United States v. Parisi

• Citation: 365 F.2d 601
• Decision Date: 30 August 1966
• Docket Number: No. 16809,16810.,16809
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas PARISI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph O'BRIEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

365 F.2d 601 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas PARISI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Joseph O'BRIEN, Defendant-Appellant.

Nos. 16809, 16810.

United States Court of Appeals Sixth Circuit.

August 30, 1966.

Arthur Karger, New York City, for appellant O'Brien, Philip A. Gillis, Detroit, Mich., on the brief.

Ivan E. Barris, Detroit, Mich., for appellant Parisi.

Paul J. Komives, Asst. U. S. Atty., Detroit, Mich., for appellee, Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief.

Before PHILLIPS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

These cases are on appeal by Thomas Parisi and Charles Joseph O'Brien, defendants-appellants, from a judgment of conviction in the United States District Court for the Eastern District of Michigan, Southern Division. These appellants, whom we will call defendants, along with one Sam Salvatore Finazzo, were jointly indicted on a three-count indictment charging them with unlawfully removing certain merchandise from a bonded area at the Detroit Harbor Terminal and from the custody and control of the United States Customs Service, in violation of Section 549, Title 18, U.S.C.¹

The first count charged that they removed fourteen cases containing marble slabs and table tops, with identifying markings, on or about March 19, 1963. The second count charged the removal of a marble statute of St. Theresa on or about March 18, 1963. The third count charged that they removed twenty-one cases containing brass valves and fittings and chrome valve handles on or about March 18, 1963. Each count,² except as to the date and description of merchandise removed, is identical in terms of the offense charged.

The trial judge sustained a motion for a judgment of acquittal, on behalf of Finazzo, at the close of the government's testimony. The defendant Parisi was found guilty on the second and third counts and the defendant O'Brien was found guilty on all three counts of the indictment. Parisi was sentenced to imprisonment for eighteen months and O'Brien for one year and one day.

The merchandise involved in the indictment had been a part of the cargo of the SS Montrose which sank in the Detroit river on July 30, 1962. Some of this merchandise was salvaged in September 1962, while the ship was still submerged. The remainder of the cargo was removed from the ship in November 1962, after it was refloated. All of this salvaged cargo was taken to the Detroit Harbor Terminal. The merchandise was placed under a General Order by the Collector of Customs upon its discharge from the ship. (Physical possession taken by Collector of Customs who holds it until final disposition is made.)

The insurance company advertised the merchandise for sale and a Mr. Mularoni, who was the highest bidder, purchased some of the items which are the subject of the three counts of the indictment. A few days later Mr. Mularoni received a telephone call from Arrow Salvage Company. As a result of this call he went to the office of Arrow Salvage Company and, upon being shown some merchandise, identified it as the merchandise he had bought the week before. Mr. Mularoni notified the customs officers and the next day he went back to Arrow Salvage Company in company with customs officers. They met the defendant Thomas Parisi who showed them the merchandise and who claimed that it was his. Part of it was identified as merchandise previously purchased by Mularoni. Other items were identified as part of the cargo of the Montrose and which had been in storage at Detroit Harbor Terminal. Later, the defendants O'Brien and Salvatore Finazzo came in. After some questioning all three men were arrested and were subsequently charged in the indictment now before the Court.

Among the various assignments of error both defendants claim that the indictment does not state an offense. Since each count of the indictment is subject to the same objection made by defendants, we will refer to them as the indictment. The charge that the indictment is fatally defective and does not state an offense is based on two grounds. 1. It does not allege that the defendants acted knowingly or wilfully or with felonious intent; and 2. It does not set out with requisite specificity the offense, under the general statutory description, with which the defendants are charged.

