U.S. v. Kahan
| Decision Date | 07 March 1978 |
| Docket Number | No. 1430,D,1430 |
| Citation | 572 F.2d 923 |
| Parties | 3 Fed. R. Evid. Serv. 605 UNITED STATES of America, Appellee, v. Chaim KAHAN, Solomon Wercberger and Mor Wercberger, Defendants-Appellants. ocket 77-1216. |
| Court | U.S. Court of Appeals — Second Circuit |
Milton S. Gould, New York City (Shea, Gould, Climenko & Casey, Ronald H. Alenstein and Lawrence B. Sutter, New York City, of counsel), for defendants-appellants.
Paul F. Corcoran, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty. and Bernard J. Fried, Chief Asst. U S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before VAN GRAAFEILAND and WEBSTER, * Circuit Judges, and DOOLING, ** District Judge.
At about 9:00 P.M. on March 11, 1975, a Time D.C. tractor-trailer carrying 6,910 cartons of Schick products interstate was highjacked in Parsippany, New Jersey. On March 12th, 1784 cartons of the products were delivered to the S & F Warehouse, and 1673 (or 1654 or 1606) cartons were delivered to the CBS warehouse, operated by the three defendants. On March 13th, at least 3,032 of the Schick products were delivered to CBS warehouse. Agents of the Federal Bureau of Investigation watched the delivery, and, after it was completed, seized 5,072 cartons of the Schick products at the CBS warehouse under a search warrant obtained while the Agents had the warehouse under surveillance. The defendants have been convicted of unlawfully receiving and possessing 5,072 cartons of Schick products stolen from an interstate shipment knowing the same to have been stolen. They were acquitted of a count charging them with conspiring to receive and have in their possession the cartons of Schick products stolen from interstate commerce. 1
Appellants contend that certain declarations of an alleged co-conspirator made after appellants' arrest should not have been received in evidence, that evidence suggesting that they had received stolen property under similar circumstances five weeks earlier should not have been received, and that the evidentiary fruits of the search and seizure of March 13th should have been suppressed because the affidavit on which it rested was insufficient and rested on a material misstatement of fact.
The evidence was essentially simple. Carroll Bridgeforth, the driver of the Time D.C. tractor-trailer combination, testified that he and his co-driver James Lester picked up a trailer loaded with Schick products at the New Haven, Connecticut, terminal between seven and seven-thirty on the evening of March 11, 1975, to drive it to Winchester, Virginia en route to the shipment's ultimate destination in California. At about 9:00 P.M., near the junction of Interstate Route 80 with Route 287 in New Jersey, a car forced them off the road and three or four armed men highjacked the truck at gunpoint. Bridgeforth, kept in the highjackers' car until released, with Lester, in Staten Island near midnight, testified that he heard one highjacker say to the other at about 11:30 P.M. that "the buyer was well satisfied with the load."
Paul Pollari testified that at about 7:00 or 7:30 o'clock in the evening of March 11th, Jimmy De Fillippo telephoned him to say that he had "work" for Pollari in the morning. On the next morning Jimmy De Fillippo called for Pollari at his house at 7:00 or 7:30 o'clock. He had with him his brother Patty De Fillippo and Manny Gomez. The four drove together to a truck rental station in Brooklyn and rented two straight trucks and a van. Pollari and Gomez drove one truck, Patty De Fillippo the other truck and Jimmy De Fillippo the van. They drove together to a trailer yard in Brooklyn in which there were about 30 to 40 trailers. One was a Time D.C. trailer parked midway in the yard, and not visible from the street. When Pollari, Gomez and the De Fillippos reached the yard, Joe De Luca and Vinnie (Jimmy) Santa were already there. The Time D.C. trailer was opened and Pollari saw that it was packed to the back with razor blades. One of the rented trucks was backed up to the trailer and Santa, De Luca, the De Fillippos and Pollari loaded both the rental trucks full from the trailer. Santa sent Pollari and Gomez with their truckload to the S & F Warehouse on Flushing Avenue near the Navy Yard with a sketchily filled out "Shipping Order" copy of a bill of lading not indicating any carrier, but reciting that the goods had been received at Clinton, Connecticut from Schick and were "Consigned to International Trading Co.", at the "Destination S & F Warehouse", by the "Route Building 77," and naming as the "Delivery Carrier Brooklyn Navy Yard". The description of the article was "Razors & Blades" followed by "Hold for Shipment". There was no shipper or carrier signature on the document. When Santa sent Pollari and Gomez to S & F Warehouse, he told Pollari, who had expected to go with Jimmy De Fillippo, that De Fillippo was going to CBS with the other rented vehicle. Gomez and Pollari drove to the S & F Warehouse and unloaded their truck until about 5:30 in the afternoon; they then left with about a quarter of the load still on the truck. 