353 F.2d 327 (9th Cir. 1965), 19459, D'Argento v. United States

Docket Nº:19459.
Citation:353 F.2d 327
Party Name:Joseph N. D'ARGENTO and James A. Caparusso, Appellants, v. UNITED STATES of America, Appellee.
Case Date:November 04, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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353 F.2d 327 (9th Cir. 1965)

Joseph N. D'ARGENTO and James A. Caparusso, Appellants,


UNITED STATES of America, Appellee.

No. 19459.

United States Court of Appeals, Ninth Circuit.

November 4, 1965

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Burton Marks, Beverly Hills, Cal., for appellants.

Manual L. Real, U.S. Atty., John K. Van De Kamp, Asst. U.S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Sec., Robt. H. Filsinger, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and POWELL, District Judge.

POWELL, District Judge.

Joseph N. D'Argento appeals from his convictions and three concurrent five year sentences. He and James A. Caparusso were charged in a four count indictment on March 25, 1964, with violation of 18 U.S.C. 371 (Conspiracy), and 18 U.S.C. 659 (Theft from interstate shipment and possession of stolen goods). Defendants were found guilty on the three counts by the jury on April 17, 1964. The fourth count was dismissed.

Since the trial James A. Caparusso had died. His appeal is subject to dismissal as the prosecution abates on the death of the defendant. Daniel v. United States, 268 F.2d 849 (5 Cir. 1959); Crooker v. United States, 325 F.2d 318 (8 Cir. 1963). The evidence will be discussed here as though the appeal was by both convicted defendants.

On this appeal error is claimed by appellant as follows:

1. That the evidence was insufficient to sustain a finding of guilty on any of the three counts as there was no evidence that the goods were removed from Interstate Commerce, that there was no evidence of knowledge or intent and no evidence of agreement.

2. That prejudicial and inadmissible evidence was received over objection and consisted of:

(a) Evidence of the arrest and 'flight' of the defendant D'Argento in Chicago, (b) Evidence of statement of D'Argento of ownership of an automobile on May 1, 1963, and (c) Evidence obtained in violation of Fourth Amendment rights consisting of (1) license plates seized in Chicago, and (2) the statements of D'Argento of May 1, 1963 which were the result of an unlawful arrest.

3. That defendants were denied an opportunity to present evidence that the evidence admitted at the trial was unlawfully

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seized, (1) as to the search warrant in Chicago, and (2) the arrest in Beverly Hills on May 1, 1963.

4. That the indictment was defective in alleging the theft and possession of the same goods and the Government should have been required to elect on which they were proceeding, and the court erred in failing to instruct the jury they could not find defendant guilty of both.

5. The cumulative effect of the erroneous admission of prejudicial evidence and the failure of the trial court to exclude the witnesses at the time of trial was such as to deny appellant due process.

At the commencement of the trial the parties entered into a written stipulation about the ownership and description of the property involved in this case. It is summarized as follows:

Twenty-seven fur pieces were shipped from New York, N.Y. by Samuel Feldstein to himself, in care of Dicker & Dicker, Beverly Hills, California. They were in two sample cases bearing Railway Express Agency (REA) waybill Nos. 790557 and 790558, and a cardboard carton bearing REA waybill No. 790559. They arrived at the REA Air Express Terminal Office at Los Angeles International Airport on November 17, 1963. The stipulation listed the style and identification numbers of the twenty-seven fur pieces.

Two additional fur pieces were shipped from New York, N.Y., by Oliver Gintel to Duffy Edwards, 201 South Beverly Drive, Beverly Hills, California, in a carton bearing waybill No. 469586, which arrived at the REA Air Express Terminal at Los Angeles International Airport on November 17, 1963.

The stipulation stated the total retail and wholesale value of the furs and provided that the twenty-nine fur pieces were photographed on November 19, 1963, resulting in twenty-nine photographs, which are marked Government's Exhibit 3, and that the photographs were fair and accurate representations of each fur piece, contained in the shipment. The stipulation was read to the jury at the trial.

Government witness Wilbur Moore testified that he had been an employee of REA for about 21 years and worked at the Los Angeles International Airport on November 18, 1963, from midnight to 8 a.m. When shipments which were marked 'valuable' arrived he was required to list each waybill number separately on a sheet. The valuable items were placed in a cage for security. Mr. Moore knew that the items involved in this case were valuable because there was a red ball sticker on the waybills.

