366 F.

2d 853

UNITED STATES of America, Appellee,

v.
Robert EDWARDS, Max Jakob, John J. Lombardozzi and
Milton
Parness, Appellants.
No. 441, Docket 30345.

United States Court of Appeals Second Circuit.

Argued June 20, 1966.
Decided Sept. 12, 1966.

Edward S. Friedland, New York City, for appellant Robert Edwards.

Stuart A. Jackson, New York City (Royall, Koegel & Rogers, Norman
Ostrow, Guy C. Quinlan, New York City, on the brief), for appellant Max
Jakob.
Eugene Feldman, New York City (Jaffe & Feldman, Anne Gross
Feldman, New York City, on the brief), for appellant John J.
Lombardozzi.
Meredith Hemphill, Jr., New York City (Anthony F. Mara, New York
City, on the brief), for appellant Milton Parness.
Otto G. Obermaier, Asst. U.S. Atty. (Robert M. Morgenthau, U.S. Atty.
for Southern Dist. of New York, Michael W. Mitchell, John E. Sprizzo,
Asst. U.S. Atty., on the brief), for appellee.
Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.
KAUFMAN, Circuit Judge.

Robert Edwards, 1 Max Jakob, John Lombardozzi and Milton Parness appeal
from their convictions for violating the National Stolen Property Act,18 U.S.C.
2314, and conspiracy to violate 18 U.S.C. 2314, 2315 (18 U.S.C. 371). After a
three and one-half week trial before Judge Wyatt and a jury, sentences were

imposed ranging from imprisonment for one year and one day to four years.2
For the reasons set forth below, we affirm.
2

The indictment, filed on July 1, 1964, was in four counts. Count one charged 16
defendants, including the 4 appellants,3 and 6 co-conspirators not named as
defendants4 with participation in a conspiracy which encompassed the
transportation in interstate and foreign commerce of approximately $1,000,000.
in securities stolen from Bache & Co. (Bache), a New York brokerage concern.
Count two charged appellants and several other co-defendants with the
substantive violation, 18 U.S.C. 2314, of transporting stolen securities from
New York City to Newark, New Jersey. Counts three and four charged other
substantive violations of 18 U.S.C. 2314 involving transportation of stolen
securities from New York City to Miami, Florida and from New York City to
Denver, Colorado but, prior to and at trial, these counts were dismissed on the
government's motion.5

Much of the government's case rested on the testimony of defendants Dodge,

Pomeranz, Sessler, Gladstone and Markowitz6 who testified in its behalf.
Viewing, as we must on appeal, all the evidence presented and the reasonable
inferences flowing therefrom in the light most favorable to the government,
United States v. Kahn, 366 F.2d 259 (2d Cir. 1966); United States v. Robbins,
340 F.2d 684 (2d Cir. 1965); United States v. Kahaner,317 F.2d 459, 467 (2d
Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74,11 L.Ed.2d 65 (1963), a mosaic of
cunning and nefarious crime emerges. In order to avoid obfuscating the rather
involved facts, it is useful before presenting a detailed review of the evidence,
to summarize the government's case and to outline in skeleton form the manner
in which the alleged conspiracy operated and the way in which each appellant
was implicated in the substantive and conspiracy counts.

The first link in the alleged conspiracy chain was Gordon Tallman, an
employee of Bache, who, over a period of time, stole approximately $1,000,000
of 'bluechip' securities registered in the firm's name and turned them over to
Robert Dodge for distribution and ultimate sale. Dodge passed these securities
to Alan Pomeranz who, in turn, gave them to Robert Edwards. During June and
July 1962, Edwards distributed various quantities of the stock to Milton Parness
who brought Fred Sessler and Sheldon Lowe into the scheme hoping to utilize
their brokerage connections. However, they thought it advisable to deal with
Max Jakob, who also was familiar with the disposition of stock and who was in
need of funds for his ailing enterprise. Jakob turned for aid to William
Gladstone, his business associate and attorney, who obtained assistance from
his law partner, Bert Markowitz.

Devising a plan which required a so-called 'small man' and 'big man' to dispose
of the stock, Gladstone obtained approximately $60,000 of Bache purloined
stock which had been passed down the line from Tallman to Jakob. Gladstone
turned these securities over to Benjamin (Buddy) Clott, the 'small man,' who
attempted to sell them, with the aid of Isidore Gorlitsky, through the brokerage
facilities of Kesselman & Co. Gorlitsky was arrested, however, on July 2, 1962,
after the certificates which he had presented were identified as missing from
Bache.

Gladstone also utilized the services of John Lombardozzi, his 'big man,' to
distribute the stock. Lombardozzi's attempt, with the aid of an unidentified and
unapprehended co-defendant, 'Robert Francine,' to sell other purloined Bache
securities through the brokerage houses of L. P. Denenberg & Co. and S. P.
Levine & Co. failed on July 9 when it was discovered that Bache had impaired
the negotiability of the stock through the use of stop orders.

Despite these events, however, arrangements were made to transact a sale of a

large portion of the stolen stock on July 20 at the Robert Treat Hotel in
Newark, New Jersey. The prospective purchaser was secured by Clott and
identified as a buyer from the West Coast. Actually, he was an agent of the
Federal Bureau of Investigation acting under cover. The attempted sale in the
New Jersey hotel led to the apprehension of the participants in the scheme and
its eventual termination.

Because appellants vigorously challenge the sufficiency of the evidence

underlying their convictions, we proceed to expand and present in greater detail
the involved and complex and sometimes confusing facts.

The seeds of the alleged conspiracy were sown in November 1961 when
defendant Gordon Tallman met defendant Robert Dodge in the 'Tap Room' of
the Hotel Taft. In the course of their conversation, Tallman informed Dodge
that he had access to the vault of his employer-- a Wall Street brokerage house7
-- and could obtain for disposal undetected, virtually any amount of negotiable
securities he desired.

10

But, this meeting did not bear fruit immediately. It was not until April 1962
when Dodge met Tallman and co-conspirator, Francine Pomeranz,8 that Mrs.
Pomeranz suggested that Tallman steal some stock which Dodge could
hypothecate for their mutual profit. After waiting for Bache auditors to
complete a periodic audit, Tallman, approximately ten days later, appropriated a
certificate representing 100 shares of General Motors stock registered in the

name of one 'Smythe' and turned it over to Dodge. But, this prologue to the
alleged conspiracy ended in failure. Dodge was unable to negotiate the stock by
using it as collateral for a loan because he did not have proper identification;
ultimately, Dodge burned the certificate.
11

Undeterred by this initial lack of success, Francine suggested that her husband,
defendant Alan Pomeranz, was able to distribute stolen stock. It was agreed that
Dodge would act as a 'middle-man' so that Tallman and Pomeranz could avoid
dealing directly with one another.

12

In the latter part of May 1962, Pomeranz encountered appellant Robert

Edwards outside the Stage Delicatessen, a restaurant in Manhattan, and asked
Edwards if he would be interested in participating in the disposal of some stolen
securities. After learning that as much as $200,000 to $500,000 worth of
certificates might be involved, Edwards counseled that it was imprudent to
continue the conversation on a public street and suggested that Pomeranz
contact him in a few days.

