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February 26, 1971


Teitelbaum, District Judge.

The opinion of the court was delivered by: TEITELBAUM

Defendant, James Hamilton, was convicted of two counts of transporting in interstate commerce forged securities, i.e., two Travelers Express Money Orders, in violation of Section 2314 of Title 18, United States Code. He moves for a new trial on these grounds:

1. That the verdict was against the evidence, the weight of the evidence and the law;
2. That it was error to permit an agent of the Federal Bureau of Investigation, who later testified as a witness, to be present at the counsel table during the selection of the jury;
3. That the Court erroneously permitted the Government to introduce evidence of the general reputation of the defendant without the same having been placed in issue; and
4. That the prosecuting attorney made remarks highly prejudicial to the defendant in his closing argument.

 Upon review, I am of the opinion that each of the contentions are without merit and that the motion for new trial should be denied.

 It was the testimony of one Donald Bradley, an automobile mechanic and salesman, that one George Cauley possessed a number of money orders in blank and sought Bradley's help in cashing them; that, at the instance of Bradley, Cauley and Bradley met with the defendant for this purpose; and that it was agreed the defendant would be responsible for finding various persons who would cash the money orders. It was the further testimony of Bradley that money orders were given to the defendant after Cauley first imprinted them with a checkwriting machine. Marlene Brown, who worked for a short time as a cook at the Vann Hotel, testified that the defendant gave her a number of money orders for safekeeping and that she kept them for some time, used one and returned the rest. Andrew Kisner, admittedly a narcotic addict at the time of the offenses charged and who had been confined to prison for nine months prior to trial, testified that the defendant solicited him to cash the two money orders in question, that he was instructed to use the name of Thomas Lloyd as purchaser, that he cashed the money orders at the tavern of one Louis Shiring and that he received forty dollars for his efforts and returned the balance to the defendant.

 Defendant's case rested in part upon the testimony of Louis Shiring that, prior to cashing the money orders, he knew Andrew Kisner as Thomas Lloyd. This fact alone, if believed, could not pose a legally sufficient defense since, even if one uses his own signature in completing a stolen blank traveler's check, the instrument nevertheless becomes a forged security within the meaning of Section 2314. United States v. Franco, 413 F.2d 282 (5th Cir. 1969). The jury was so instructed. However, defense counsel contends that this testimony nevertheless weakened the Government's case since it contradicted Kisner's testimony that he had not used the name of Thomas Lloyd before. This conflict of evidence, however, is one which was solely within the province of the jury to resolve.

 Defendant also proferred the testimony of Richard Vann, the owner of Vann's Hotel and Bar, to the effect that the defendant knew Cauley and Bradley were attempting to pass questionable money orders and warned him not to take them. This testimony was not per se contradictory to the Government's evidence. However, defendant sought to have the jury draw the inference therefrom that the defendant, although knowing what Bradley and Cauley were attempting to do, wanted to have no part in it. It was for the jury to decide whether to accept or reject such an inference.

 Carole Jamerson, who was living with defendant at the time of the offense, testified that she was present at the meeting of Cauley and Bradley with defendant, that they sought to enlist the defendant in the enterprise in question but that defendant refused since he knew "Federal paper" was involved and customarily would not deal with such instruments. Here, again, the conflict between this testimony and that of Andrew Kisner was for the resolution of the jury.

 It is apparent from the foregoing that there was conflicting evidence presented by the Government and the defendant. The Government's evidence, if believed, clearly was sufficient to sustain the jury's finding of guilt beyond a reasonable doubt.

 It is defendant's contention that very little weight could be afforded to the testimony of Bradley, Kisner, and Brown since Bradley testified upon an understanding that he would not be prosecuted upon the money orders in question, Brown had pleaded guilty to an offense involving similar money orders and had not yet been sentenced and Kisner had pleaded guilty to the offenses in question, also without having been sentenced at the time of defendant's trial. All of these facts were fully explored before the jury. The jury also was instructed both to evaluate the interest of any witness in the proceedings ...

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