transported said securities from New York to Pennsylvania. Through his own activities he caused the securities to constitute interstate commerce. Therefore, since he gained possession before he came to Pennsylvania, that possession continued against all the world regardless of where he would go or what he would do.
On the basis of the reasons given in support of Count I, I reach the conclusion that the jury was justified in finding the defendant's guilt as to Counts II, III and V.
Regardless of the sufficiency of the proof to support Counts II, III and V, it is necessary to consider Counts IV and VI.
Where an indictment charges several offenses or the commission of one offense in several ways, the withdrawal from jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of indictment. United States v. Krepper, 3 Cir., 159 F.2d 958.
Withdrawal by the Court from the jury of parts of an indictment unsupported by evidence or the finding of the court in a motion for arrest of judgment that the evidence does not support part of the indictment, is not an amendment of the indictment, and is not even remotely an infraction of the constitutional provision that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.' Salinger v. United States, 272 U.S. 542, 47 S. Ct. 173, 175, 71 L. Ed. 398.
The fourth count of the indictment charges that on and about the 8th day of August, A.D. 1946, at McKeesport, in the County of Allegheny, in the Western District of Pennsylvania, the defendant, Irving Segelman, did unlawfully and knowingly sell to one Max H. Feldman, McKeesport, Pennsylvania, a certain stolen security, to wit, a $ 1,000.00 United States Treasury Bond, Serial No. 116213-C, the property of one Pincus Rothstein, Lawrence, Long Island, 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.
The sixth count of the indictment charges that on and about the 8th day of August, A.D. 1946, at McKeesport, Pennsylvania, the defendant, Irving Segelman, did unlawfully and knowingly sell to one Max H. Feldman, McKeesport, Pennsylvania, a certain stolen security, to wit, a $ 1,000.00 United States Treasury Bond, Serial No. 484667-H, the property of one Pincus Rothstein, Lawrence, Long Island, 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.
As to Counts IV and VI there is no question that the defendant sold the bonds to Feldman on August 8, 1946, at McKeesport, Pennsylvania. Furthermore, an inference can be drawn from recent possession of stolen securities that the possessor knew them to have been stolen, and sufficient proof exists to establish the defendant sold the bonds knowing them to have been stolen.
The major problem relates to the determination whether at the time of sale they were moving as, were a part of, or which constituted interstate commerce.
In view of what has been heretofore stated, the proof does not meet the burden required as to the securities moving in, or being a part of interstate commerce, at the time of sale.
An inference can not only be drawn that the possessor of recently stolen property is the thief, but a further inference that the possessor transported the property, knowing it to be stolen, in interstate commerce to another state where it was found in his possession. Morandy v. United States, supra.
Therefore, sufficient evidence exists in the record to establish that the defendant sold said securities, knowing them to have been stolen, since through his own act of transportation he caused them to constitute interstate commerce.
Since the problems in the instant case do not appear to have been considered by an appellate tribunal, it may be that subsequent determination of the questions will result in the discharge of the defendant.
It is, therefore, in the interest of the fair and just administration of justice that I make the following comment. The defendant should not be permitted to return to society without punishment for the offenses which he committed, for technical reasons.
There is no question in my mind that under the proof offered, the defendant would also be guilty of transporting or causing to be transported said securities in interstate commerce. My problem is to construe the indictment with the proof. I cannot rewrite or modify the phraseology used in the indictment.
The statute of limitations for said offenses is three years. 18 U.S.C.A. § 582 (now Sec. 3282).
Sufficient time remains to indict the defendant as to Counts I and II for transporting or causing to be transported said securities in interstate commerce. 18 U.S.C.A. § 415 (now Sec. 2314).
If authority existed, I would so direct, but the United States Attorney is vested with a large discretion as to matters being submitted to grand juries, and such discretion is not subject to the control of the District Court. United States v. One 1940 Oldsmobile Sedan, 7 cir., 167 F.2d 404; United States v. Thompson, 251 U.S. 407, 40 S. Ct. 289, 64 L. Ed. 333.
It would be a travesty on justice if the defendant were exonerated from the penalties of the federal law for technical reasons. In order to make positive that no such situation will arise, and for due precaution, I would suggest that the United States Attorney present an indictment to the September grand jury at the next term of court at Erie, Pennsylvania, which commences September 29, 1949. That said indictment should comprise two counts and charge the defendant with transporting or causing to transport said securities in interstate commerce, knowing them to have been stolen. 18 U.S.C.A. § 415 (now Sec. 2314).
The motion of the defendant to set aside the verdict or for the arrest of judgment as to each of the six counts of the indictment is refused.
An appropriate Order will be filed.
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