336 F.2d 844 (3rd Cir. 1964), 14563, United States v. Konigsberg

Docket Nº:14563-14567.
Citation:336 F.2d 844
Party Name:UNITED STATES of America v. Harold KONIGSBERG (Appellant in 14563), Joseph Juliano (Appellant in 14565), John Joseph Zax (Appellant in 14566), Joseph Celso (Appellant in 14567) and Joseph Nalewajka (Appellant in 14564).
Case Date:August 13, 1964
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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336 F.2d 844 (3rd Cir. 1964)



Harold KONIGSBERG (Appellant in 14563), Joseph Juliano (Appellant in 14565), John Joseph Zax (Appellant in 14566), Joseph Celso (Appellant in 14567) and Joseph Nalewajka (Appellant in 14564).

Nos. 14563-14567.

United States Court of Appeals, Third Circuit.

Aug. 13, 1964.

Argued June 16, 1964.

Rehearing Denied in No. 14563, Sept. 18, 1964.

Certiorari Denied Dec. 7, 1964. See 85 S.Ct. 327, 334.

Raymond A. Brown, Jersey City, N.Y., for appellants Konigsberg and Nalewajka; Daniel E. Isles, Orange, N.J., for appellant John Joseph Zax; S. M. Chris

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Franzblau, Newark, N.J., for appellant Joseph Juliano; and Michael A. Querques, Orange, N.J., for appellant Joseph Celso (Irving I. Vogelman, Jersey City, N.J., Daniel E. Isles, Orange, N.J., on the brief).

David M. Satz, Jr., Newark, N.J., (Paul Nejelski, Asst. U.S. Atty., on the brief) for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellants Konigsberg, Nalewajka, Juliano and Celso were indicted, tried and convicted of unlawful possession of goods stolen from interstate commerce in violation of Title 18 U.S.C. § 659. Appellant Zax was indicted, tried and convicted of unlawful concealment of goods valued in excess of $5,000 which had been stolen from interstate commerce, in violation of 18 U.S.C. § 2315.

Appellants argue that they had standing to move for the suppression of evidence, to object to its introduction and that the evidence should have been suppressed.

The case centers around the hijacking of some 3,000 men's suits in Parksville, New York. Approximately 1,700 of these were brought to Bayonne, New Jersey and placed in an old garage at 15 West 22nd Street that city. There was substantial evidence that on the night of January 11, 1962, the garage was located in a very poor neighborhood. It was unheated, its windows were constantly being broken by neighborhood children, it had been vacant since the early part of 1961, at least on one occasion the police had removed some old drunks who had entered through a side door. The owner of the building, testifying on behalf of the defense, said that he didn't take care of the building, that he wanted to get rid of it.

Zax said that he had leased this garage on a month to month basis at $100 a month in December, 1961. Levine, the landlord, a witness for Zax, said the latter rented the place for two months. Zax said he gave Levine a hundred dollars cash. Levine says this was paid him '* * * the end of December in 1961.' Zax claimed that he desired to store some furniture of the 'Garden State Betterment League' in the garage. He had some furniture moved in during the first week of January 1962 and then had it taken out '* * * because it was raining in there. It was all wet and it was getting-- the leather was starting to-- I told them to take it back again because I wasn't going to do nothing more there for a while.' The oil burner would not start because it was full of water. Asked regarding his intentions for the garage, he answered, 'Well, I figured we would hold it for a while and try to get a tenant for it.' He testified that around January 6, 1962, one Joseph Pope told him he '* * * would like to use it (the garage) for a week or two * * * I said, Well, you will have to get out if I get a steady tenant' and he said, 'All right. I will rent it for a week or two.' And he said 'How much do you want * * *?' And I said '$50.' Q. 'And did you lease it to him?' A. 'Yes.' Around the second of January 1962, Zax saw two fellows in the garage who gave him 'no good answer' as to what they were doing there. They had a bottle with them anyhow. Zax also explained that entrance could be made into the building 'through the back'. According to him, his intention had been to have glass put in the broken windows. However, on January 11, 1962, the windows had all been covered from the inside with plywood. Agent Tootell testified that Zax told him that he had personally boarded up the windows of the first floor of the garage building after he rented it from Levine. Zax during the critical period was manager of a saloon called the Hoo-Ha Club which was across the street from the garage.

