . ."

The first transaction pursuant to this scheme took place on November 14, 1973 when Bates, Maixner, and Jakubowsky processed an REA check payable to Gregg in amount of $7,861.42. The check was entered in REA's records as a payment relating to tax matters. Gregg, after receiving the check, deposited it in a joint checking account in the name of himself and Bates at the Capital Bank in Miami. Similar transactions involving $12,884.69 and $20,000 checks took place on November 20, 1973 and January 20, 1974, respectively.

After depositing the checks in the joint account, Gregg drew checks payable to Bates for approximately 90% Of the total. Bates then divided his proceeds of the checks three ways with Maixner, Jakubowsky and himself.*fn3

At the conclusion of the three day trial, the district judge charged the jury that, with respect to the substantive counts, they need not find that Gregg was aware of Bates' position at REA in order to convict. Although Gregg's counsel failed to object to this portion of the charge at the time, his co-defendant Morrison did object. The judge declined to change the charge.

Gregg's counsel requested the judge to charge the jury that, in order to convict on the crimes charged, the government must prove specific intent. He submitted a proposed instruction on this issue which the judge declined to give in the form submitted.

The jury returned a verdict on September 25, 1978 convicting Gregg on each of the four counts in which he was named.*fn4 He was sentenced on November 14, 1978. From ...


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