Mr. Moore testified that he received all of the cases and the cartons listed in the stipulation. He entered the numbers on a registration sheet when he received the goods. The destination and stated value were also entered. Mr. Moore stated the two cases and two cartons were stacked outside the security cage when they were received as they were too large to go in the cage, which was already rather well filled.

Mr. Moore did not see anyone remove the cartons, although he admitted there were a lot of items left outside the cage. He remembers the two cases and four or five large cartons because they were too large to go in the cage. He turned the other valuable items over to his relief when he went off work at 8 a.m. The waybills containing the red ball stickers were attached to the cases. Mr. Moore did not see either of the defendants at any time in the vicinity of the air terminal.

Vincent Masser, an employee of REA on November 18, 1963, was at the Los Angeles International Airport. His duty was to care for valuable cargo. He worked from 12 o'clock midnight to 8:30 in the morning. When he arrived the security cage was filled and there were packages on the outside of the cage. These consisted of two sample cases, plus other boxes. He inspected the packages outside the cage when he came to work and checked the waybill numbers with these packages. He located the sample cases bearing the numbers listed in the

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stipulation. At 1 o'clock he stacked the items and put a clip board on top of them. He stacked them because they were all bound for certain destinations and to be picked up later by a driver. He testified the doorway was large enough for a truck to enter. The doorway was always open and there was a fence that separated the doorway from the parking area, but the fence was in such a state of disrepair that anyone could walk over the fence. On November 18, 1963, Mr. Masser observed a car with two people in it in the parking area about 10 feet from the fence. He saw the car after midnight and it was there as late as 1 a.m. He went on his coffee break at 1:45 a.m. The lights of the car were off and the vehicle was facing away from the building. He was pretty sure the occupants of the car were two males seated in the front seat. He later parked his car in the same location and could see through the door and see the cage clearly. When he went on his coffee break on November 18, one employee, Harry Eggers, was left in the building. When Mr. Masser left the four cases were still in their original location. When he returned after half an hour he noticed the sample cases and the four packages were missing, and that the cases bearing the waybill numbers listed in the stipulation were gone. No notation was made by Masser at that time except that he notified the agent that the objects were missing. When he returned he instituted a search for the cartons and cases throughout the REA Air Freight section. They were not in the freight office.

Harry Eggers was an employee of REA at the International Airport and had been so employed for about 20 years. He was on duty November 18, 1963, and was the foreman. He testified that Masser left for his coffee break between 2 and 3 o'clock, although he did not know the exact time. Eggers was in the front office when Masser left. There was no one else present in the building. Masser was gone approximately 30 minutes. From Mr. Egger's position in the front office he could not observe any of the valuables that might have been piled around the cage.

Mr. Eggers did not see or hear anything unusual while Mr. Masser was away.

Joseph Finocchio was employed by REA at the railroad area at the Union Pacific depot on Alameda, between Aliso and Macy Streets in Los Angeles. He was on duty November 18, 1963. A person whom he identified as appellant D'Argento wanted to know where he could ship two sample cases. The witness testified 'they were on rollers, castors or whatever you want to call them, and I pointed over to the desk and went inside the office and got Mr. Bates.' The sample cases looked something like Government's Exhibits 1 and 2. The gentleman identified by Mr. Finocchio as D'Argento did not have the sample cases with him, but they were 10 or 12 feet away from the desk. There was another man present who was standing in between the two sample cases. Mr. Finocchio did not see where appellant D'Argento came from. He talked to the FBI agent the day after he saw appellant D'Argento, and also talked to the REA security officers. He testified that he saw the man he identified as D'Argento around 6:30 a.m. on November 25th. The other witnesses fixed the date as November 18th. There was nothing unusual about the man asking him how to ship something or where to ship it. Finocchio testified that the person he identified was around 6 feet tall. Finocchio testified as to the man's identity and clothing. He had never been a detective or policeman and could not give a description of the other man who was with the person he identified as D'Argento. The FBI agents, Loughney and Walsh, interviewed him about November 24 or 26.

J. B. Bates, an employee of REA, was on duty November 18, 1963, at the Union Station, at about 6:30 a.m. He...

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