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July 14, 1949


The opinion of the court was delivered by: GOURLEY

This is a criminal action and comes before the Court on motion of the defendant for a new trial and/or arrest of judgment. Rules 33 and 34 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

The defendant was tried by the court with jury and convicted on each count of a six count indictment.

 The statute under which the indictment was returned provides, inter alia, 'Whoever shall receive, conceal, store, barter, sell, or dispose of any goods, * * * securities, or money of the value of $ 5,000 or more, * * * moving as, or which are a part of, or which constitute interstate * * * commerce, knowing the same to have been stolen,' shall be guilty of a criminal offense. 18 U.S.C.A. § 416 (now Sec. 2315).

 This statute was repealed by the Act of June 25, 1948, 62 Statutes 862, and effective September 1, 1948, 18 U.S.C.A. § 416. However, for all practical intents and purposes since the offenses occurred prior to September 1, 1948, they are governed by the Act of Congress in effect at the time the offenses were committed.

 Motion for New Trial

 No objection has been made to any rulings made by the Court during the trial relative to the admission or rejection of testimony, and no objection was taken to any part of the Court's charge. The basis for the motion is premised on circumstances which the defendant believes made impossible a fair, just and impartial trial.

 Defendant's motion is supported by two theories:

 (a) As to the First and Second Counts of the indictment, it is necessary to premise the conviction on the testimony of an admitted perjurer.

 (b) That three counts of the indictment must be supported by proof of the burglarizing of three homes, and substantial prejudice, therefore, arose to the defendant.

 The burden of demonstrating prejudicial error is on the defendant. Myres v. United States, 8 Cir., 174 F.2d 329.

 (a) No merit exists as to the contention relative to the testimony which the government offered through a witness who had been convicted in a state court for perjury. In a most exhaustive manner the Court informed the jury as to the evaluation which could be given the testimony of a perjurer. In short, that a person convicted of perjury may testify in the federal courts, and it is the prerogative of the jury to determine the extent of credibility to be given the witness. The Court furthermore instructed the jury that said testimony must be scrutinized with the greatest care and caution. Although the perjurer was disqualified generally as a witness in the courts of Pennsylvania, the Pennsylvania rule does not apply in the federal courts. United States v. Margolis, 3 Cir., 138 F.2d 1002; Rosen et al. v. United States, 245 U.S. 467, 38 S. Ct. 148, 62 L. Ed. 406.

 (b) The statute clearly embraces several distinct offenses and the power of Congress to provide that separate acts, though parts of a continuous transaction, shall constitute separate crimes, cannot be doubted. Carpenter v. Hudspeth, Warden, 10 Cir., 112 F.2d 126.

 Where a single continuous transaction may constitute a violation of distinct provisions in a statute, the test in determining whether other separate offenses are charged in different counts of the indictment is whether each count requires proof of a fact which is not required of the others. Carpenter v. Hudspeth, Warden, supra.

 Where there is more than one count in an indictment, it is not proper to strike down the conviction of one count because evidence was received during the course of the trial on other counts of the indictment which might have had some effect on the jury's consideration of evidence presented on other counts. To set aside the conviction under the circumstances would seem to require a like reversal in any case in which there was a multiple count indictment. United States of America v. Thomas B. Ward, Jr., 3 Cir., 175 F.2d 556.

 Furthermore, the defendant did not ask or request the severance of the trial relative to those counts where such a request would have been proper.

 I, therefore, do not believe that any situation or condition exists which justifies or merits the granting of a new trial.

 Motion to Set Aside Conviction or in Arrest of Judgment

 The circumstances relating to each count of the indictment are different, and it, therefore, becomes necessary to consider the problems which exist as though there were six separate indictments.

 It is charged that on or about the 31st day of March, 1947, at McKeesport, in the County of Allegheny, in the Western District of Pennsylvania, the defendant, Irving Segelman, did knowingly and wilfully receive a certain stolen security, to wit, a $ 5,000.00 United States Treasury Bond, the property of one Nathan Tanzer, Yonkers, New York, which said security had theretofore been stolen, and which was moving as, and was a part of, and constituted interstate commerce from New York City, New York, to McKeesport, Pennsylvania; he, the said defendant, well knowing said security to have been stolen.