13

Accordingly, in late May or early June, Pomeranz called Edwards and was
invited to the latter's Central Park West apartment. Edwards told Pomeranz he
was interested in the proposed transaction and they proceeded to discuss its
additional aspects. Indeed, Edwards stated that he had already contacted
someone in connection with the deal. Edwards went on to suggest that
certificates registered in a street name be obtained, and Pomeranz observed that
since the stock was to be acquired from a New York brokerage house, it would
be advisable to dispose of the stock away from New York. Edwards and
Pomeranz also agreed to 'make it a one-shot deal and take as much as (they)
could get.' Estimating that they could realize 15%-20% of face value, they
decided to obtain $1,000,000 worth of 'blue-chip' securities; to make detection
of their plan difficult, they agreed not to disclose their respective contacts to
one another.

14

Meanwhile and during this same period, appellant Milton Parness met
defendant Fred Sessler at the Debonair Restaurant in Manhattan and discussed
the possibility of employing Sessler's brokerage firm, Fred F. Sessler & Co., to
dispose of the stolen securities. After speaking to his partner, defendant
Sheldon Lowe, however, Sessler advised Parness that his firm was inadequate
for the task and suggested that arrangements with appellant Max Jakob could
be made. Sessler also noted that stolen securities registered in a 'street name' as
distinguished from an individual's name would be readily negotiable.9

15

The day following his meeting with Edwards, Pomeranz phoned Tallman and

15

The day following his meeting with Edwards, Pomeranz phoned Tallman and
described the 'one-shot' nature of the proposed transaction. Tallman indicated
that he would have no difficulty appropriating $1,000,000 of stock registered in
a street name and was willing to accept 5% of the face value of the securities as
his fee. When Tallman inquired as to whether 'front money'-- a deposit-- would
be forthcoming, Pomeranz noted that he assumed so but that the matter had not
yet been determined.

16

At a subsequent meeting in Edwards' apartment, Edwards told Pomeranz that

he had to be sure the stock was not counterfeit and, therefore, he and his
contacts wanted to examine a sample. Accordingly, Pomeranz spoke to his wife,
directed her to tell Dodge to obtain a sample and added that, when Dodge was
ready, he would meet him at the Mermaid Room of the Park Sheraton Hotel.
Mrs. Pomeranz stated that Dodge would be wearing one of Pomeranz' suits to
facilitate identification since Dodge and Pomeranz did not know one another.

17

The following day, June 5, Tallman met Dodge at the Coachman Bar on
William Street in Manhattan and gave him an envelope containing a single
certificate representing 100 shares of General Motors stock registered in the
street name of Bache & Co. According to plan, Dodge proceeded to the
Mermaid Room of the Park Sheraton Hotel and met with Pomeranz who was
seated at the bar. After a few minutes, Pomeranz walked to the men's room and
Dodge followed shortly. There, Dodge handed Pomeranz the envelope
containing the certificate of 100 shares of General Motors stock which Tallman
had earlier appropriated and given him. When Dodge inquired about front
money, Pomeranz responded that he did not know if any would be forthcoming.
Dodge and Pomeranz also agreed that since they were now known to each
other they would deal directly thereafter, and that Mrs. Pomeranz would no
longer serve as their intermediary; accordingly, Dodge gave Pomeranz the
phone number of Kennedy's Bar in the Bronx where he could be reached.

18

Pomeranz delivered the sample to Edwards at his apartment; Edwards stated

that it would be shown to his contact the following day. Edwards also reported
that no understanding had yet been reached on his and Pomeranz' share of the
proceeds but he still believed they would receive between 15%-20%.

19

The sample was quickly passed down the line from one to another; at a meeting
in Parness' car between Parness and Sessler, Parness took the 100 share
certificate from the trunk of his car and showed it to Sessler. Parness explained
that this was a sample and that the other securities available were similar in
form. Sessler indicated his willingness, with Lowe, to participate in the
distribution of the stock. Edwards later reported to Pomeranz that the sample

had been shown to his contacts and that, in a few days, he would let Pomeranz
know when he required delivery of the bulk of the stock. Soon thereafter,
Pomeranz told Dodge his 'man thought it was great and that he would need at
least a million dollars worth.'
20

Dodge relayed this information to Tallman and on June 8, at 9:00 A.M.,

Tallman phoned Dodge, declared that he was 'all ready' and asked Dodge if he
could 'get it from him that day.' At first, Dodge suggested that they meet again
at the Coachman Bar; however, a different bar on William Street was finally
agreed upon as the meeting place. At about noon, Tallman and Dodge entered
the men's room of the bar where Tallman removed from the inside of his shirt a
manila envelope which he handed to Dodge, who, in turn, tucked it into his
trousers. Tallman suggesed that Dodge compile a list of the certificate numbers
'because they are our only protection.'

21

After leaving, Dodge immediately proceeded to his 'hangout' at Kennedy's Bar

in the Bronx. In the men's room there, he opened the manila envelope and
counted approximately seventy 100 share certificates of such 'blue-chip'
securities as A.T. & T., I.B.M., G.M., DuPont and Standard Oil of New Jersey,
all in the name of Bache. As instructed, he compiled a list of the certificate
numbers and then placed the securities in a cigar box which he secreted in the
trunk of Mrs. Kennedy's automobile.

22

Meanwhile, Sessler was making arrangements for the disposition of the stock.
Having determined that his organization, an over-the-counter firm, could not
undertake to sell securities listed on the New York Stock Exchange, Sessler, at
Lowe's suggestion, contacted appellant Max Jakob with whom Sessler had
previous business dealings. Jakob and defendant William Gladstone were
partners in Wilco Commercial Corp. (Wilco), a business engaged in interim
financing and the sale and trading of put and call options. Jakob visited Sessler's
office where Sessler explained that there was a large quantity of securities
available which were going to be taken by a partner at Bache who needed the
money to pay off his gambling losses. Sessler also noted that, because of the
partner's position, the loss would not be discovered for some time. While Jakob
expressed interest, he noted that until he had reviewed the proposal with his
partner, Gladstone, he could not commit himself.

23

Jakob did not delay in discussing the proposed transaction with Gladstone.10 He
noted that the securities could be utilized to rescue Wilco from financial straits
caused by the general decline of the stock market in the Spring of 1962.11
Gladstone, who was deeply in debt to Jakob, pointed out that they ran the risk
of criminal sanctions if their participation was discovered; however, when

Jakob stressed Wilco's need for funds and indicated his intention to become
involved, Gladstone decided to go along.
24

Jakob, Gladstone and Sessler thereafter met several times to discuss what each
would realize from the transaction. Jakob and Gladstone indicated that they
would distribute and sell the securities for 50% of face value. Sessler protested,
however, stating that this would be an impossible arrangement since he was
paying 55% to obtain the stock. After further negotiation, it was finally agreed
that Sessler would receive 5% while Jakob and Gladstone would obtain the
remaining 40%. Jakob told Sessler that since they were dealing with large
amounts, percentages were not all that important and besides, '* * * I have good
connections in Europe and elsewhere, and don't be so selfish, and we can make
some money not only today, but it the future.'

