TUTTLE, Chief Judge.
This appeal attacks the conviction of appellant on two counts of a six-count indictment for having in interstate commerce knowingly and willfully received and concealed stolen securities knowing them to have been stolen and which were actually stolen from two banks in Ontario and Quebec Provinces in Canada. These acts were charged to be in violation of the provisions of Title 18, United States Code, Section 2315.
The attacks of the appellant are of three kinds: (1) on the indictments; (2) on the sufficiency of the evidence; and (3) on the conduct of the trial.
The contentions as to the indictments are to the effect that they were not specific enough to put appellant on notice as to which securities he was being prosecuted on and that they were not specific enough to protect him against the danger of subsequent prosecution as to the same offenses.
The indictment originally charged six offenses; counts one and three charged Browder with transporting stolen securities in interstate commerce, count one describing certain securities as “securities stolen at the Brockville Savings and Trust Company, etc.” and count three describing certain securities as “securities stolen at the Caisse National D’Economie Insurance Company, etc.”; counts two and four charged Browder with knowingly and willfully receiving and concealing the same stolen .securities;
counts five and six charged Browder with “disposing” of the two groups of stolen bonds, knowing them to have been stolen.
There was an additional indictment charging appellant together with Francisco Ferrara, with having conspired to do the acts charged against them in the six counts above outlined. The two indictments were consolidated for trial.
The trial court, at the conclusion of the government’s case, granted a motion for judgment of acquittal in the conspiracy case, and, at the close of the trial, entered a judgment of acquittal as to counts five and six. The jury found the appellant guilty of the two receiving and concealing counts and found him not guilty of the two transportation counts.
The requirements of an indictment to withstand a motion to dismiss are well established. As set out in the Federal Rules of Criminal Procedure: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” F.R.Cr.P. § 7(c), 18 U.S.C.A. Except as to the element of interstate commerce, discussed below, we have no doubt that this indictment was sufficient in the circumstances of this case to inform the appellant of the fact that he was being charged with receiving and concealing stolen securities knowing them to be stolen and of a value in excess of $5,000, and that they were securities stolen from a certain named bank. We think that the indictment standing alone charged receiving or concealing all of the bonds stolen on the days mentioned from the designated financial institutions. This was subsequently limited by a bill of particulars naming a lesser number of bonds. When, in response to the motion for a bill of particulars, the United States furnished a list of the specific numbered bonds which it said were “the securities referred to in Count **«2***4 of the indictment,” any contention that there was insufficient information to prevent the danger of double jeopardy was removed from the case. See Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583, and Dunbar v. United States, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 290.
Appellant’s criticism of the manner and time of furnishing the bill of particulars is not available to him here. In view of the fact that all of the bonds involved had been taken from appellant upon his arrest, the only conceivable need for the better description was to protect him against a subsequent prosecution on the same securities as to which he was here proceeded against. Since he was furnished the list, squarely pinpointing the securities made the basis of this prosecution, we think it immaterial that this list was not furnished earlier in the course of the proceedings.
The further attack on the indictment touches on the expression, “which constitute interstate commerce.” Appellant comments only that, “The indictment by the use of the present tense renders the charge meaningless; it is only proper to charge that the bonds
constituted
interstate commerce at the time they were allegedly received. It is not so charged; the indictment in this respect is defective.” It will be noted that the appellant does not attack the indictment on the ground that the alleged act of the accused in receiving or concealing the bonds under the circumstances did not, or could not, “constitute” interstate commerce, a point which the government says is answered by the three cases of United States v. Segelman, D.C.W.D.Pa., 86 F.Supp. 114, United States v. Rocco, D.C.W.D.Pa., 99 F.Supp. 746, and DeFreese v. United States, 5 Cir., 270 F.2d 737. It is only argued that the indictment did not adequately state that the acts did in fact constitute interstate commerce. We think this is clearly without merit.
