United States v. Tannuzzo, 150

• Decision Date: 11 April 1949
• Docket Number: Docket 21202.,No. 150,150
• Parties: UNITED STATES v. TANNUZZO et al.
• Court: U.S. Court of Appeals — Second Circuit

174 F.2d 177 (1949)

UNITED STATES v. TANNUZZO et al.

No. 150, Docket 21202.

United States Court of Appeals Second Circuit.

April 11, 1949.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner, Roy M. Cohn, Clarke S. Ryan and Harold J. McAuley, Asst. U. S. Attys., all of New York City, of counsel), for United States of America, plaintiff-appellee.

Henry G. Singer, of Brooklyn N. Y. (Harry Silver, of Brooklyn, N. Y., on the brief), for defendants-appellants Salvatore Tannuzzo and Nunze Dellaratta.

Wegman, Spark & Burke, of New York City (J. Bertram Wegman and Richard J. Burke, both of New York City, of counsel), for defendant-appellant Anthony Vespole.

Edward H. Levine, of New York City (Arnold D. Roseman, of New York City, on the brief), for defendant-appellant David Felstein.

Before SWAN, AUGUSTUS N. HAND and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The four defendants, Tannuzzo, Dellaratta, Vespole and Felstein were indicted with five others for causing certain stolen fur coats belonging to Revillon Freres to be transported in interstate commerce and also were indicted with three of the five for conspiring to cause such transportation. The testimony adduced on behalf of the government was briefly as follows:

One DeSatnick, a truck driver for Revillon, who testified for the prosecution after pleading guilty to the substantive offense, arranged with Schneiderman, another employee of Revillon, to steal furs. On November 18, 1946, he told Schneiderman that he would have a good truckload of furs on the next day. In the evening of November 18, DeSatnick and Schneiderman met Tannuzzo, Dellaratta, Aurecchione and Vespole in Brooklyn, where a simulated hold-up was planned for November 19. On November 19, DeSatnick, accompanied by his helper Mancuso, who is said to have been innocent of the plot, drove the truck containing 300 fur coats belonging to Revillon from the latter's establishment. The "fake" hold-up was carried out by Vespole at 31st Street and 8th Avenue, Manhattan, who ordered DeSatnick to drive the truck containing the furs to Brooklyn, where they turned it over to Tannuzzo and Dellaratta, who with Aurecchione, who died prior to the trial of the action, had kept it under observation and followed it in a Buick car. Tannuzzo and Dellaratta then took the furs to some undisclosed destination. Mancuso gave substantially the same testimony as DeSatnick as to the sequence of events.

DeSatnick testified that early in December, 1946, he met Aurecchione and Vespole and that Aurecchione stated in the presence of Vespole "that the stuff is hot, they are moving it from one drop to another and it is costing them some money." DeSatnick also testified that when arrangements were being first made for the theft, Schneiderman told him that Vespole "would take care of the money deal."

Grossman, a co-defendant who had pleaded guilty to both indictments, testified for the Government. He testified that two days before December 11, 1946, he and the defendant Felstein were approached in Felstein's restaurant in Newark, New Jersey, by Aurecchione and one Maislich, who asked Grossman if he could get rid of some furs, Aurecchione stating that he wanted $25,000 for them. Maislich pleaded guilty to the conspiracy indictment but secured a dismissal on the substantive indictment. The following day, pursuant to arrangements, Grossman met Aurecchione and Maislich in Brooklyn and was taken by them to Tannuzzo and Dellaratta who showed him the furs in a basement. Later that day, Aurecchione, Grossman and Felstein conferred in Newark, and Felstein agreed to purchase the furs for $15,000. On the next day, December 11, Felstein and Grossman borrowed a truck from a grocer in Elizabeth, New Jersey, which Grossman drove to Brooklyn. The latter pleaded guilty to both indictments.

Aurecchione, Tannuzzo and Dellaratta helped Grossman load this truck with the furs, and he then drove the truck to New Jersey via the Manhattan Bridge, Holland Tunnel and the Pulaski Skyway. Aurecchione and Tannuzzo followed him in a car and before the truck started Aurecchione said in the presence of the others "I'll follow you into Jersey." The truck broke down shortly after turning off the Pulaski Skyway, between Kearny and Harrison, New Jersey, and Grossman abandoned the truck with its contents. The New Jersey Police immediately took the truck and its contents into their possession.

Aurecchione and Tannuzzo conferred with Grossman and Felstein that night at Felstein's place of business in Newark, and the grocer from whom the truck had been borrowed was advised to conceal the fact that Grossman and Felstein had borrowed it.

The day after this, Aurecchione, Tannuzzo and Dellaratta again interviewed Grossman and Felstein in New Jersey in an unsuccessful effort to secure payment from Felstein for the furs.

Dellaratta and Vespole each contend that the evidence was insufficient to warrant conviction. Dellaratta was in Brooklyn when the hold-up was planned for November 19, and on the 19th followed the truck containing the furs to Brooklyn, received it with Tannuzzo, and with the latter took the furs to some undisclosed destination. Likewise, on December 11, he helped Grossman load the truck, which was about to take the furs to New Jersey, and after the New Jersey Police had taken the truck and its contents into possession, appeared the next day and talked with Grossman and Felstein with a view to securing payment for the furs from the latter. Under these circumstances, there was certainly sufficient proof to convict Dellaratta both under the substantive indictment and for conspiracy. The contention that the jury could not find that he knew that the truck which he helped to load in Brooklyn was to transport goods in interstate commerce, even when Aurecchione is said to have stated in his presence, "I'll follow you into Jersey," is without substance.

The evidence that Vespole was made aware of the fact that the furs were to be transported in interstate commerce and therefore entered into a conspiracy with others to effectuate such transportation seems to us insufficient. While he was a key figure in the original theft of the furs and there was also the evidence that he "would take care of the money deal," and that early in December he had learned that there was difficulty in selling the goods, we find no evidence that he knew of the plan, which later developed, to take the furs to New Jersey for delivery to Felstein. The most that can be said against him is that he was only interested in obtaining a good price and would have been willing to have the furs sold to an out-of-state buyer had that disposition been brought to his attention. But such a relation to the conspiracy was insufficient to render him guilty of that offense in view of our decision in United States v. Crimmins, 2 Cir., 123 F.2d 271. See also Gable v. United States, 7 Cir., 84 F.2d 929; Davidson v. United States, 8 Cir., 61 F.2d 250, 251. The evidence which we found sufficient to establish a conspiracy in United States v. Turley, 2 Cir., 135 F.2d 867, was far stronger than that against Vespole in the case at bar.

But the evidence against Vespole was sufficient to convict him under the substantive indictment. The statute under which he was indicted and convicted of the substantive offense does not require proof of knowledge on his part that the stolen goods were to be transported in interstate commerce. It only requires that he knew that the goods had been stolen and that he caused them to be thus transported. If, as the evidence indicates, Vespole stole the furs and turned them over to Tannuzzo and Dellaratta to sell for joint account, without limitation as to where the sale was to be made, the jury might properly find that Vespole caused their transportation when one of his confederates arranged for a sale to Felstein pursuant to which they were taken across a state line. Conviction for the substantive offense would follow from our holding in United States v. Sherman, 2 Cir., 171 F.2d 619, 623, 624 under a similar statute. That opinion drew a distinction between the amount of knowledge necessary to establish a conspiracy and to establish the substantive offense of receiving goods stolen while moving in foreign commerce. We held, as we did in United States v. Crimmins, supra, that knowledge that the goods were so moving was necessary to convict for conspiracy, but not for the substantive offense. To convict of...