In January 1962, prior to the 10th of the month, Walter L. Parker, a Federal Bureau of Investigation agent of approximately fourteen years experience, received a telephone call from a reliable

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confidential source telling him that 'there was apparently an unlimited quantity of Bond clothes available that was being disposed of in the Bayonne, New Jersey area.' Some numbers on the tags of the clothing were given and the clothing was said to be in the area of the Hoo-Ha Club. The Bureau checked the clothing identification with the manufacturer who identified it as part of the stolen shipment. There was testimony that the reputation of Zax, the 'operator of this bar' and at least some of its patrons '* * * in law enforcement is not too good'. Because of all this the Bureau started a surveillance of the Hoo-Ha and garage location on the evening of January 10th. A car was noticed entering the garage about 8:30 that night. It backed out about ten minutes later and parked on 22nd Street. Several suits with white tags on them were seen lying on the back seat of the automobile. Appellant Juliano suddenly appeared on 22nd Street. A little later a man who came from the Hoo-Ha drove the car away.

About 9:30 the next night, Juliano moved an automobile from in front of the garage to allow a station wagon to back in. Several men left the Hoo-Ha and went into the garage and its door was closed. For about the next hour there was no light from the garage visible to the watching agents. The latter did hear '* * * the rustling of papers and a lot of laughter.' Then the garage door was raised from the inside. Four Bureau agents were about two feet in front of the door as it opened. Their testimony is that the lights were off in the garage but with the light from the street and from their flashlights they saw in the garage piles of suits on the floor and in the station wagon. Appellant Celso was in the driver's seat of the station wagon. The agents told the people in the garage they were under arrest. Juliano started to walk out. He and Celso, Konigsberg and Nalewajka who were also in the garage, were taken into custody. Under the circumstances, a search warrant, which had been obtained earlier, was not used. Zax was not in the garage at the time. He was arrested the next day.

Prior to trial the defendants moved to suppress the evidence of the stolen suits. The trial court took testimony and heard exhaustive argument on that motion for seven days. The motion as to Konigsberg, Juliano, Celso and Nalewajka was denied at the conclusion of the argument on the grounds: that the garage at the time of the seizure of the suits was not a building within the purview of the Fourth Amendment whereby search thereof without a warrant would constitute an invasion of the privacy of any of the defendants; that none of the defendants had standing to challenge the seizure as persons aggrieved by unlawful search and seizure and that '* * * as a fact the Agents acting pursuant to the provisions of 18 U.S.C. § 3052 did have reasonable ground to believe at the time the arrests were made that each person in the garage had committed or was committing a felony.'

Against the overwhelming proof to the contrary, appellants make no attempt to argue that the garage involved was appellants' house within the purview of the Fourth Amendment in which they were entitled to Constitutional protection of their privacy. None of the defendants, including Zax, had a then present possessory interest in the garage. The only one, according to Zax as a trial witness, who had the right at that time to use the building was the mysterious Mr. Pope to whom Zax said he had rented the premises for a week or two on January 4th, 5th, 6th or 7th. Zax asserted that he had received the agreed fifty dollars rent from Pope and had given him a key. As the trial judge mentioned in his opinion, there had been some suggestion by counsel for the other four defendants that the latter were in the building with the permission of Pope but there is no record support for this. Certainly, Pope was not produced at the trial. Zax stated regarding him, 'I know he has not been around in quite a while.' Beyond question if appellants were legitimately

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in the garage as invitees or guests of Pope as sublessee they might well have been under the Fourth Amendment umbrella. However, that is not the situation and, as above noted, there is no pretension that it is.

What appellants are really saying definitely and directly is that since they were caught cold in the garage with the stolen clothes, they were in possession of the clothes and therefore they do not have to prove either a right to be on the premises or to the clothes. Appellants point to their indictment for possession of merchandise stolen in interstate commerce as bringing them within the rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The Jones decision concerned a prosecution for violation of federal narcotic laws. The defendant had been convicted under 26 U.S.C. § 4704(a), with having 'purchased, sold, dispensed and distributed' narcotics not in or from the 'original stamped package' and under 21 U.S.C. § 174 for having 'facilitated the concealment and sale of' the same narcotics, knowing them to have been imported illegally into the United States. Both those statutory provisions permit conviction upon proof of the defendant's possession of the narcotics and, with respect to 26 U.S.C. § 4704(a), of the absence of the appropriate...

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