The next attack by appellant is on the sufficiency of the evidence. We conclude this is equally without substance. It was testified that the bonds had been stolen from the financial institutions in Canada; that some of them had been offered to a potential purchaser by Ferrara in Boston ; that Browder met Ferrara in Miami and he later made a trip to Europe and tried unsuccessfully to sell the bonds in Switzerland; that he returned to Miami and tried to sell the bonds to two individuals, whom he met rather casually, at a discount of as much as 21 percent at a time when the bonds (bearer bonds) were selling at 97%; that he told different stories as to the source of the bonds, but declined to let it be known that he was the owner; that he finally submitted a
sample bond to a potential purchaser or go-between for a presumed purchaser and this was turned over to the FBI, who kept the appointment for closing the sale of $138,000 face value of the bonds; that after the arrest and after being warned that he need say nothing, the FBI agent testified that Browder made a suggestion to the agent that if they would return these bonds, drop the arrest and avoid any publicity, he had a good chance of “recovering $1,750,000 more worth of these bonds”;
finally, that one of the persons Browder approached for the purpose of acting as a go-between testified that Browder had told him the bonds were stolen, but that he had nothing to do with the theft.
To counter this evidence Browder testified that he had been given the bonds by a group of Cubans in return for the shipment of certain arms from Italy, and he attempted to explain his willingness to sacrifice them at 79 cents on the dollar because of some deal with Cuban pesos.
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TUTTLE, Chief Judge.
This appeal attacks the conviction of appellant on two counts of a six-count indictment for having in interstate commerce knowingly and willfully received and concealed stolen securities knowing them to have been stolen and which were actually stolen from two banks in Ontario and Quebec Provinces in Canada. These acts were charged to be in violation of the provisions of Title 18, United States Code, Section 2315.
The attacks of the appellant are of three kinds: (1) on the indictments; (2) on the sufficiency of the evidence; and (3) on the conduct of the trial.
The contentions as to the indictments are to the effect that they were not specific enough to put appellant on notice as to which securities he was being prosecuted on and that they were not specific enough to protect him against the danger of subsequent prosecution as to the same offenses.
The indictment originally charged six offenses; counts one and three charged Browder with transporting stolen securities in interstate commerce, count one describing certain securities as “securities stolen at the Brockville Savings and Trust Company, etc.” and count three describing certain securities as “securities stolen at the Caisse National D’Economie Insurance Company, etc.”; counts two and four charged Browder with knowingly and willfully receiving and concealing the same stolen .securities;
counts five and six charged Browder with “disposing” of the two groups of stolen bonds, knowing them to have been stolen.
There was an additional indictment charging appellant together with Francisco Ferrara, with having conspired to do the acts charged against them in the six counts above outlined. The two indictments were consolidated for trial.
The trial court, at the conclusion of the government’s case, granted a motion for judgment of acquittal in the conspiracy case, and, at the close of the trial, entered a judgment of acquittal as to counts five and six. The jury found the appellant guilty of the two receiving and concealing counts and found him not guilty of the two transportation counts.
The requirements of an indictment to withstand a motion to dismiss are well established. As set out in the Federal Rules of Criminal Procedure: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” F.R.Cr.P. § 7(c), 18 U.S.C.A. Except as to the element of interstate commerce, discussed below, we have no doubt that this indictment was sufficient in the circumstances of this case to inform the appellant of the fact that he was being charged with receiving and concealing stolen securities knowing them to be stolen and of a value in excess of $5,000, and that they were securities stolen from a certain named bank. We think that the indictment standing alone charged receiving or concealing all of the bonds stolen on the days mentioned from the designated financial institutions. This was subsequently limited by a bill of particulars naming a lesser number of bonds. When, in response to the motion for a bill of particulars, the United States furnished a list of the specific numbered bonds which it said were “the securities referred to in Count **«2***4 of the indictment,” any contention that there was insufficient information to prevent the danger of double jeopardy was removed from the case. See Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583, and Dunbar v. United States, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 290.
Appellant’s criticism of the manner and time of furnishing the bill of particulars is not available to him here. In view of the fact that all of the bonds involved had been taken from appellant upon his arrest, the only conceivable need for the better description was to protect him against a subsequent prosecution on the same securities as to which he was here proceeded against. Since he was furnished the list, squarely pinpointing the securities made the basis of this prosecution, we think it immaterial that this list was not furnished earlier in the course of the proceedings.
