Appeal from the United States District Court for the Southern District of New York.
Present: HON. WILLIAM H. TIMBERS, Circuit Judge, HON. CHARLES H. TENNEY, HON. LEONARD B. SAND, District Judges
This cause came on to be heard on the transcript of the record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
With regard to appellant's claims that the evidence was insufficient to demonstrate the requisite state of knowledge required for a conviction on the counts of conspiracy and aiding and abetting, it is clear that the evidence must be viewed on appeal in the light most favorable to the government. Glasser v. United States, 315 U.S. 60 (1942). The object of the stock fraud and conspiracy obviously was to acquire a substantial percentage of the shares of Indecon, to manipulate the price to inflated levels and then to sell to members of the unsuspecting public. Aronesti need not have been party to the original formation of the conspiracy or scheme, United States v. Finkelstein, 526 F.2d 517, 527 (2 Cir. 1975); he need not have known all of the other conspirators and their roles in the scheme, United States v. Gentile, 530 F.2d 461, 465 (2 Cir.), cert. denied, 409 U.S. 1006 (1972); nor need he have known of each facet of the conspiracy. United States v. Kaufman, 429 F.2d 240, 243 (2 Cir. 1970). His claim that he was merely an "order taker" is belied by the evidence adduced at trial. He was first approached by the other conspirators, offered a payment to purchase the shares, and then began to purchase large amounts of the stock for his customers.From the proof of the circumstances surrounding the cash bribes, the jury properly could have concluded that Aronesti, with his knowledge of the brokerage field, knew that the others were engaged in the unlawful disposition of shares of the company whose shares could not make it alone on the open market. Like the defendant Burns in United States v. Kaufman, supra, appellant's participation in the instant scheme in taking the bribes was sufficient for the jury to infer knowledge or, at the very least, a conscious effort to avoid learning the truth of the fraudulent scheme of the others. Moreover, the evidence clearly established aiding and abetting on appellant's part in that he associated himself with the venture by agreeing to purchase the shares for a payment and participated in the scheme, hoping by his actions to make it succeed. United States v. Peoni, 100 F.2d 401, 402 (2 Cir. 1938) (L. Hand, J.).
With regard to appellant's claimed lack of federal jurisdiction, we find no merit to his argument that the brokerage statements sent through the mails to his customers were not in furtherance of and for the purpose of executing the scheme. Like the confirmation slips which were held sufficient to establish federal jurisdiction in United States v. Marando, 504 F.2d 126 (2 Cir.), cert. denied, 419 U.S. 1000 (1974), the brokerage statements here served to "lull the purchasers into a false sense of security" and helped provide the fraud with "the appearance of normality." Id. at 130. Similarly, the telephone calls to Olesker, first to tout the stock and then to reassure Olesker as to the wisdom of appellant's purchases clearly were in furtherance of the scheme and designed to keep Olesker from getting suspicious. Moreover, as the government points out, the numerous calls and mailings by the other members of the scheme were not only reasonably forseeable, but also sufficient to establish federal jurisdiction as to this defendant. See, e.g., United States v. Finkelstein, 526 F.2d 517 (2 Cir. 1975); United States v. Cohen, 145 F.2d 82, 90 (2 Cir.), cert. denied, 323 U.S. 799 (1945).
Finally, with regard to appellant's claim of error relating to the alleged improper witness-juror contact, appellant's delay in raising this issue constitutes a waiver of his right to raise it, now that a hearing on the issue is virtually impossible. See United States v. Gersh, 328 F.2d 460, 464 (2 Cir.), cert. denied, 377 U.S. 992 (1964). Moreover, it is clear from the record that the ten-second contact in this case, relating solely to Mintz who later was acquitted by this jury, did not result in depriving appellant "of the continued objective and disinterested judgment of the juror." United States ex rel. Moore v. Fay, 238 F.Supp. 1005, 1007 (S.D.N.Y. 1965).
Judgment of conviction affirmed on all counts.