2 Pollari and Gomez drove back to the lot, found Santa and De Luca there, and refilled the rented truck they were driving from the Time D.C. truck. The De Fillippo brothers had not yet returned. Santa instructed Pollari and Manny to park their loaded truck at Gomez's house overnight and to go to CBS the following morning. That evening Pollari called Special Agent Pecoraro of the FBI and informed him of what was going on. 3 The next morning Gomez and Pollari drove their loaded truck to the CBS warehouse in Brooklyn. There the three defendants came out, looked into the truck, supplied the truckmen with skids, and showed them how to stack the cartons so that they would not fall. Later the De Fillippos arrived with Schick products and they too were unloaded and all the Schick cartons were taken by fork-lift truck and elevator into the CBS warehouse. The unloading of the truck and vans was not completed until 3:00 or 4:00 o'clock in the afternoon. The rented vehicles were returned and then Pollari and the De Fillippos went to the house of "Tommy Reel" and there met De Luca, Santa and one Stabino. Santa then told Pollari that "the FBI had hit the place, CBS, ten minutes after we left," but, said Santa, "we have nothing to worry about, it's on their end." Santa then paid $700 to Pollari and each of the De Fillippos.
The CBS warehouse had been under FBI surveillance from about nine o'clock on the morning of March 13. The Special Agents had learned of the Time D.C. theft by teletype on March 12, 1975, and had specification numbers of the products that had been on the trucks. They observed the Schick products being unloaded from the rented trucks and saw the defendants receiving the stolen goods; they could see that products being unloaded were Schick products, and Agent Pecoraro knew and recognized Pollari and Gomez. While the Special Agents were watching the delivery of the Schick products, a search warrant was obtained and the Agents executed the warrant. 5072 cartons of Schick products from the Time D.C. truck were located on the premises. Defendants Kahan and Mor Wercberger were to some extent interviewed. Defendant Kahan said that he had documents for the 1673 cartons of Schick products received on March 12th and Mor Wercberger produced a uniform straight bill of lading for 1654 packages of "Razors and Blades". The bill of lading differed from the one Santa had given to Pollari to cover the S & F delivery on the preceding day only in reading "Destination c/o CBS Warehouse, Route Foot of 50 St " rather than "Destination S & F Warehouse, Route Building 77", and in reciting receipt of 1654 packages. Defendant Mor Wercberger also produced a CBS form of bill of lading, a copy of which, he said, he had issued to the truckman on March 12, 1975. It recited that an unnamed carrier had received from CBS Warehouses, Inc. "1 load blades" consigned to "INT Trucking"; it was signed by defendant Mor Wercberger.
No carrier document purported to cover the receipt by CBS of 3,032 cartons of Schick products on March 13th. Mor Wercberger produced the original of a straight bill of lading on the CBS form, reciting an unnamed carrier's receipt from CBS of "3032 car.", described as "3 loads" consigned to "Int'l Trucking".
Further documents related to the March 12th delivery included an unsigned handwritten receipt on a CBS form which recited the receipt from an unnamed person of 1606 cartons of Schick products, a signed typewritten receipt form of CBS Warehouses, Inc., dated March 13th, for 1606 cartons of Schick products received for account of International Trucking Co., and typewritten inventory cards covering the 1606 cartons. However, nothing was produced for the 3,032 cartons delivered on March 13th except the incomplete straight bill of lading on the CBS form. Neither defendant Kahan nor defendant Mor Wercberger could identify International Trading Company; Mor Wercberger said that he was not familiar with the company and had never before done business with it. After his arrest, Mor Wercberger produced from his wallet a statement of Tereza Merchandising Corp. (unrelated to the present case) on the back of which there was a handwritten list of 3,290 cartons of Schick products. Mr. Wercberger testified that he made up the list on the loading dock at CBS on March 13th before the drivers left, but did not put the descriptive detail of the list on the bill of lading form because truckmen are interested only in getting a receipt for the right number of packages. The numbers on the list and on the bill of lading form, however, are not in agreement.
The cartons of Schick products delivered on March 12th and 13th to the S & F and the CBS warehouses were returned to Time D.C. and by Time D.C. were returned to Warner Lambert, the manufacturer of the Schick products. The ...
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