25

Between June 8 and June 16, Pomeranz and Edwards were in communication
with each other concerning the delivery of the stock, and, on Saturday, June 16,
Edwards told Pomeranz that he was ready. Pomeranz relayed this information
to Dodge who borrowed Mrs. Kennedy's car and met Pomeranz at 89th Street
and Columbus Avenue in Manhattan. Pomeranz explained that although the
front money matter had not been settled, his contacts were ready 'to start doing
business.' The two drove to Edwards' apartment where Dodge waited in the car
while Pomeranz went inside. He returned shortly, however, noting that
negotiations concerning front money were still in progress and that they should
wait for a while before delivering the stock. Accordingly, Pomeranz and Dodge
went to a drugstore and after several phone calls to Edwards, Pomeranz told
Dodge that no front money was available but that if they turned over the stock,
they would receive $5,000 every 4 business days until their share of the
proceeds had been paid. Dodge reluctantly agreed, removed the cigar box
containing the stock from the trunk of Mrs. Kennedy's car and gave it to
Pomeranz who wrapped it in a newspaper. Pomeranz brought this crudely
concealed package to Edwards' apartment where it was opened revealing
$1,005,000 worth of securities registered in the name of Bache. Because front
money had not been furnished, Edwards and Pomeranz decided that only
$100,000 should be turned over to Edwards' contact. Dodge phoned Tallman to
report what had transpired.

26

Several days later, Parness gave Sessler three 100 share certificates of I.B.M.,
DuPont and A.T. & T. stock registered in the name of Bache. Sessler showed
them to Jakob who remarked that 'they look like diamonds'; ultimately, Sessler
turned this stock over to Jakob.12 At a meeting in Jakob's apartment, Gladstone
outlined to Jakob and Sessler his proposal to distribute the stock through two
channels: the plan called for a 'small man,' living in New Jersey, to deal with

brokers and banks and a 'big man' to efficaciously dispose of large amounts.
Gladstone's 'small man' was co-conspirator Benjamin Clott and his 'big man'
was appellant John Lombardozzi. The plan was accepted and shortly thereafter
Gladstone and Markowitz discussed the proposal with Clott who was anxious
to participate. Toward the end of June Jakob gave Gladstone the three
certificates he had received from Sessler, and Gladstone surreptitiously
delivered them by ostensibly abandoning the securities-- hidden in a
newspaper-- in a phone booth to be retrieved by Clott who was close by.
27

Lombardozzi was brought into the scheme by Markowitz who had been his
lawyer at one time. Lombardozzi was informed by Gladstone at a meeting at
the law offices of Gladstone and Markowitz of the availability of 'blue-chip'
stock registered in Bache's name. Thereafter, he witnessed Gladstone give
Sessler $10,000 cash, in an automobile in which Gladstone, Lombardozzi and
Sessler were present, for the purpose of acquiring $100,000 worth of stock. For
some undisclosed reason, Sessler was unable to obtain the stock from Parness
and thus returned the $10,000 to Gladstone who, in turn, gave it to
Lombardozzi. A day or two later, however, a parcel of the appropriated stock
was acquired in the following manner: Sessler, Gladstone and Lombardozzi
drove to Lexington Avenue and 57th Street where Sessler met Parness and
defendant Martin Carbone in the Mayflower Restaurant. Parness told Sessler
the stock would be arriving shortly. After a brief discussion, Sessler, Parness
and Carbone went outside; Carbone crossed the street and talked briefly with
defendant George Martinelli who handed him a newspaper. Simultaneously,
Sessler gave Parness the $10,000, which had previously been given to him by
Gladstone, and then crossed the street to meet Carbone in a drugstore. Carbone
turned the newspaper over to Sessler; secreted in its folds were securities
registered in the name of Bache & Co. Sessler then proceeded to the
automobile in which Gladstone and Lombardozzi were waiting and gave the
newspaper containing the stock to Gladstone who passed it to Lombardozzi.

28

The $10,000 received by Parness was not distributed in one installment. After
Pomeranz had spoken to Edwards several times concerning payment, Edwards
reported that he had received $2,000 to show 'good faith.' Pomeranz, who had
expected to receive $5,000 to give to Dodge and Tallman, expressed
disappointment but nevertheless took the $2,000. After explaining to Dodge
that he was without funds and was for that reason keeping $100 for himself,
Pomeranz gave him the balance. Dodge retained $900 and delivered the
remaining $1,000 to Tallman.

29

During the last week in June, Edwards told Pomeranz that he had received
$8,000 more but had given $100 to the courier who had delivered it. Edwards

and Pomeranz divided the remaining $7,900, Edwards keeping $2,500 and
Pomeranz receiving $2,400 plus an additional $3,000 which he later gave to
Dodge to be split with Tallman. Pomeranz indicated to Edwards his
dissatisfaction with not having received more money in view of Edwards'
distribution of an additional $100,000 of stock. Edwards consoled Pomeranz by
stating that he expected to receive their full 15%-20% of the proceeds and that
his people might well pay an amount 'over and above our percentage and but
another three, four or a half million dollars worth of stock.'
30

On June 28, the first 'outside' disposal of the stock was attempted. Isidore
Gorlitsky, working for Clott and posing under the pseudonym, 'Edward Adler,'
met with one Marvin Tabak, a registered representative employed by the
brokerage house of Kesselman & Co. Gorlitsky, claiming to have been sent by
an anonymous mutual friend and to have $1,000,000 worth of securities to sell,
produced three 100 share certificates of I.B.M., A.T. & T. and DuPont stock,
registered in the name of Bache and valued at approximately $63,000, which he
asked Tabak to sell. Tabak refused unless adequate proof of ownership was
submitted and the unidentified friend disclosed. At Gorlitsky's request, Tabak
met Gorlitsky at 6 P.M. of the same day at a diner, on the Belt Parkway, for
further discussions concerning the proposed sale. Gorlitsky offered Tabak a
'bonus' of $500 above his regular commission for each $100,000 of stock sold
but Tabak replied, 'I don't have to take any extra money. We will sell (them) * *
* for you if the stocks are legitimate.'

31

The following day, Gorlitsky gave Tabak the three certificates in exchange for
appropriate receipts. Tabak explained that Gorlitsky should return four business
days later on July 2 to collect the proceeds of the sale provided he would
present proof of ownership. In the course of their meetings, however, Tabak
had become suspicious and, as soon as Gorlitsky departed, he asked the office
manager to check with Bache concerning these certificates.

32

Gorlitsky immediately passed the word that proof of ownership in the form of
completed transfer slips was needed to consummate the sale. Clott called
Gladstone, reported Gorlitsky's progress and asked what could be done to
obtain the appropriate documents. Gladstone relayed this information to Jakob
and then to Sessler who phoned Parness. Parness apparently conveyed this
information to Edwards because upon Pomeranz' inquiry about additional
payments, Edwards replied that the proceeds from the sale could not be
collected until transfer slips were presented. Pomeranz accordingly contacted
Dodge who in turn called Tallman at Bache and described the plight they were
in. Tallman, replying that it was 'no problem,' arranged to meet Dodge the
following day; at that time he delivered a packet of blank Bache & Co. transfer

slips. These were passed along the line from Dodge to Pomeranz to Edwards to
Parness to Sessler. In the presence of Sessler, Gladstone and Markowitz, Lowe
typed identification and other relevant data on the slips, and Gladstone
delivered them to Clott. On July 2, Gorlitsky presented the slips to Tabak at
Kesselman & Co. By this time, however, the police, as a result of investigating
at Bache, arrested Gorlitsky.
33

Gorlitsky's arrest produced a wave of deep apprehension all along the alleged
conspiracy chain. Clott called Gladstone and stated that there was 'beaucoup
trouble' because 'his man' had been arrested while attempting to negotiate the
securities. Gladstone reported this information to Sessler, who had come to
Gladstone's office on other business, but Gladstone assured him that bail and
counsel would be furnished. That evening, Gladstone informed Jakob of
Gorlitsky's arrest and that Bache had apparently discovered that some securities
were stolen.

