techniques of Walston. Production into evidence of all of the records of Walston to prove a negative fact would have been of no practical benefit to the jury or the defense.
The defense was given a full opportunity to cross-examine Mr. Rosa as to Walston's record-keeping techniques and accuracy, and as to the correctness and thoroughness of Mr. Rosa's search. Although his expertise was attacked, the question of the accuracy of the search and its reliability were proper questions for the jury. There was adequate evidence upon which the jury could conclude that the certificates were either stolen, unlawfully converted or unlawfully taken from the possession of Walston.
The documents and records examined by Mr. Rosa included practically all of Walston's records from the spring through the fall of 1970. These records were from a practical standpoint irremovable and unavailable without great inconvenience. Therefore, it was not essential that they be produced. 4 Wigmore on Evidence, § 1192(i) (3rd Ed. 1940). Wigmore states that "testimony, by one who has examined the records, that no record of a specific tenor is there contained is receivable instead of producing the entire mass [of documents] for perusal in the court-room." 4 Wigmore on Evidence, § 1231, p. 441 (3rd Ed. 1940). Randall v. United States, 148 F.2d 234 (5th Cir. 1945); See Yoffe v. United States, 153 F.2d 570, 575 (1st Cir. 1946); Bowen v. United States, 153 F.2d 747, 750 (8th Cir. 1946). See 4 Wigmore on Evidence, § 1244(5) (3rd Ed. 1940); cf. Rule 27, Federal Rules of Criminal Procedure (1971) (official records) which fully incorporates Rule 44 of the Federal Rules of Civil Procedure (1970); T'kach v. United States, 242 F.2d 937 (5th Cir. 1957) (official records).
In Nichols v. United States, 48 F.2d 46, 49 (5th Cir. 1931), a postmaster and others were permitted to testify that a person claimed to be fictitious did not have such a name in the post office's address records or in the directories and telephone books of the community. The witnesses were also allowed to testify that they had never known a person of that name in the vicinity. This evidence was permitted to prove the negative fact of the non-existence of the person in that community.
Defendants contend that assuming the testimony of Mr. Rosa was admissible, at best the evidence would establish only a mysterious disappearance as opposed to a theft or unlawful conversion or taking. In United States v. Marcus, 429 F.2d 654 (3rd Cir. 1970), the court held that direct evidence of the theft of the securities was not required, where shortly after the disappearance the securities were located in the possession of the defendant in another state. Such evidence sustained both the finding of a theft, and that interstate commerce was involved. Although in that case there was testimony by a witness that he had actually seen the securities in possession of the brokerage house and testimony by an expert that the securities could not have been negligently misplaced, the evidence in this case is sufficient to likewise establish both that the securities were stolen and that they were transported through interstate commerce.
Title 18 U.S.C.A. § 2315 requires that the value of the securities be $5,000 or more if the conduct was receiving, concealing, storing, bartering, selling or disposing of stolen securities, and if the conduct was pledging or accepting the security as security for a loan, the securities must have a value of $500.00. Regardless of whether the applicable value in this case was $500.00 or $5,000.00, the securities involved in the present case clearly exceeded the value of $5,000.00. A stipulation was entered into between the government and defense counsel showing that New York stock exchange quotations for Chrysler Motors common stock during the entire calendar year of 1970 would show a low quotation of 16 1/8 per share to a high quotation of 35 3/4 per share (8-148-149), so that the total low value for the number of shares involved would be in excess of $60,000.00.
The defendant's contention is that Walston & Company, upon ascertaining that the securities were missing, placed a "stop" on the securities prior to December 14, 1970 and that, therefore, the securities were no longer of any value. This contention is without merit. The value of the securities may be determined by the market value at the time and place of the theft. United States v. Tippett, 353 F.2d 335, 337 (4th Cir. 1965), cert. denied, 383 U.S. 908, 86 S. Ct. 889, 15 L. Ed. 2d 664 (1966), cited in United States v Nall, 437 F.2d 1177, 1187, n. 8 (5th Cir. 1971); United States v. Riso, 405 F.2d 134, 137 (7th Cir. 1968). Since the stop order was not placed on the securities until after Walston & Company found the securities to be missing, regardless of the effect of the stop order, the securities were of a value in excess of $5,000 at the time of the theft.
