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United States v. Blair

decided: February 23, 1972.

UNITED STATES OF AMERICA
v.
ROBERT G. BLAIR, APPELLANT



Kalodner, Ganey*fn* and Max Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

MAX ROSENN, Circuit Judge.

This is an appeal from a judgment of conviction in the District Court for the Eastern District of Pennsylvania for causing altered securities to be transported in interstate commerce in violation of 18 U.S.C. § 2314 (1970).*fn1

Appellant raises three main contentions on appeal: (1) there was insufficient evidence for the case to go to the jury on the theory that he was the principal who caused the Western Union money orders to be transported in interstate commerce; (2) there was prejudicial admission of hearsay testimony; and (3) the district judge's charge was confusing, inaccurate, and prejudicial.

We shall deal with the issues in that order.

(1) THE SUFFICIENCY OF THE EVIDENCE

Shur Kleen Co., Inc. was a small store located on West Allegheny Avenue, Philadelphia, Pa., containing three or four racks of clothing. Its manager identified himself as "Buddy Blair." On August 12, 1969, a checking account was opened in the name of the company with an initial deposit of $350. The signature card for the account specified the precise Allegheny Avenue address, named "Fred Blair" as company president and one of two persons authorized and required to sign checks on the account. The other person authorized to sign checks on the account was one Diane Sproul.

On November 18, twice on November 24 and once on November 28, 1969, Western Union money orders*fn2 were deposited to the Shur Kleen Company account with the Girard Trust Bank. The orders were originally made out in the amounts of $10.00, $10.10, $10.05 and $20.00, but it was shown that each was raised to $20,000 prior to deposit. Three of the money orders were sent from 372 Central Park West in New York City. One was signed "Arthur Lang," one, "Jade, Inc.," and the third "Milton Elly." The fourth was sent from 3438 Central Avenue, Newark, New Jersey, although the sender was not identified. Three of the money orders included the following message: "Hope this payment brings all accounts up to date."

There was testimony that the money orders were received by Shur Kleen without having been altered, so that the change in the stated values would have had to occur between the delivery to Shur Kleen and the deposit at the bank. Once Girard accepted these money orders, it shipped them to the paying bank in New York City, creating the interstate transportation required by 18 U.S.C. § 2314. There is no proof as to who deposited the altered money orders, although appellant's fingerprint was on one of them.

There is a great deal of proof that appellant Blair began drawing large checks shortly after the deposits began. On November 21st, three days after the first money order was deposited, Blair went to the bank to inquire about how he could prepare a payroll for his business. Between November 21st and 28th, appellant withdrew large sums from the Shur Kleen account. These withdrawal checks were for $8,000, $9,000, $4,000, $10,000, $10,000, $20,000, and $6,000. Several of the checks were payable to the order of Girard Trust Company with receipts on the reverse side by Fred Blair indicating that he received the cash, and at least two included notations that they were for Shur Kleen's payroll. A treasurer's check on the bank for $10,000 was issued to the order of Fred Blair and paid by Girard Trust Company on the endorsement of "Fred Blair." The Western Union orders were drawn on the Chase Manhattan Bank in New York City. It discovered the alterations and refused payment.

Appellant contends that the evidence was insufficient to go to the jury; that at best the judge should have given a charge on aiding and abetting under 18 U.S.C. § 2 (1970).

On reviewing the motion for acquittal, "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Provenzano, 334 F.2d 678, 683-684 (3d Cir.), cert. denied 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964). The evidence need not exclude every other hypothesis interpreting the facts introduced at trial, provided that they do establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Boyle, 402 F.2d 757 (3d Cir. 1968), cert. denied 394 U.S. 934, 89 S. Ct. 1207, 22 L. Ed. 2d 464 (1969); United States v. Giuliano, 263 F.2d 582, 584 (3d Cir. 1959).*fn3

In this case, the evidence, particularly when viewed in the light most favorable to the Government, presents an overwhelming case that the appellant is guilty beyond a reasonable doubt. The only piece missing is evidence that the appellant personally deposited the money orders at the Girard Bank. The question then becomes whether such actions can be inferred, and the circumstantial evidence strongly supports such inference. Blair was president of the company to which the money orders were sent, and he was one of the two people on the bank's signature card. His fingerprint was on one of the money orders. Three days after the first of the orders was deposited, he personally visited the bank and inquired about how to withdraw cash for payrolls. On the same ...


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