34

Tallman quickly became aware that something had gone awry. On July 2, he
called Dodge from Bache to report that the police were 'all over the place' and
that he 'heard on the grapevine that somebody had been arrested regarding this
stock.' Tallman counseled caution should Dodge seek to communicate with
Pomeranz. Later that day, however, Pomeranz called Dodge and when Dodge
related what had transpired, Pomeranz stated that he had already been informed
of the arrest and that there was little reason for excessive concern since the
person who had been apprehended was a mere 'flunky, * * * a bookie from
Florida,' who 'didn't know a thing.'

35

Parness also pressed Sessler for information as to what gone wrong. Sessler
played down the arrest, assuring Parness that while it was unfortunate, it was
not a serious setback.

36

Edwards' anxiety over the arrest was not easily assuaged. In his presence,
Pomeranz called Dodge and asked whether Tallman could be setting 'traps'
since people were being arrested 'all over the place.' When Dodge assured
Pomeranz that Tallman was not cooperating with the authorities, Pomeranz
replied, 'Well, you tell that to my boy Bobby,' and put Edwards on the phone
for further reassurance.

37

Despite Gorlitsky's arrest, money continued to be distributed among the

participants in the scheme. On July 5, Edwards told Pomeranz that he had met
his contact and received an additional $8,000. Edwards retained $2,500 and
gave the balance to Pomeranz who kept $2,500 for himself and later delivered

the remaining $3,000 to Dodge. Pomeranz pointed out that although

approximately $200,000 worth of stock had been distributed, they had received
only $18,000 which was $12,000 less than their 15% share; Edwards replied
that the balance would be forthcoming shortly.
38

During the period that Gorlitsky had been attempting to dispose of the stock
allocated to Clott, Lombardozzi, the socalled 'big man,' working through Robert
Francine, attempted to dispose of securities amounting to $100,000 which he
had received from Sessler. On June 28, Lombardozzi asked Herman Weinstein,
a securities trader at L. P. Denenberg & Co., if he could sell 'blue-chip' stock
registered in a street name. Weinstein, not yet qualified as a registered
representative, suggested that his employer, Lee Denenberg, could do so.
Lombardozzi advised Weinstein that a friend of his would contact him the
following day.

39

As scheduled, the next day Robert Francine, having introduced himself as a

friend of 'John Lombardo,' came to Weinstein's office and upon inquiry by
Francine was told by Weinstein that proceeds from the sale of stock could not
be collected until four business days after sale. Francine then produced three
100 share certificates of Polaroid, DuPont and General Motors stock registered
in the street name of Bache which was turned over to Weinstein and for which
he was given a receipt. After checking the serial number of the DuPont
certificate with the clearing house and ascertaining that no stops had been
issued against it, Denenberg sold the three certificates. On July 3, Denenberg
traded an additional 100 share certificate of DuPont in Francine's behalf. At
Weinstein's suggestion, Francine also utilized the offices of S. P. Levine & Co.,
a brokerage firm, to dispose of more stock. Agreeing to a 'cash trade' resulting
in payment within 24 hours at a penalty of from 1/8 to 1/4 a point per share,
Francine sold through the Levine offices 200 shares of G.M., A.T. & T. and
Standard Oil of New Jersey registered in the name of Bache for approximately
$41,000.

40

On July 5, Weinstein gave Francine two checks, drawn on the account of L. P.

Denenberg & Co., to cover the proceeds of the stock Denenberg sold in
Francine's behalf. Francine was told, however, that the checks could not be
cashed for 3 additional business days.13 The following day, Lombardozzi gave
Sessler the two Denenberg checks and suggested that they be used to purchase
additional stock. After discussing this proposal with Parness, who insisted upon
receiving cash, Sessler returned the checks to Lombardozzi. Even upon
speaking directly to Lombardozzi,14 Parness remained adamant in demanding
cash. That evening, when Pomeranz visited Edwards' apartment, he was shown
the two Denenberg checks. Upon Pomeranz' inquiry concerning their remaining

$12,000 share, Edwards explained that the checks would be cashed in a few
days and they would then be paid.
41

On July 9, Francine received a check from S. P. Levine & Co. for

approximately $30,000 in partial payment for the stock the Levine firm sold at
his request. But, when Francine learned from Levine's bank that there were
insufficient funds to reduce the check to cash, he angrily returned to Levine's
office where, in an attempt to placate him, he was offered two checks-- one for
$9,000 and the other for $21,000-- with the suggestion that the smaller could be
cashed immediately. Francine flung the checks on the table and demanded cash
or a certified check. When neither was forthcoming he left in anger. A short
while later, Weinstein told Levine that he received a call from Denenberg, who
had discovered a problem with the stock, and recommended that Levine 'hold
up on the trade.'

42

Later that day, Edwards informed Pomeranz that a stop had been placed on the
certificates and that if the remaining $850,000 of stock was not turned over to
his associates without payment, he would be 'in the jackpot.' Edwards pointed
out that his contacts believed they had been betrayed and would hold him
responsible if the additional stock was not immediately forthcoming.
Concerned over Edwards' Welfare, Pomeranz consented telling Edwards that
under these circumstances 'money (becomes) meaningless.' Edwards observed
that if the stock was surrendered, he and Pomeranz might still receive 10% of
its face value.

43

Accordingly, Edwards turned over the remaining securities and, in the middle
of July, Clott informed Gladstone that he found a customer-- 'a big buyer on the
West Coast'-- who was interested in purchasing the Bache certificates which
had not yet been reported as missing or stolen. After conferring with Jakob,
Gladstone obtained from Sessler a list of the numbers of those certificates
which were available for sale. This list, designed to aid the 'West Coast' buyer
in determining which securities he wished to purchase, was delivered by
Gladstone to Clott. Gladstone then reported to Jakob that he had obtained the
list of securities and delivered it to Clott. Jakob expressed pessimism over
making any money on the transaction but noted that in view of Wilco's critical
financial situation, anything 'would be helpful at this point.'

44

Initially, it was arranged that Clott's buyer would be met at Idlewild Airport in
New York (now Kennedy International Airport), but the plans were changed
and the transfer of the stock was fixed for July 20 at the Robert Treat Hotel in
Newark, New Jersey. to the other participants in the scheme, to the other
participantsin the scheme, Clott had begun cooperating with the F.B.I. and his

'customer' was actually Special Agent Ralph Desena using the pseudonym
'Ralph Cava.' On July 20, Desena occupied Room 911 in the Robert Treat
Hotel; in midafternoon, Clott accompanied by Parness, Lombardozzi and
Martinelli entered the room and, after introductions, negotiations commenced.
Desena stated that he was given to understand that he was to pay 40% of face
value for those certificates which had not neen reported as missing and 10% for
the others. Parness stated that the deal was only for 'clean' certificates for which
Desena was to pay 35%. Parness noted that the 'other stuff' could not be sold
for 10% since more than that was paid for it. Deferring discussion on the
securities reported as missing, Parness told Desena that he was prepared to sell
two I.B.M., four A.T. & T., five General Motors and seven Standard Oil
certificates, each representing 100 shares. Desena checked Parness' calculations
and agreed that 35% of the face value of these securities came to $61,836 based
on the prices listed in that morning's New York Times. When Desena indicated
willingness to make payment, Parness left the room to gather the stock.
Lombardozzi then asked Desena about his interest in the certificates which
were listed as missing and noted that they could be obtained in an hour and a
half. When Desena equivocated, Lombardozzi explained that 'the other stuff is
good, it's just hot' and added that 'unfortunately something happened to us'
which led to the discovery by Bache of the missing securities.
45

At this point, Desena answered a knock on the door. It was Carbone who asked
for Martinelli and handed him a newspaper in which an envelope had been
secreted. Opening the envelope, Martinelli removed 18 certificates and handed
them to Desena who, after inspecting them to assure himself that they were the
stolen Bache securities, left the room explaining that he would return shortly
with the money.

