The opinion of the court was delivered by: HUYETT
On February 27, 1974, we held a hearing to determine whether the defendant should be admitted to bail. In a separate memorandum filed March 1, 1974, we stated our reasons for denial of bail.
On March 1, 1974, we held a hearing to determine whether probable cause existed to find that the defendant violated the conditions of his probation. 378 F. Supp. 43. See Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). At the conclusion of this hearing, at which the defendant testified, we determined that probable cause existed to find that the defendant had violated the conditions of his probation.
A seven-day final violation of probation hearing was held from March 26, 1974 to April 4, 1974. Considerable evidence was introduced by both parties. Throughout all of these proceedings the defendant was represented by counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
In support of its motion for revocation of probation, the government sought to prove that the defendant had received approximately seventeen stolen Treasury checks knowing them to be stolen, and had caused these checks to be cashed through a bank savings account established by a Gregory Van Appline solely for the purpose of providing a method for cashing the checks. The government's evidence consisted primarily of the testimony of the two persons, Melvin Grover (also known as "Skeeter") and Clarence Jones (also known as "Bonehead"), involved in the breaking into of a United States mail box and the taking of the Treasury checks. The defendant was alleged to have made partial payment to Grover and Jones on the checks by cashing a check of the Parkside Tennis Club, of which the defendant was president, and giving $250 to Grover. Additional evidence incriminating the defendant consisted of the secretive taping of a conversation between the defendant and Grover on January 21, 1974. A surveillance device was placed on Grover's person during the conversation at the defendant's home. Other government evidence sought to corroborate the direct evidence offered by Jones, Grover and the tape recording. This evidence included the opinion of a voiceprint expert that the voice on the tape recording made January 21 was that of the defendant. The expert's opinion was based on spectrograms made from the January 21 tape recording and a known recording of the defendant's voice.
The defendant denied receiving any checks from Grover or Jones. The defendant did acknowledge that he offered to pay Grover money from the Parkside Tennis Club check. But this offer, which the defendant contended was never consummated, was for the purpose of payment towards securing the Delphonics musical group for a cabaret event planned by the Parkside Tennis Club for June, 1973. It was the defendant's evidence that Grover represented to Sample that Grover could obtain the Delphonics for the cabaret event at a price of $900. In addition, the defendant offered the testimony of six witnesses who stated that the defendant was not at home when the January 21, 1974, tape recording allegedly was made, but was at the Philadelphia Spectrum watching tennis matches from approximately 9 A.M. until 11 P.M. on January 21. Other defense evidence sought to discredit the government's witnesses.
Based on the evidence presented by the parties, we make the following findings of fact:
The DPA checks were sold to various persons and businesses. Jones and Grover encountered difficulty, however, in finding a person to purchase the Treasury checks.
In the presence of Jones and Jones' wife, Grover called the defendant on March 20, 1973, at the defendant's ticket agency on South 52nd Street. Following the call Jones and Grover went to the defendant's ticket agency. They offered to sell the defendant the Treasury checks. The defendant offered Grover and Jones one-third of the face value of the checks, but refused to pay Grover and Jones for the checks until they had been put through a bank account which process would take two weeks. Grover and Jones declined the defendant's offer and attempted to find another buyer for the checks.
Unable to find another buyer for the checks, Grover and Jones returned to the defendant's ticket agency on March 21, 1973. They left approximately 17 of the checks with the defendant with the understanding that the defendant would provide payment in the near future.
Jones and Grover returned to the ticket agency again on March 22, 1973, seeking cash from the proceeds of the checks in order to pursue their drug habit. The defendant indicated he could give them some cash now; he was waiting for his wife to bring a check. Mrs. Sample soon arrived with a Parkside Tennis Club check. The defendant asked Grover if he had any identification. Grover produced identification in the name of James Hamilton and the Parkside Tennis Club check was then made payable to a James Hamilton.
The Parkside Tennis Club check required the signatures of three club officers. The signature of Frank Blair, Treasurer, had already been obtained. The defendant as president of the club signed the check. The defendant and Grover then proceeded to the Fidelity Bank branch at 353 S. 24th Street. They approached Patricia Collins who was Secretary of the Parkside Tennis Club and a teller at the bank.
The defendant represented Grover to Collins as someone associated with the Delphonics. She envisioned a person associated with such a successful musical group as being more presentable than Grover. Collins thought Grover looked like a "junky". Nevertheless Collins signed the check and cashed it. She handed the $450 to Grover who gave the money to the defendant after leaving the bank. The defendant gave $250 of the money to Grover, and they then returned to the ticket agency where Grover rejoined Jones. Grover and Jones then split the $250.
The defendant's testimony that he thought Grover could obtain the Delphonics for $900 and that Grover had so represented is not credible. Grover never represented that he could obtain the Delphonics. George Franklin was a close friend of the defendant, and had been a "road runner" for the Delphonics. Franklin was more influential than anyone defendant knew in obtaining the Delphonics for the cabaret event. The defendant's testimony that he did not know George Franklin had been a "road runner" for the Delphonics and could be influential in obtaining a booking of the group at a reduced price is not credible.
There is no evidence as to how the checks the defendant received from Grover and Jones left the defendant's possession. The same check eventually, however, came into the possession of Gregory Van Appline. Appline opened an account at the First Pennsylvania Bank on March 28, 1973, with a cash deposit of $15. In quick succession deposits of the checks received by Sample from Grover and Jones were made by Appline or unknown persons at ...