The further attack on the indictment touches on the expression, “which constitute interstate commerce.” Appellant comments only that, “The indictment by the use of the present tense renders the charge meaningless; it is only proper to charge that the bonds
constituted
interstate commerce at the time they were allegedly received. It is not so charged; the indictment in this respect is defective.” It will be noted that the appellant does not attack the indictment on the ground that the alleged act of the accused in receiving or concealing the bonds under the circumstances did not, or could not, “constitute” interstate commerce, a point which the government says is answered by the three cases of United States v. Segelman, D.C.W.D.Pa., 86 F.Supp. 114, United States v. Rocco, D.C.W.D.Pa., 99 F.Supp. 746, and DeFreese v. United States, 5 Cir., 270 F.2d 737. It is only argued that the indictment did not adequately state that the acts did in fact constitute interstate commerce. We think this is clearly without merit.
The next attack by appellant is on the sufficiency of the evidence. We conclude this is equally without substance. It was testified that the bonds had been stolen from the financial institutions in Canada; that some of them had been offered to a potential purchaser by Ferrara in Boston ; that Browder met Ferrara in Miami and he later made a trip to Europe and tried unsuccessfully to sell the bonds in Switzerland; that he returned to Miami and tried to sell the bonds to two individuals, whom he met rather casually, at a discount of as much as 21 percent at a time when the bonds (bearer bonds) were selling at 97%; that he told different stories as to the source of the bonds, but declined to let it be known that he was the owner; that he finally submitted a
sample bond to a potential purchaser or go-between for a presumed purchaser and this was turned over to the FBI, who kept the appointment for closing the sale of $138,000 face value of the bonds; that after the arrest and after being warned that he need say nothing, the FBI agent testified that Browder made a suggestion to the agent that if they would return these bonds, drop the arrest and avoid any publicity, he had a good chance of “recovering $1,750,000 more worth of these bonds”;
finally, that one of the persons Browder approached for the purpose of acting as a go-between testified that Browder had told him the bonds were stolen, but that he had nothing to do with the theft.
To counter this evidence Browder testified that he had been given the bonds by a group of Cubans in return for the shipment of certain arms from Italy, and he attempted to explain his willingness to sacrifice them at 79 cents on the dollar because of some deal with Cuban pesos. He was unable to explain, however, why he could not simply sell the bearer bonds at 97% and then invest the much larger proceeds in Cuban pesos. At any event the jury seems not to have believed his story. Perhaps some of this disbelief stemmed from the fact that it was fairly convincingly proved that one of the men he testified as having made the negotiations with him on December 23,1958, had been killed in an aircraft accident in Cuba on November 5,1958.
The only substantial question presented by appellant here is whether there was sufficient evidence from which the jury could believe that either the receipt or concealment of the bonds was in interstate commerce. We think the evidence fully warrants a finding by the jury that the bonds were received by Browder from Ferrara for the purpose of selling them; that Browder had them with him in Europe in an effort to sell them; that he subsequently brought them back or sent them back to Miami for the purpose of selling them there.
Browder’s possession of the bonds under the circumstances is admitted in appellant’s brief to warrant the inference that he concealed them. “[I]t is apparent from his mere possession of the bonds that Browder received them and that in the course of his possession he concealed them * * * ” Thus it could be found that he concealed them at the very time that he was attempting to dispose of them as a part of interstate or foreign commerce.
We then come to the contentions about the conduct of the trial. We
conclude there was no error in the refusal of the trial court to sever the two cases for trial or in the refusal to grant a continuance. Nor is there any merit in appellant’s contention that the court should have required the government to elect between counts 1 and 3 on the one hand, and 2 and 4 on the other.
Following the trial appellant submitted, purportedly pursuant to Rule 75 (n) Federal Rules of Civil Procedure [28 U.S.C.], as made applicable by Rule 39(b) (1) of the Federal Rules of Criminal Procedure, a statement by counsel for appellant touching on an occurrence “during the course of this action and not stenographically reported.” This statement reported an alleged conversation between a government witness and a juror.
The government moved to strike the proposed statement, disagreeing with the statement “materially.” Since it appears that the motion for supplementing the record was never called up and the statement of counsel was not “settled and approved,” as required by the Rule, there is nothing here for our consideration. The stenographic record can be amended in a manner specifically set out in the rules. This includes a statement by the moving party and a settlement by the court of any dispute touching on the matter. The burden is on the party seeking to enlarge the transcript, and a failure to comply with the rule leaves the matter outside the record, The judgment is affirmed.