46

A few moments after Desena left, other F.B.I. agents entered Room 911,
arrested Lombardozzi and Martinelli and found the 18 certificates under a
pillow as well as a list published by the National Association of Securities
Dealers (NASD) containing the numbers of the certificates reported as stolen
from Bache. It is interesting that none of the certificates found in the room were
described on the NASD list. Edwards, Jakob and Parness were apprehended
subsequently.
I.

47

We shall first consider those contentions raised by appellants which affect all or
several of them. We shall then discuss additional arguments specifically raised
on behalf of particular defendants.

SUFFICIENCY OF THE EVIDENCE

48

The above detailed statement of the facts has been necessitated by the vigorous
attack made upon the evidence and the sufficiency thereof.

49

Appellants raise the not unfamiliar contention that the evidence demonstrated
the existence, not of a single conspiracy, but of at least two. It is argued that the
first conspiracy was composed of Tallman, Dodge, Pomeranz and Edwards
who were concerned with appropriating the stock and its initial distribution; the
second conspiracy, it is contended, was comprised of Parness, Sessler, Jakob,
Gladstone, Lombardozzi and others who participated in subsequent distribution
efforts. Appellants press upon us that there was no proof of any link between
the two groups.

50

The evidence, however, amply refutes this contention and discloses the classic
single 'chain' conspiracy. The circulation of the certificate for 100 shares of
General Motors stock as a 'sample,' the identity between the numbers of the
certificates reported taken from Bache and those offered for sale at the New
York brokerage houses and in New Jersey; the passing along the line of the
Bache and Co. transfer slips and the Denenberg checks, the interconnection and
linkage in one form or another of all the participants in the disposal of the
securities stolen by Tallman from Bache, provided sufficient evidence of a
single conspiracy to justify submission to the jury of the question as to whether
there was one overall scheme. The trial judge's instruction in this connection
properly focused the jury's consideration of this question and the jury's verdict
determining that one overall conspiracy to transport securities in interstate
commerce cannot be faulted.

51

The evidence also refutes Edwards' contention that there was no proof that he
ever dealt with Parness. The jury could have inferred these dealings from
incidents such as that testified to; for example, that Pomeranz delivered the
Bache & Co. transfer slips to Edwards which ultimately ended up in the
possession of Parness who subsequently turned them over to Sessler. And, it is
black letter law that all participants in a conspiracy need not know each other;
all that is necessary is that each know that 'it has a 'scope' and that for its
success it requires an organization wider than may be disclosed by his personal
participation.' United States v. Agueci, 310 F.2d 817, 827, 99 A.L.R.2d 478 (2d
Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963);
United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863,
80 S.Ct. 123, 4 L.Ed.2d 102 (1959). The 'chain' type of conspiracy has as its
purpose the disposal of the tainted commodity into the hands of the ultimate
purchaser. See United States v. Agueci, supra.

52

Jakob asserts that there was insufficient proof that the securities were actually
stolen or that he possessed knowledge of this. The surreptitious and furtive
transfers of the stock from Tallman to Dodge and from Dodge to Pomeranz in
bars and lavatories for a fraction of its face value and the other unorthodox
methods utilized in its disposition are ample evidence from which the jury
could draw an inference of theft. Moreover, Gladstone's conversations and
activities with Jakob and his testimony that he warned Jakob of possible
criminal sanctions if their participation in the disposal plan was discovered
leaves little room for argument that the jury could not have drawn the inference
that Jakob was fully aware that he was dealing in stolen stock.

53

Lombardozzi also raises the question that the evidence was not sufficient to
show that he was a knowing participant in the conspiracy. We need not linger
long over this contention for our recital of the evidence clearly demonstrates
that there was ample support for the verdict that he was a knowing participant
in the scheme.
ENTRAPMENT

54

Jakob and Lombardozzi maintain that their convictions should be reversed

because the commission of the offenses was the result of entrapment by the
government working through Clott and Special Agent Desena. The crux of their
argument, as we understand it, is that the government added the interstate
element to the offenses charged by arbitrarily switching the transaction with
Desena from Idlewild Airport in New York to the Robert Treat Hotel in New
Jersey.

55

We find this argument unpersuasive. Entrapment results from overzealous

activity by government agents designed to incite an innocent man to crime. But,
'artifice and stratagem may be employed to catch those engaged in criminal
enterprises.' Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77
L.Ed. 413 (1932). In the present case, the government did no more than afford
the opportunity and facilities for the commission of the offense charged; the
participants were awaiting 'any propitious opportunity,' see United States v.
White, 223 F.2d 674, 676 (2d Cir.), cert. denied, 350 U.S. 888, 76 S.Ct. 143,
100 L.Ed. 782 (1955); United States v. Riley, 363 F.2d 955 (2d Cir. 1966), and
never considered themselves limited by New York State's boundaries. Indeed,
when the scheme was in its early stages, Pomeranz suggested to Edwards that
the stock should be disposed of outside New York, and Jakob and Lombardozzi
mentioned Europe as a possible place for sale. Moreover, it is significant that
no evidence on the question of entrapment was introduced at trial, the issue was
not adverted to in any of the defense summations and no instructions to the jury

on the subject were requested. Indeed, the only and solitary mention of
entrapment occurred immediately prior to the court's charge when Lombardozzi
moved for acquittal on this ground. In view of the absence of any evidence of
entrapment, Judge Wyatt correctly denied this motion.
56

RECORDING OF THE CONVERSATIONS AT THE ROBERT TREAT

HOTEL

57

It is urged that the government invaded the constitutional rights of

Lombardozzi and Parness under the First, Fourth and Fifth Amendments, by
recording their discussions at the Robert Treat Hotel, concerning the sale of the
Bache securities. While this general area of law is once again sub jedice in the
Supreme Court, see United States v. Osborn, 350 F.2d 497 (6th Cir. 1965), cert.
granted, 382 U.S. 1023, 86 S.Ct. 644, 15 L.Ed.2d 538 (1966), we believe that
on the facts and circumstances presented here, appellants' argument lacks merit.
The F.R.I. rented Rooms 911 and 912 at the Robert Treat;15 appellants were
invitees who had no property interest in the premises and, more significantly,
were there voluntarily to further their own purposes. While the Supreme Court
has not been undivided on this question, it has consistently held that the
prohibition against unreasonable searches and seizures does not prevent the
making and use of recordings of conversations between government agents and
persons suspected of criminal activity. Lopez v. United States, 373 U.S. 427, 83
S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72
S.Ct. 967, 96 L.Ed. 1270 (1952); Goldman v. United States, 316 U.S. 129, 62
S.Ct. 993, 86 .l.Ed. 1322 (1942). And, in dealing with a case quite similar to
that presented here, we observed that 'the planting of microphones in (a) hotel
room with (the) consent (of its occupant does not amount) to trespass within the
definition of the majority in On Lee, or approach the physical invasion of
another dwelling without consent perpetrated with the spike mike whose fruits
were excluded in Silverman v. United States, 365 U.S. 505 (81 S.Ct. 679, 5
L.Ed.2d 734) (1961).' United States v. Kabot, 295 F.2d 848, 854 (2d Cir. 1961),
cert. denied, 369 U.S. 803, 82 S.Ct. 641, 7 L.Ed.2d 550 (1962). Moreover, we
note that Agent Desena's testimony describing the conversations in which he
participated with Lombardozzi and Parness was admitted without objection.
THE CHARGE

58

Appellants challenge the judge's charge in several respects.