The "stop" order would not make the securities worthless since under the negotiable instruments law of Pennsylvania, established through the adoption of the Uniform Commercial Code, a stop order does not prohibit the securities from having full face value in the hands of a bona fide purchaser for value. The securities were endorsed in blank and could be freely transferred by delivery and could pass to a bona fide purchaser. Pa. Stat. Tit. 12A, § 8-301 (1970); Young v. Kaye, 443 Pa. 335, 345-46, 279 A. 2d 759 (1971). A bona fide purchaser for value of stolen securities endorsed in blank has the right to have the securities registered in his name when presented to the issuer. See Article VIII, § 405(3) of the Uniform Commercial Code, Pa. Stat. Tit. 12A, § 8-405(3). Therefore, even after the stop order was entered, the securities would have had a value in excess of $60,000.00. Consequently, the jurisdictional value of the securities was clearly established. In addition the matter was left to the jury as to whether the jurisdictional amount had been reached and the court specifically permitted the jury to consider the effect of the "stop" order, if any, in reducing the value of the certificates (12-40). This charge was undoubtedly far more favorable to the defendants than that to which they were entitled.
KNOWLEDGE THAT THE SECURITIES WERE STOLEN
Defendants contend that the evidence was not sufficient to permit the jury to find guilty knowledge on the part of the defendants that the securities were stolen and that the jury could not infer guilty knowledge "from the unexplained possession of recently stolen property," because of the length of time intervening between the disappearance of the securities and the attempt to pledge the securities. It is clear that unexplained possession of recently stolen property will permit the jury to infer the guilty knowledge. United States v. Kibler, 457 F.2d 95, p. 99 (decided March 13, 1972 (3rd Cir.), citing United States v. Allegrucci, 299 F.2d 811 (3rd Cir. 1962); Hale v. United States, 410 F.2d 147 (5th Cir. 1969), cert. denied, 396 U.S. 902, 90 S. Ct. 216, 24 L. Ed. 2d 179 (1969).
The evidence reveals that one of the two certificates disappeared from Walston's vault sometime after June 2, 1970.
The other certificate was last identified as being in Walston's possession on August 17, 1970. The final search and audit by Mr. Rosa was completed on October 5, 1970. The exact date of the theft is not known. The certificates were found in the possession of the defendants on December 14, 1970. The one certificate could possibly have been stolen as long as six and a half months prior to the date they came into Chilengarian's possession. Under all of the circumstances of the case, determination of guilty knowledge was a proper matter for the jury to determine. See Lee v. United States, 363 F.2d 469 (8th Cir. 1966) (a five months' period). The court expressly advised the jury that the inference of guilty knowledge from mere possession could be drawn only if it found the securities to have been stolen as opposed to the possible unlawful conversion or unlawful taking (12-45, 48 and 12-79). In addition there was extensive direct testimony by Chilengarian of the guilty knowledge of himself and other of the defendants, and considerable circumstantial evidence of guilty knowledge of all defendants.
AGENTS PROPERLY USED REPORTS TO REFRESH RECOLLECTION
The agent who had made notes contemporaneously with or shortly after the events as to the various meetings was permitted to examine his notes repeatedly before testifying as to the precise meetings and details of the meetings with certain of the defendants. The agent testified that he would have to examine his report to refresh his recollection of the details of the events. Permitting this to be done was clearly within the trial court's discretion and I was satisfied from all of the testimony presented by the agent that he was refreshing his recollection for the purpose of being entirely accurate in the details of his testimony. McCormack, Law of Evidence, § 9 (1954); 3 Wigmore on Evidence, § 758 (1970); Esperti v. United States, 406 F.2d 148, 150 (5th Cir. 1969), cert. denied, 395 U.S. 938, 89 S. Ct. 2005, 23 L. Ed. 2d 454 (1969), cited in United States v. Jenkins, 442 F.2d 429, 438 (5th Cir. 1971). It was obvious to the jury that the witness was frequently referring to his notes and it was within its province to evaluate the accuracy of the testimony given by the agent.