In support of the first claim of deficiency, the defendants cite Hughes v. United States, 338 F.2d 651, 340 F.2d 609, C.A.1. This case is analogous to the case at bar but the district judge did not follow it and neither do we. In United States v. Deutch, 98 U.S.App. D.C. 356, 235 F.2d 853, 854, the court held an indictment sufficient which charged that the defendant "`unlawfully refused to answer' five specific questions put to him by a Committee of Congress." This was a prosecution under Section 192, Title 2, U.S.C. This statute contained two offenses:

"* * * willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, * * *"

The court said:

"Any doubt on this is resolved by the presence of the word `unlawfully\' preceding `refused\' in this indictment; that would satisfy the statute since a refusal would be unlawful only if it were willful. In other words, if `refused\' standing alone were held not sufficient because it does not connote a refusal which violates the statute, the presence of the word `unlawfully\' would remedy that defect."

So in the case before us, "unlawfully remove" has the same effect as "unlawfully refused to answer." To the same effect is Logsdon v. United States, 253 F.2d 12, 13-14, C.A.6; Madsen v. United States, 165 F.2d 507, C.A.10; United States v. Williams, 202 F.2d 712, 713, rehearing den. 203 F.2d 572, C.A.5, cert. den. 346 U.S. 822, 74 S.Ct. 37, 98 L.Ed. 347; United States v. Amorosa, 167 F.2d 596, 597, C.A.3; United States v. Silver, 235 F.2d 375, C.A.2, cert. den. 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 88.

In Madsen v. United States, supra, the court said, 165 F.2d at p. 509:

"The sufficiency of an indictment is no longer tested by the rigors of the old technical rules of criminal procedure. The test is whether the indictment contains the elements of the offense intended to be charged and sufficiently informs the defendant of what he must meet in the preparation of his defense, and whether it is sufficiently specific to obviate the danger of the defendant being prosecuted a second time for the same offense. The indictment must allege the essential elements of the offense but mere forms of averment may be disregarded. Tested by these rules, we find no difficulty in upholding the sufficiency of the indictment."

In Hartwell v. United States, 107 F.2d 359, at p. 362, C.A.5, the court said:

"While it is certainly true that a valid indictment cannot be dispensed with as a predicate to conviction where an indictment is necessary, (Citation omitted) it is also true that the practice of fine combing indictments for verbal and technical omissions is no longer countenanced in the courts, and that a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient. The indictment complained of complies fully with the rule."

In Duke v. United States, 233 F.2d 897, at p. 899, C.A.5, the court said:

"The sufficiency of an indictment must be determined on the basis of practical rather than technical considerations, * * *"

See also Risken v. United States, 197 F.2d 959, 962, C.A.8; 4 Anderson's Wharton's Criminal Law and Procedure, Section 1749, p. 538; United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92.

The claim that the indictment does not describe the offense with specificity is without merit. Each count of the indictment describes exactly what merchandise was removed, the date that it was alleged to have been removed and that it was in violation of Section 549, Title 18, U.S.C. This section defines the offense without reference to any other statute. The defendants would have no difficulty in knowing with what crime they were charged. Neither would there be any danger of the defendants being prosecuted a second time for the same offense.

The district judge gave a scholarly opinion on the subject of the sufficiency of the indictment and we are in agreement with it. 255 F.Supp. 755. We conclude that the indictment is valid and that it is "a plain, concise and definite written statement of the essential facts constituting the offense charged," as required by Rule 7(c) of the F.R.Cr.P.

One assignment of error on behalf of the defendant O'Brien is that the evidence is insufficient to sustain a conviction. The rule for an appellate court in determining the sufficiency of the evidence is stated in Ross v. United States, 197 F.2d 660, 665, C.A.6, as quoted with approval from United States v. Manton, 107 F.2d 834, 839, C.A.2, cert. den. 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012:

"In passing upon the sufficiency of the proof, it is not our province to weigh the evidence or to determine the credibility of witnesses. We must take that view of the evidence most favorable to the government and sustain the verdict of the jury if there be substantial evidence to support it."

We have read all of the evidence submitted to us in the appendices and considering it in the most favorable light to the government, it is such that, if believed, the jury could draw reasonable inferences to support a guilty finding against the defendant O'Brien. One cannot read the evidence without concluding that O'Brien was the one who was instrumental in having the merchandise removed. The question then was one of intent and that was a matter for the jury to determine under all of the facts and circumstances of the case. We agree with the trial...