It did not appear that this attorney made any reasonable inquiry as to the source of ownership by the defendant of these bonds, although the circumstances clearly called therefor. But even if I was mistaken in admitting this testimony, the matter was not pressed, either in the motions or at oral argument or in the briefs, and I deem the point waived. See Ace Grain Co., Inc., v. American Eagle Fire Ins. Co. of New York, D.C.S.D.N.Y. 1951, 95 F.Supp. 784, 786.
The foregoing, I think, disposes of defendant's contentions that there was insufficient proof that the bonds were stolen, converted or taken by fraud. It also disposes of his contention that he was an innocent holder in due course for value of negotiable securities without notice. Unexplained, he was anything but an innocent holder in due course for value under the circumstances as proved. He had it in his power to explain his possession if he fitted that description, but he chose to remain silent.
Defendant also attacks his conviction on the ground that the interstate character of the securities had terminated at the times they were sold. Here again, from the circumstances, the jury could infer that he transported or was instrumental in transporting these securities from the place of theft into Pennsylvania for sale at or about the time they were sold. Adapting McNally v. Hill, 3 Cir., 1934, 69 F.2d 38, it is certain that there comes a time in the transportation of stolen securities from one state to another when transportation ceases. If, at that moment, they lose their quality of 'moving as,' or 'which are a part of' or 'which constitute' interstate commerce, then always it would be impossible to enforce the statute against the sale or disposition of stolen securities. Plainly the statute contemplates a situation where the sale is an incident to the theft and transportation which preceded it, and when the sale is so tied up with the interstate transportation in furtherance of the scheme to unlawfully dispose of the stolen securities and constitutes the last step thereof, the characteristic of interstate commerce is preserved and the federal jurisdiction for trying the offense of sale of disposition is maintained.
At the trial, defendant objected to the cashier of the Homer City Bank testifying to a conversation which he had with defendant insofar as that conversation related to bonds which defendant stated his friend had in his possession in New York. This evidence was certainly relevant to the issues involved and the objection is without merit.
Objection was made to that part of the charge which related to the inference of guilt which can be drawn from possession of the fruits of crimes recently committed, unless explained by the circumstances or accounted for in some way consistent with innocence. I think this objection is without merit. See Rosen v. United States, 2 Cir., 1920, 271 F. 651; United States v. Segelman, D.C.W.D. Pa. 1949, 86 F.Supp. 114. As stated, defendant made no effort to account for his possession of all the bonds. Possession of the fruits of four crimes would not be consistent with innocence, nor would the circumstances of the disposal of some of the fruit. Although the attorney who sold the bonds for defendant stated the latter told him he had won some securities through gambling, it was for the jury to decide whether the inference was overcome. The jury was instructed that the inference fades with lapse of time and was a weak one as applied to the bonds taken in 1948 and sold a month or two later; and that no inference could be drawn from possession of the bonds taken in 1944 and 1945 and sold in 1948. It may have been error not to charge that, without explanation, an inference of guilt arose from possession of H.O.L.C. bonds called on May 1, 1944, and stolen on May 2, 1944, and although non-interest bearing, retained for four years. But if such was error, it was in the defendant's favor, of which he does not complain.
During the course of the charge, reference was made to certain testimony not being denied. Defendant contends that such statements have prejudiced his right to remain mute without adverse comment. I believe the law is well settled that if the case, as made out for the Government, is of such a nature as to warrant an inference of guilt, unless there is some contradiction by witnesses, the rule does not prevent the jury from considering the lack of contradiction on the part of witnesses for the defense. Jenkins v. United States, 4 Cir.,1932, 58 F.2d 556, certiorari denied, 1932, 287 U.S. 622, 53 S. Ct. 21, 77 L. Ed. 540; 22 C.J.S.,Criminal Law § 593. Any conceivable misunderstanding which might have arisen from this instruction was made clear and unequivocal when at the conclusion of the trial, the jury was instructed as follows: '(I)t was called to my attention that I said that certain facts testified to by the witnesses for the Government were not denied. Now, it has been pointed out that you do not need to believe those witnesses, even though there was no denial of what they said. That is true. The credibility and believability of a witness is for you to determine. You can believe everything they said, you can ignore everything they said. That is for you. The mere fact that it was not denied wouldn't help you believe it.'
Furthermore, to remove any possible doubt as to defendant's rights, at the beginning of the charge, at the request of defendant, it was said: 'The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussion or deliberations of the jury in any manner.' The court, in commenting upon the fact that certain testimony was not denied, was merely summarizing the evidence in the case to clarify the issues for the jury. In view of the foregoing instructions, I believe the jury was adequately informed on the rule of law that no unfavorable inference was to be drawn from defendant's failure to take the stand and that his interests in this respect were fully protected.
I conclude that the evidence and inferences to be drawn therefrom are sufficient to establish the defendant's guilt beyond a reasonable doubt and the verdict of the jury must be sustained as to each of the eighteen counts of the indictment. Accordingly, the motion for judgment of acquittal and the motion for a new trial is denied. An appropriate order will be entered.