210 F2d 141 United States v. Parnes

210 F.2d 141

UNITED STATES,

v.

PARNES et al.

No. 94, Docket 22840.

United States Court of Appeals, Second Circuit.

Argued Jan. 15, 1954.

Decided Feb. 3, 1954.

Edward V. Broderick, New York City (Joseph H. Broderick, New York City, of counsel), for appellant.

J. Edward Lumbard, U.S. Atty. for Southern Dist. of N.Y., New York City (William Esbitt, New York City, of counsel), for appellee.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

PER CURIAM.

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1

Of course, the fact that a conspiracy succeeded does not bar conviction for the crime of conspiracy. The evidence amply supported the verdict. Proof that no export license had issued at New York, whence the gold was exported, justified an inference, not rebutted by Parnes, that no license did issue. The furtive conduct of Parnes and the co-conspirators made it reasonable to infer that they knew that there had been no compliance with the conditions of lawful exportation, and accordingly that it was illegal.

2

We assume, arguendo, that, over objection, the reception of Davidowitz' testimony, as proof of another crime, would have been error. However, defense counsel not only failed to object to Davidowitz' testimony on direct, but cross-examined Davidowitz at length. Only then did defense counsel move to strike this testimony. In these circumstances, the trial judge committed no error in refusing to grant that motion. See Marx v. United States, 8 Cir., 86 F.2d 245, 251; Metcalf v. United States, 6 Cir., 195 F.2d 213, 216-217.

3

Affirmed.

1 It reads in part: 'During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise-

'(A) investigate, regulate, or prohibit any transaction in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, * * * by any person, or with respect to any property, subject to the jurisdiction of the United States; * * * . Whoever willfully violates any of the provisions of this subdivision or of any license, order, rule or regulation issued thereunder, shall, upon conviction, be fined not more than $10,000, or if a natural person, may be imprisoned for not more than ten years, or both; * * * .'

2 Executive Order No. 6260, August 28, 1933, as amended by Executive Order No. 6556, January 12, 1934, Executive Order No. 6560, January 15, 1934 (following Title 12, § 95a, U.S.C.A.) provides, in part: ' * * * Sec. 4. Acquisition of Gold Coin and Gold Bullion- No person other than a Federal Reserve bank shall after the date of this order acquire in the United States any gold coin, gold bullion, or gold certificates except under license therefor issued pursuant to this Executive order * * * .'

'Sec. 6. Earmarking and export of gold coin and gold bullion- After the date of this order no person shall earmark or export any gold coin, gold bullion, or gold certificates from the United States, except under license therefor issued by the Secretary of the Treasury pursuant to the provisions of this order.'