FAILURE TO PRODUCE THE GOVERNMENT INFORMER
Defendants contend that the failure of the government to call the informer, Charles Cardonick, was a "fatal flaw," requiring a judgment of acquittal. It is clear that Charles Cardonick was present at most of the meetings that took place between the agent and the various defendants. The government, however, is not required to call all witnesses who are competent to testify and this applies to special agents and informers who participate in the transaction. United States v. Peterson, 424 F.2d 1357, 1363 (7th Cir. 1970); Velarde-Villarreal v. United States, 354 F.2d 9, 12 (9th Cir. 1965); Washington v. United States, 275 F.2d 687, 690 (5th Cir. 1960). There is no allegation by defendants nor any indication that the government was concealing any evidence which would tend to exculpate any of the defendants as was condemned in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The jury was instructed that where a witness who was particularly available to and might have been called by the government was not called, the jury might infer that the witness would testify unfavorably to the government. United States v. Jackson, 257 F.2d 41, 43 (3rd Cir. 1958), citing Graves v. United States, 150 U.S. 118, 14 S. Ct. 40, 37 L. Ed. 1021 (1893). The charge specifically mentioned that Cardonick was not called as a witness. (12-16).
Counsel for Blank complains that his pretrial discovery motion to determine the name of the informer was improperly denied. His counsel was appointed approximately five and a half weeks before the trial date. Ten days before the date fixed for trial a motion for pretrial discovery including the names and addresses of all informers was filed on behalf of Blank. Prior to Blank's counsel being appointed, other defendants had filed similar pretrial discovery motions but upon government counsel making available to all defendants, including Blank, a copy of the agent's entire investigation report which included information concerning the informer, those motions were withdrawn. Blank's motion for discovery was refused just prior to the start of the trial.
The identity of an informer need not always be revealed by the government prior to the trial. Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). See McCray v. Illinois, 386 U.S. 300, 311, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); United States v. Skeens, 145 U.S. App. D.C. 404, 449 F.2d 1066, 1069-70 (D.C. Cir. 1971); United States v. Kelly, 449 F.2d 329 (9th Cir. 1971). In Rugendorf the Supreme Court distinguished Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), where "the informant had played a direct and prominent part, as the sole participant with the accused, in the very offense for which the latter was convicted." Id. at 534, 84 S. Ct. at 829. (Emphasis added). In the present case the informer's testimony was not essential and there was no showing that the defendants were unable to obtain the informer as a witness or that they were in any way prejudiced by not earlier ascertaining his identity. It is clear, however, that Blank knew the informer's identity at the time of trial. The original pretrial motion (later withdrawn), filed on behalf of Alan Weinberg, specifically asked for any statements of Charles Cardonick. Before commencement of the selection of the jury, counsel for Kasparian stated that he knew that Cardonick was involved but that he understood the government would not call Cardonick as a witness. This was confirmed by government counsel. (1-11). It was then also indicated that Cardonick might be called by counsel for one of the defendants. On the first day of the taking of the testimony, Cardonick was revealed directly in the testimony as an informer who played an active role in the transactions. If he was not known prior to that time by Blank or his attorney, he was at least revealed as of the first day of taking of testimony and any additional question as to his identity or whereabouts could have been obtained at that time by cross-examination. The trial continued for seven more trial days prior to counsel commencing closing addresses. No further request was made on behalf of any counsel that Cardonick's identity or whereabouts be further revealed or that he be produced as a witness. There was no showing that Blank was in any way prejudiced by not having the information earlier, if indeed he did not know prior to the first day of trial that the informer was Charles Cardonick.
The government should not construe my refusal to require that the informer's name in this case be disclosed to the defendant Blank as being precedent that it may with impunity refuse in every situation to make such disclosures. Unless there is some valid reason (such as a reasonable fear of physical harm to the informer or his family), the policy should be one of free disclosure by the government.
COURT'S CHARGE ON DEFENDANT'S FAILURE TO TESTIFY
At the trial of the case, neither Gornish nor Kasparian testified. Blank and Weinberg did testify. Gornish requested the court to charge as follows:
"The law does not require a defendant in a criminal case to take the stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of one or more defendants to testify."