59

Jakob urges that the court became an advocate and incorrectly marshalled the
evidence and weighted it in favor of the prosecution. We have carefully

reviewed the court's instructions and find this contention without merit. Since
most of the trial was occupied with the presentation of the government's case, it
was to be expected that the judge would devote more time to the government's
case in summarizing the evidence. See United States v. Dardi, 330 F.2d 316,
330 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964);
United States v. Kahaner, supra, 317 F.2d at 476. Moreover, Judge Wyatt gave
the usual admonition to the jury that its recollection of the facts and not his was
controlling, that it must consider all of the evidence and not merely that
mentioned by the court, and that the jury was the sole judge of the facts. In
addition, just before submitting the case to the jury, Judge Wyatt instructed
them:
60

* * * I could not possibly, in attempting to summarize the contentions of the

parties mention everything. * * * You are to draw no conclutions from my
failure to include something in this summation.

61

We find no error in the judge's marshalling of the evidence. See United States
v. Bentvena, 319 F.2d 916, 940 n. 14 (2d Cir.), cert. denied (Ormento v. U.S.,
Di Pietro v. U.S., Fernando v. U.S., Panico v. U.S., Galante v. U.S., Loicano v.
U.S., Mancino v. U.S., Sciremammano v. U.S., Mirra v. U.S.), 375 U.S. 940, 84
S.Ct. 345, 346, 353, 354, 355, 360, 11 L.Ed.2d 271, 272 (1963). Indeed, the
judge displayed an awareness and sensitivity to the management problems
inherent in multi-defendant conspiracy cases. See United States v. Agueci,
supra, 310 F.2d at 840.

62

Jakob also argues that the charge was deficient in failing to state that each
participant in the conspiracy must have had knowledge that the conspiracy
involved an element of interstate or foreign transportation. We find the
instructions on this point to be unmistakably clear and correct. Judge Wyatt
instructed the jury that it could convict only if it found beyond a reasonable
doubt that the conspiracy embraced the concept that the stolen securities 'shall
cross state lines or move to foreign countries.' The judge added that the jury
was duty bound to acquit unless it found that the conspiracy comprehended
'either expressly or by implication, the transportation of the stolen certificates in
interstate or foreign commerce.' And, stressing the requirement of knowledge,
the court added:

63

So it must be shown beyond a reasonable doubt that the understanding of the

conspirators, either expressly or by implication, was that the stolen certificates
would move in interstate or foreign commerce.

64

Finally, the court noted that each defendant 'must be found to have knowingly

64

Finally, the court noted that each defendant 'must be found to have knowingly
associated himself with the conspiracy.'

65

We also find no error in that portion of the charge which instructed on the
relationship between the conspiracy and substantive counts. The court charged
that a defendant could be convicted on the substantive count of transporting
stolen securities in interstate commerce (Count Two) if the jury found that the
substantive offense was committed in furtherance of the conspiracy and that, at
the time of the commission of the substantive offense, the particular defendant
was a member of the conspiracy. This instruction was based upon and correctly
reflects the teaching of Pinkerton v. United States,328 U.S. 640, 66 S.Ct. 1180,
90 L.Ed. 1489 (1946). Jakob now urges, for the first time, that the court should
have added that 'the substantive offense must have been committed in
furtherance of the comspiracy and not merely as an unforeseen part of the
ramifications of the plan', citing United States v. Barrow, 229 F.Supp. 722, 733
(E.D.Pa.1964). While this addition would not have detracted from or confused
the charge, Jakob did request such an instruction and the district judge cannot
be faulted for not utilizing additional words suggested by those having the
benefit of afterthought.

66

Moreover, we see no merit in the criticism of the court's instruction on

reasonable doubt; as given, it was similar to that approved in Holland v. United
States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) and United States
v. Heap, 345 F.2d 170, 171 (2d Cir. 1965). Nor was it prejudicial error for the
court to set forth the reasons why Congress regarded conspiracy as a crime
meriting separate treatment from substantive offenses. While we see little
purpose in advising the jury of the congressional intent in enacting the statute,
the court did little more than paraphrase the language of United States v.
Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915), quoted with
approval in Pinkerton v. United States, supra, 328 U.S. at 644, 66 S.Ct. 1180,
concerning the dangers of conspiracy.

67

ADDITIONAL POINTS AFFECTING MORE THAN ONE APPELLANT

68

Further issues are raised which concern several or all of the appellants; they can
conveniently be considered at this juncture.

69

It is urged that the fairness of the trial was vitiated when the government called
Gordon Tallman to the stand knowing that he would refuse to testify and would
claim the privilege against self-incrimination.16 It is clear that the government
suspected that Tallman might invoke the Fifth Amendment privilege; indeed, it
had arranged for a Legal Aid attorney to be present to advise him and had

submitted a memorandum to the court contending that the privilege was

unavailable to Tallman on the ground that he was immune from further
prosecution as the result of his plea of guilty to a federal conspiracy indictment
and his conviction on a related state charge. We are convinced that the
government called Tallman in good faith reasonably expecting the district judge
to order him to testify.17 Thus, we are not dealing with a case where the
prosecution made 'a conscious and flagrant attempt to build its case out of
inferences arising from use of testimonial privilege,' see Namet v. United
States, 373 U.S. 179, 186, 83, S.Ct. 1151, 10 L.Ed.2d 278 (1963). Moreover, in
contrast to united States v. Maloney, 262 F.2d 535 (2d Cir. 1959), the
government made no reference to Tallman's failure to testify; indeed, it
requested that the jury be excused as soon as Tallman was sworn. And, the
judge's instruction-- not present in Maloney-- removed any possible inference
against the defense which the jury might have drawn from Tallman's refusal to
testify.18 See United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957).
70

Nor are we persuaded that the appellants were prejudiced by the guilty plea of
co-defendant Leo I. Sagal on the first day of trial. Sagal entered his plea in the
absence of the jury; the court then instructed that Sagal had pleaded guilty to
the first count of the indictment which 'is not evidence of the guilt of the
defendants on trial here and gives rise to no inference against any defendant
here.' While it would have been preferable for the court merely to note that
Sagal had been excused and that the trial would proceed without him, any
possible error was cured by its cautionary instructions. See, e.g., United States
v. Dardi, supra; United States v. Aronson, 319 F.2d 48 (2d Cir.), cert. denied,
375 U.S. 920, 84 S.Ct. 264, 11 L.Ed.2d 164 (1963); United States v. Crosby,
294 F.2d 928 (2d Cir. 1961), cert. denied (Mittleman v. U.S., Pettit v. U.S.,
Meredith v. U.S.), 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962).