 Proof as to Count I

 The entry and burglarizing of the Nathan Tanzer home at Yonkers, New York, was carefully and thoroughly planned. Mr. and Mrs. Tanzer had gone away for the Labor Day week-end. During the afternoon of September 2, 1946, through the aid of a woman accomplice, the defendant and two associates forced their way into the home. Two daughters and a friend were in the home. Guns were displayed and for a period of over an hour the home was ransacked and burglarized. Among the property which was stolen was the bond or security involved in this count of the indictment. Before the burglary the defendant had brought his wife to McKeesport since she was going to bear him a child, and it was with the intention of making McKeesport their home, at least, until after the child was born.

 The whereabouts of the bond was next known when a person by the name of Mehlman presented it to a McKeesport bank as collateral security for a loan. It was then determined that the defendant had given the bond to Mehlman in payment of one form or the other of gambling obligations on or about March 31, 1947.

 In determining the sufficiency of the evidence to support the jury's verdict, the Court must take that view of the evidence which is most favorable to the government and give the government the benefit of all inferences which reasonably may be drawn in its favor. Myres v. United States, supra.

 In order to support the offense laid in said count of the indictment, it is necessary for the government to prove several things:

 (a) That on the 31st day of March, 1947, the defendant knowingly and wilfully received the stolen security of the value of $ 5,000 at McKeesport, in the County of Allegheny, in the Western District of Pennsylvania.

 (b) That said security was the property of Nathan Tanzer of Yonkers, New York.

 (c) That said security had theretofore been stolen.

 (d) That said security was moving as interstate commerce, or said security was a part of interstate commerce, or which constitute interstate commerce.

 (e) That said defendant well knew said security to have been stolen.

 No problem exists as to the proof being absolute that the security was the property of Nathan Tanzer, Yonkers, New York, that it was stolen from his home, and that it was subsequently in the possession of the defendant at McKeesport, Pennsylvania.

 The difficulty arises when consideration is given as to:

 (a) Did the defendant receive the stolen security at McKeesport, Allegheny County, Pennsylvania, on March 31, 1947, within the terms and intent of the Act?

 (b) Was the stolen security at that time moving as interstate commerce, was it a part of interstate commerce, or did it constitute interstate commerce within the terms and intent of the Act?

 (c) Did the defendant know said security was stolen when he received the same?

 (a) A most involved question exists in determining whether the testimony supports the basic charge laid in Count I of the indictment: 'That on the 31st day of March, 1947, the defendant knowingly and wilfully received the stolen security of the value of $ 5,000 at McKeesport, in the County of Allegheny, in the Western District of Pennsylvania.' (Emphasis supplied

  Considerable reliance has been placed by the defendant on the case of Gable v. United States, 7 Cir., 84 F.2d 929, to support his position that the indictment cannot be sustained as a matter of law under the proof.

 In that case the defendant was indicted, inter alia, 'Receiving securities, knowing them to be stolen.' Seven government bonds were procured by fraud or stolen by persons other than the defendant in the state of Missouri. They were thereafter transported to Illinois, and taken to the defendant for sale. The defendant never went to Missouri and there was no evidence to show that he knew of the theft or how the bonds were secured. It was held that the receiver is not guilty unless the property which he receives has been stolen while moving in or constituting a part of interstate commerce.

 I believe this case is clearly distinguishable from the case at bar.

 In the case at bar the defendant participated in the theft and secured possession as a result thereof. The only reasonable inference to draw is that the defendant brought the security from New York to McKeesport, Pennsylvania, since it was in his possession several months after the theft at McKeesport. The defendant, therefore, caused the security to constitute interstate commerce.

 It seems reasonable to me that once a person gets possession of a stolen security in one state and it is next determined to be in the same person's possession in another state, that he continues to receive the same knowing it to have been stolen.

 Generally when the word 'receive' is used, the impression or thought arises that possession is secured from a source outside of oneself or itself.

 However, the word 'receive' is also defined as to 'take,' to 'accept,' to be 'subjected to,' 'committed,' to 'get,' to 'acquire.' Webster's International Dictionary, ...

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