The opinion of the court was delivered by: KNOX
Defendant, John J. Tauro, Jr., was indicted on six counts, one (18 U.S.C. § 2315) for receiving stolen securities of a value of $5,000 or more, to wit: five Continental Airlines, Inc. share certificates moving as part of interstate commerce between Denver, Colorado and Pittsburgh, Pennsylvania, and on the five remaining counts (18 U.S.C. § 2314) for causing to be transported the said share certificates in interstate commerce from Pittsburgh to New York City, New York.
Defendant's counsel thereupon filed a motion for new trial on the usual grounds that the defendant should have been acquitted, that the verdict was contrary to the weight of the evidence, that the court erred in refusing to charge the jury as requested and reserving the right to file additional reasons within ten days of the receipt of the transcript of the testimony. No such additional reasons were ever filed aside from the material submitted by the defendant himself. The motion also claimed that the court erred in admitting the opinion evidence of the witness Arthur Nehrbass who testified as to the value of blank stock certificates and also that the court erred in charging the jury as to the applicability of 18 U.S.C. § 2.
Trial in the case was originally set for March 9, 1973, but immediately before the date fixed, defendant discharged one attorney and secured another (his third) who asked for a continuance. While technically the change of attorneys was properly not grounds for continuance, the court nevertheless in its discretion granted the same to the new attorney so that he could prepare the case and the trial was continued to April 9, 1973, when it commenced. The motion for new trial was originally fixed for argument on Thursday, May 17, 1973, however, at the request of defendant and his counsel (defendant personally signed the request) the argument was continued to June 25, 1973, at which time no one appeared. For fear that some failure of notice existed, argument was continued again to June 27, 1973, at which time defendant and his counsel appeared and each were permitted to argue separately with respect to the motion for new trial.
Further problems began to appear with respect to this case shortly after the verdict when the court began to receive communications from defendant's parents, from defendant himself and from others claiming that there had been a miscarriage of justice, that defense counsel did not adequately represent the defendant at the time of trial, that there was a conspiracy between defense counsel and the United States Attorney's Office and that defendant was being persecuted by military and governmental authorities.
The court has been most liberal in permitting defendant to present his own arguments and to present material in support of his post-trial motion. The defendant has now submitted an affidavit in support of the motion for new trial and a large mass of irrelevant material with respect to his participation in the Forum, an organization in Pittsburgh, and charges of desertion formerly pending against him before the military authorities.
No briefs have been submitted on either side of this case except for the material submitted by the defendant himself. The court will therefore deal with the questions as best it can from the motion as submitted, the arguments made by counsel and the other matters presented by the defendant.
The evidence in this case indicates that on June 16, 1972, a person, later identified as the defendant Tauro, appeared at the Pittsburgh offices of Merrill, Lynch, Pierce, Fenner and Smith, brokers, being a branch of a national brokerage house with main offices in New York City and presented five share certificates totalling 14,000 shares of Continental Airlines, Inc., a corporation listed on the New York Stock Exchange. There were three certificates for 3,000 shares each and two for 2,500 each. On this particular day, the stock was quoted at 21 3/8 on the New York Stock Exchange making a value in excess of $280,000. The certificates were made out in the name of Metropolitan Realty Associates which had no tax identification number. Apparently Mr. Michael, the resident manager who testified in the case, was somewhat suspicious. It was proposed that the certificates be sent in for transfer. The jury could also determine that the certificates were left there for sale, after transfer to street name had been completed. (See N.T. 23) Stock powers separate from the certificates were given defendant to have executed. These were later returned signed by Tauro and one Battiste who testified it was not his signature.
Several days later, it was discovered that the certificates had been stolen in blank from the United Bank of Denver, Colorado, the transfer agent. Officials and clerks of the transfer agent appeared at the trial and testified that the certificates had last been seen there in a cabinet which was kept locked on June 2, 1972. The signatures of various officials had been forged by the time they were presented to the broker in Pittsburgh two weeks later.
The defendant's partner in Metropolitan Realty Associates one Thomas Battiste, testified under a grant of immunity that the certificates had been received from a man named Anthony Todora who offered to pay them a fee of ten percent to negotiate the sale of the certificates. Battiste testified that he was suspicious and withdrew from the transaction. He testified that his signature on the transfers from Metropolitan Realty Associates had been forged. He, however, had driven the defendant Tauro to Merrill, Lynch's Office with the certificates. Agents of the Federal Bureau of Investigation from Washington, D.C. testified that the defendant's fingerprints were found on the certificates. The defendant, when confronted by the FBI Agents with the circumstances surrounding these certificates, gave certain explanations which upon investigation were found to be untrue. There were thus ample facts in the case to justify the jury finding that the defendant had received the certificates with guilty knowledge that they were recently stolen and that they had been left with the brokerage house for forwarding to New York City for sale and to Denver, Colorado, for transfer. After the certificates had been found to be stolen, they were forwarded to New York City.
It is the contention of the defendant's counsel that there was insufficient evidence in the case to justify a finding of value in excess of $5,000 as required by 18 U.S.C. § 2315
and there was also insufficient evidence to justify the jury in finding that the defendant had left the securities with the broker for the purpose of sale or transfer which required transportation to New York and Denver and therefore he was not in violation of 18 U.S.C. § 2314.
Even if he himself had not transported the certificates in interstate commerce from Pittsburgh, he had caused and participated in such transportation which made him a principal under 18 U.S.C. § 2.
The first contention of defendant's counsel is that there was no competent evidence that the securities were of a value of $5,000 or more as required by 18 U.S.C. § 2315.
On this question, the government offered the testimony of Arthur F. Nehrbass, Supervisor of the Division of Interstate Transportation of Stolen Goods for the Federal Bureau of Investigation. This witness described the market which existed for stolen securities and also described the value of various forms of stolen securities, particularly securities which had been stolen in blank, as here. He said that blank securities such as these were quite valuable (N.T. 174) and were worth fifteen to twenty percent of their face. In this case since they were admittedly of a value of $280,000 or more, he stated that in his opinion the value of these securities was $45,000. (N.T. 182).
It is obvious that when stock certificates such as these are stolen in blank, they can be filled in with anyone's name and for any amount of shares which might pass in the market. In the particular case, the certificates were filled in with amounts of 3,000 and 2,500 shares as heretofore indicated in this opinion and the evidence of the expert on the value of such securities was ...