71

It is argued, also, that the court committed prejudicial error in refusing to order
the government to produce Clott at trial. But, the government is not obliged to
produce witnesses who are not within its control, see United States v.
D'Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied,380 U.S. 955, 85 S.Ct. 1090,
13 L.Ed.2d 972 (1955); its responsibilities are satisfied when it discloses a
potential witness' name and last known address, see D'Ercole v. United States,
361 F.2d 211 (2d Cir. 1966), which the government did in this case. And, after
obtaining this information the defense did not seek an adjournment for the
purpose of locating Clott nor is there any indication in the record that he was
subpoenaed. Moreover, there was no prejudicial error in the court's charge that
since Clott was equally available to the prosecution and the defense failure to
call him 'may not be used * * * as the basis for an inference for or against the
government or for or against any defendant.' Cf., United States v. Armone, 363

F.2d 385 (2d Cir. 1966).

72

We see no more than 'harmless error' in the government's inadvertent failure to

turn over F.B.I. Agent McDonald's grand jury testimony at trial. When this
oversight was discovered approximately three weeks after trial, the government
sent these minutes to Judge Wyatt who forwarded them to defense counsel.
When several counsel moved for a new trial on the basis of the belated
production of this transcript, Judge Wyatt denied the motions, observing that
even if certain inconsistencies between McDonald's testimony before the grand
jury and at trial discredited the Agent, 'it wouldn't have the slightest effect on
the verdict.' We have examined McDonald's grand jury testimony and are
unpersuaded that this ruling was not correct. McDonald's brief testimony at trial
was of minimal importance and did no more than corroborate the evidence of
Gladstone's meeting with Clott the day before the events at the Robert Treat
Hotel. Although one court has suggested that the failure to produce prior
statements of government witnesses is ground for reversal even in the absence
of any demonstration of prejudice, Bergman v. United States, 253 F.2d 933,
935 (6th Cir. 1958), we have declined to reverse where non-production could
properly be classified as 'harmless error,' see United States v. Kahaner, supra,
317 F.2d at 473.
II.

73

Having considered those grounds urged for reversal which would affect several
or all of the appellants, we proceed to the contentions raised by particular
defendants in their own behalf.
ASSERTED COMMENT ON JAKOB'S FAILURE TO TESTIFY

74

Addressing the jury at the close of the trial, the government attorney stated that
in reviewing the evidence for the jury Jakob's attorney had overlooked
testimony which incriminated his client:

75

He forgot to mention, for instance, that William Gladstone testified

uncontradicted that he, Gladstone, told Jakob on or about July 2 * * *.

76

Jakob's counsel interrupted, requested a conference out of the hearing of the

jury and moved for a mistrial on the ground that the prosecutor had improperly
commented upon Jakob's failure to testify by characterizing Gladstone's
testimony as 'uncontradicted.' The judge denied the motion and immediately
admonished the jury to disregard this statement and specifically directed them

not to draw any unfavorable inference from the failure of Jakob to testify in his
own behalf. The following day, the court in its charge repeated these
instructions.
77

We are not persuaded that the prosecutor's comment followed by the court's
immediate curative instructions resulted in reversible error. See United States v.
Agueci, supra, 310 F.2d at 831; United States v. Stromberg, 268 F.2d 256, 271
(2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 123, 4 L.Ed.2d 102 (1959). While
the court's instructions may have to some extent called attention to Jakob's
failure to take the stand, see Stewart v. United States, 366 U.S. 1, 10, 81 S.Ct.
941, 6 L.Ed.2d 84 (1961), counsel for Jakob did not object when the court
indicated its intention to deliver them.
VARIANCE BETWEEN THE INDICTMENT AND THE PROOF

78

Jakob also contends that he was prejudiced by the three week difference
between the date of overt act 8 as described in the indictment and the proof at
trial. The indictment charged that in furtherance of the conspiracy, Jokob met
with Gladstone, Markowitz and Sessler on or about July 14, 1962. At trial, the
government's evidence showed that the meeting took place on or about June 20.
We do not regard this minor variance as fatal. See United States v. Armone,
supra at ; United States v. Glaze,313 F.2d 757 (2d Cir. 1963). Although Judge
Wyatt informed counsel for Jakob that he could have any additional time which
might be necessary to prove a defense because of the difference in dates, no
request for a continuance was made.

79

PARNESS' DOUBLE JEOPARDY AND RIGHT TO COUNSEL CLAIMS

80

Parness asserts that his conviction in the present case was based on the same
conspiracy for which he was convicted in United States v. Parness, 331 F.2d
703 (3d Cir.), cert. denied 377 U.S. 993, 84 S.Ct. 1919, 12 L.Ed.2d 1045
(1964) and that, therefore, he was placed in 'jeopardy' twice for the same crime
in violation of the Fifth Amendment.

81

It is true that both convictions were for conspiracy to transport stolen securities
in interstate commerce, in violation of 18 U.S.C. 2314. However, there the
resemblance between the two offenses ends. The New Jersey indictment
charged a conspiracy lasting from June 1961 to January 1962, between
Grimmett, Favata, McLaren and Parness to transport securities stolen from
Hans and Plate. The present indictment charged a conspiracy between Dodge,
Tallman, Pomeranz, Edwards, Sessler, Lowe, Gladstone, Markowitz,

Lombardozzi, Carbone, Martinelli, Parness and others lasting from April 1962
to July 1962, to transport stock stolen from Bache & Co. While it is clear that 'a
single conspiracy cannot be split up for the purpose of prosecution,' United
States v. Cohen, 197 F.2d 26, 29 (3d Cir. 1952), this case plainly involves a
conspiracy separate from that for which Parness was convicted in New Jersey.
And, while it is true that there was mention in the New Jersey trial that Parness
was making arrangements to deliver to Grimmett in the future $1,000,000 of
securities, and that two persons identified as John and George were present at a
meeting in January 1962 when Parness received money for a future delivery of
$1,000,000 worth of stolen stock, 'George' being identified as George
Martinelli, the source of the stock to be stolen in the future was not identified.
82

As we observed in United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961):

83

Offenses are not the same for the purposes of the double jeopardy clause
simply because they arise out of the same general course of criminal conduct;
they are the 'same' only when 'the evidence required to support a conviction
upon one of them (the indictment) would have been sufficient to warrant a
conviction upon the other.'

84

Applying this test, the evidence required to support a conviction upon the New
Jersey indictment would not have warranted a conviction upon the present
indictment; and the converse is equally true. The present case closely resembles
United States v. Aviles, 274 F.2d 179, 193-194 (2d Cir.), cert. denied (Evola v.
U.S., Santora v. U.S., Lessa v. U.S., Capece v. U.S., DiPalermo v. U.S.,
Genovese v. U.S., Palizzano v. U.S., Barcellona v. U.S.) 362 U.S. 974, 982, 80
S.Ct. 1057, 1058, 1059, 1068, 1071, 1073, 4 L.Ed.2d 1009, 1010, 1015, 1016
(1960), in which we rejected a similar claim of double jeopardy, where the
appellants in a narcotics conspiracy case had previously been convicted of a
narcotics conspiracy involving different principals, techniques, sources of
supply and routes of distribution. Judge Wyatt carefully analyzed and compared
the evidence in the two prosecutions and we are in agreement with his finding
that two separate and distinct conspiracies were involved.

85

Nor are we persuaded by Parness' argument, resting primarily upon Massiah v.

