The petitioner was convicted of conspiring to violate the National Stolen Property Act, 18 U.S.C.A. § 413 et seq. The Circuit Court of Appeals for the Second Circuit sustained the conviction. 147 F.2d 199. We brought the case here, 324 U.S. 837, 65 S.Ct. 915, because it was submitted to the jury in a way that raised an important question in the administration of federal criminal justice.
The relevant facts upon which decision must turn are these. Bollenbach, the petitioner, and others were indicted upon two counts: for transporting securities in interstate commerce knowing them to have been stolen (48 Stat. 794, 18 U.S.C. § 415, 18 U.S.C.A. § 415; 35 Stat. 1152, 18 U.S.C. § 550, 18 U.S.C.A. § 550) and for conspiring to commit that offense (35 Stat. 1096, 18 U.S.C. § 88, 18 U.S.C.A. § 88). Having been granted a severance, Bollenbach was tried separately. No doubt the securities had been stolen in Minneapolis and were transported to New York. And it is not controverted that Bollenbach helped to dispose of them in New York.
The question is whether he was properly convicted under the indictment. The trial lasted seven days. After the jury had been out seven hours they returned to the Court to report that they were 'hopelessly deadlocked.' Interchanges then ensued between court and jury and between court and counsel. One of the jurors asked 'Can any act of conspiracy be performed after the crime is committed?' The trial judge made some unresponsive comments but failed to answer the question. No exception was noted immediately. In a few minutes the jury left, but after twenty minutes again returned for further instructions. Bollenbach's counsel then indicated that the court had left the bench too hurriedly to enable him to except to the judge's failure to answer the question. After an exception was then taken and allowed, the judge 'mistakenly replied,' as the lower court noted, 'that he had already told them that there could be no conspiracy after the object of the conspiracy had been attained.'
After indulging in further colloquy with counsel, not here pertinent, the judge stated that he had this note of inquiry from the jury: 'If the defendant were aware that bonds which he aided in disposing of were stolen does that knowledge make him guilty on the second count?' In answer the judge instructed the jury as follows: 'Of course if it occurred afterwards it would not make him guilty, but in that connection I say to you that if the possession was shortly after the bonds were stolen, after the theft, it is sufficient to justify the conclusion by you jurors of knowledge by the possessor that the property was stolen. And, just a moment-I further charge you that possession of stolen property in another State than that in which it was stolen shortly after the theft raises a presumption that the possessor was the thief and transported stolen property in interstate commerce, but that such presumption is subject to explanation and must be considered with all the testimony in the case.' Counsel for the accused excepted to this charge, but the judge cut short an attempted request by counsel with the remark, 'You may except to the charge but I will not take any requests.' The jury filed out and returned five minutes later with a verdict of guilty on the second-the conspiracy-count. A sentence of two years and a fine of $10,000 were imposed. The Circuit Court of Appeals reversed the judgment and ordered a new trial. It found error in the charge just quoted. 'Certainly it is untenable to say' was the crux of its holding, 'that the possession of stolen goods raises any presumption that they have in fact been transported in interstate commerce.' 147 F.2d 199, 202. And it held that it could not disregard the error because of the questionable evidence as to whether the accused knew that the bonds had come from another State. But on rehearing the Court's attention was called to the fact that, after his arrest, the accused admitted that he knew that the bonds had come from the West and that he may have had that knowledge before he disposed of them. On further consideration of the bearing of this evidence upon the defendant's knowledge of the place of the theft, the Circuit Court of Appeals changed its view and held that 'it would be altogether unwarranted to reverse the judgment because of the mistake in the charge.' 147 F.2d at page 202.