(D.C. Criminal No. 71-267) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before SEITZ, Chief Judge, ALDISERT and ADAMS, Circuit Judges
The defendants appeal their sentences entered upon their conviction by a jury for conspiring to violate 18 U.S.C. § 2315 (1971). The alleged conspiracy was a plan to receive stolen securities and pledge them as collateral for a loan from a bank.*fn1
I. SUFFICIENCY OF THE EVIDENCE - THE JURISDICTIONAL AMOUNT ELEMENT OF AN 18 U.S.C. § 2315 OFFENSE
18 U.S.C. § 2315 (1971)*fn2 contains a jurisdictional amount element which requires the securities allegedly "received or disposed of" to have "the value of $5,000 or more." The defendants maintain the Government failed to produce sufficient evidence that the securities (two certificates representing 3,745 shares of common stock of Chrysler Corporation) were in excess of the jurisdictional amount requirement.
The evidence, viewed most favorably to the Government, established that the brokerage firm, upon discovery of the theft, placed a "stop" on the two certificates; the defendants at the time of the conspiracy did not know the certificates had been "stopped" nor could knowledge of the stop be imputed to the bank since the federal agent who was posing as the bank's loan officer did not know of the stop; all parties stipulated that during the year of the theft the market value of 3,745 shares of common stock of Chrysler Corporation on the New York Stock Exchange was at least $60,000; and the defendants negotiated for a loan of $40,000 for the pledge of the securities.
The district court instructed the jury that the value of the shares at the date of receipt or disposition was controlling and the jury should determine whether the stock then was worth $5,000 or more.
Defendants contend there was insufficient evidence to establish that the value of the Chrysler stock in question exceeded the jurisdictional amount of $5,000 at the time of the securities' receipt or disposition by the defendants. They recognize the parties stipulated as to the market value of Chrysler stock generally but point out there was no evidence before the jury as to the effect of the stop order on the value of the stolen stock at the critical date as charged by the court.
We need not decide the legal correctness of the district court's instruction to the jury that "value" is to be determined as of the time of the receipt or disposition of the property.*fn3 Defendants did not challenge the charge on this point either in the district court or here. Nor need we decide whether the Government's proof of market value was deficient for failure to show the effect of the stop order on such shares. We say this because, at the Government's behest, the stock certificates in question were admitted in evidence. Those certificates, representing 3,745 shares, recite that the shares are of the par value of Six Dollars and Twenty-five Cents each. Thus, their par value far exceeded $5,000 and fulfilled one of the permissible statutory definitions of "value" found in 18 U.S.C. § 2311 (1971). Because the par value was an indisputable fact of record which fulfilled the jurisdictional amount requirement under the circumstances, we do not regard it as significant that there was no reference to it in the instructions to the jury.
II. HEARING AND DETERMINATION DURING TRIAL ON A MOTION TO SUPPRESS MADE BEFORE TRIAL
Well before trial, the defendants filed motions to suppress various evidence on the grounds that their arrests and subsequent searches were improper pursuant to Fed. R. Crim. P. 41(e) (1971).*fn4 However, no suppression hearing was held, nor, consequently, was any determination made on these motions prior to trial. In fact, a fair amount of testimony was taken before the court heard and disposed of the motions. Although the challenged evidence was not "admitted" in evidence until after the suppression hearing and determination, some witnesses were questioned concerning it in the presence of the jury, prior to the hearing. Later in the Government's case, the district court did conduct a suppression hearing out of the presence of the jury. It then decided that there were no infirmities in the arrests and subsequent searches and that the challenged evidence would be properly admissible in evidence.
The defendants contend the suppression hearing and determination during trial could not have resulted in a fair determination on their pretrial motions to suppress. We think the rulings on these motions could and should have been made before evidence was taken. However, we believe the error was harmless because all the evidence challenged in the defendants' motions was properly admissible. We are unwilling to assume that the court's determination was influenced by the posture of the case at the time he ruled. We emphasize ...