United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), that his
Sixth Amendment rights were violated by Agent Desena's discussion and
negotiation with him in the Robert Treat Hotel without advising Parness of his
right to counsel. Putting aside for the moment the fact that no objection on this
ground was made to the admission of evidence of this conversation, see United
States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86
S.Ct. 887, 15 L.Ed.2d 663 (1966), we note that Massiah is inapposite. While

Parness was under indictment for an unrelated conspiracy offense at the time of
the meeting at the Robert Treat Hotel, we do not read Massiah as forever
immunizing a defendant under indictment for a distinct and unrelated crime
from the normal techniques employed by law enforcement officials to
investigate other and wholly separate offenses. The F.B.I.'s plan to use Agent
Desena as an informant would have been completely thwarted if Desena had
been required to disregard his pseudonym and role as a participant in the
scheme and give the caveat Parness suggests. Neither Massiah nor any of the
other cases cited to us in this connection compel this illogical conclusion.
LOMBARDOZZI'S PREJUDICIAL PUBLICITY POINT
86

While the trial was in progress, a New York newspaper published an article
which reported Carmine Lombardozzi's arrest as a scofflaw and referred to him
as the 'Mafia King of Wall Street.' Appellant John Lombardozzi moved for a
mistrial contending that the adverse publicity concerning Carmine was likely to
affect the jurors' view of John, who was his brother. Judge Wyatt properly
denied this motion. The newspaper article made no mention that Carmine had a
brother named John; and the only oblique reference at trial to a brother of John
occurred when it was pointed out that John performed services for a company
in which his brother (whose first name was not mentioned) was a principal.
Thus, there was very little, if any, connection at trial between John and Carmine
and the judge acted well within his discretion in declining to poll the jurors to
determine if their judgment had been affected by this news item; indeed, in the
circumstances presented here, such polling might have served only to underline
John's filial relationship with Carmine. See, e.g., United States v. Bowe, 360
F.2d 1 (2d Cir. 1966); United States v. Bentvena, supra, 319 F.2d at 934;
United States v. Feldman, 299 F.2d 914, 917 (2d Cir.), cert. denied, 370 U.S.
910, 82 S.Ct. 1256, 8 L.Ed.2d 403 (1962).
EDWARDS' NEWLY DISCOVERED EVIDENCE CONTENTION

87

We find no merit in Edwards' contention that the trial court erroneously denied
his motions to reopen his case and for a new trial on the ground of purported
newly discovered evidence which allegedly showed that Edwards could not
have been present at places where Pomeranz testified they had met.

88

It was not until three weeks after Pomeranz completed testifying that Edwards
made his claim; but, during that entire period Edwards knew the precise dates
and places where Pomeranz described the meetings and conversations which
they had. Moreover, although Edwards testified in his own defense, he never

stated that it was geographically impossible for him to have been present where
Pomeranz placed him-- a claim made on his motion for a new trial. Finally,
there was no satisfactory showing before the trial judge as to reasons why the
supposed 'documentary proof' which was allegedly in the hands of an
accountant employed by Bache & Co.19 in New York could not have been
brought to the Court's attention during trial by the exercise of due diligence. In
these circumstances, we cannot say that Judge Wyatt abused his discretion in
denying the motion to reopen Edwards' case. See United States v. Houlihan,
332 F.2d 8 (2d Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37
(1964).
89

Similarly, the district judge cannot be faulted for refusing a new trial to
Edwards on the ground of newly discovered evidence. When Edwards
requested additional time to submit 'the documentary evidence' in support of
this motion, Judge Wyatt granted him in excess of two weeks to present this
material. But, nothing further was submitted, and, accordingly, the motion was
denied as being 'without merit.' It is fundamental 'that a defendant seeking a
new trial under any theory must satisfy the district court that the material
asserted to be newly discovered is in fact such and could not with due diligence
have been discovered before or, at the latest, at the trial.' United States v.
Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 78 S.Ct. 1385,
2 L.Ed.2d 1551 (1958). See also United States v. Passero, 290 F.2d 238, 244245 (2d Cir.), cert. denied, 368 U.S. 819, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961).
III.

90

We have carefully considered appellants' remaining contentions and find them

without merit; accordingly, all of the convictions are affirmed.

On May 19, 1966, Edwards' appeal was dismissed for failure to file his brief
and appendix in accordance with the schedule previously set down by this
court. On June 20, 1966, Edwards moved to vacate the dismissal, citing
unusual circumstances which prevented his attorney from devoting his time to
this case. Because of these circumstances, we vacated the dismissal of
Edwards' appeal, accepted a belatedly filed brief (to which the government has
responded) and considered Edwards' appeal on the merits

Edwards was sentenced to four years of imprisonment on counts one and two,
the sentences to run concurrently. Jakob received concurrent sentences of one
year and one day on counts one and two, and a $10,000 committed and

consecutive fine on each count. Lombardozzi and Parness were each sentenced
to four years of imprisonment on counts one and two, the sentences to run
concurrently with each other, but consecutively to sentences then being served
3

Named as defendants were Robert J. Dodge, Alan J. Pomeranz, Robert

Edwards, Leo I. Sagal, Milton Parness, Joseph G. Martinelli, Martin L.
Carbone, Fred F. Sessler, Sheldon Lowe, Max Jakob, William B. Gladstone,
Bert Markowitz, John J. Lombardozzi, Michael Lekacos, Michael Levas, John
Doe, a/k/a Robert Francine

Named as co-conspirators but not as defendants were Francine Pomeranz,

Gordon A. Tallman, Alan L. Fisher, Francis P. O'Neill, Isidore Gorlitsky and
Benjamin Clott

Only the four appellants and three codefendants, Martin L. Carbone, Sheldon
Lowe and Leo I. Sagal were tried together. Sagal pleaded guilty to count one at
trial. Carbone's appeal was dismissed on May 11, 1966 and Lowe did not file a
notice of appeal

These defendants pleaded guilty to the conspiracy count of the indictment

At this meeting, Tallman did not mention Bache & Co. by name

Francine Pomeranz was separated from her husband, defendant Alan Pomeranz

The jury could well have inferred, in the light of all the evidence, that Edwards
had already contacted someone in connection with the deal, and that prior to
discussing the details of the transaction with Pomeranz, Edwards had begun
seeking out contacts for distributing the stolen securities and had taken this
matter up with Parness

10

Jakob and Gladstone had hoped to obtain $450,000 from a refinancing of

property owned by Mrs. Jakob, but, for reasons not related to this case, she
declined to give her approval

11

Gladstone's law partner, defendant Bert Markowitz, was present during some of
these discussions. Gladstone and Markowitz were disbarred for professional
misconduct concerning their handling of negligence cases

12

The testimony is unclear as to whether Sessler gave this stock to Jakob who, in
turn, delivered it to Gladstone or whether Sessler gave it directly to Gladstone.
On direct examination Sessler testified that he turned the stock over to Jakob;
on cross examination, he indicated that he passed it to Gladstone

13

This extra time was required so that the checks given to Denenberg in payment
for the stock could clear

14

This was the first time that Sessler introduced Lombardozzi to his contact

15

The microphone was placed in Room 911 and the recordig equipment was
placed in Room 912

16

This claim is made for the first time on appeal

17

The government attorney did not realize that Tallman was not immune from
prosecution for income tax evasion or from aiding and abetting the commission
of the substantive offense

18

The judge told the jury:

The second witness (i.e., Tallman) * * * has been excused by order of the
Court. You are not to draw any inference from that fact of any sort, either for or
against the government or for or against any defendant now on trial.

19

It is only coincidental that this alleged accountant was employed by Bache &
Co