U.S. v. Indelicato

• Decision Date: 20 November 1979
• Docket Number: 79-1069,Nos. 79-1068,s. 79-1068
• Citation: 611 F.2d 376
• Parties: UNITED STATES of America, Appellee, v. Joseph INDELICATO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard F. NUTILE, Defendant, Appellant. First Circuit
• Court: U.S. Court of Appeals — First Circuit

Page 376

611 F.2d 376

UNITED STATES of America, Appellee, v. Joseph INDELICATO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Richard F. NUTILE, Defendant, Appellant.

Nos. 79-1068, 79-1069.

United States Court of Appeals,First Circuit.

Argued Sept. 6, 1979.

Decided Nov. 20, 1979.

Gerald Alch, Boston, Mass., by appointment of the Court, for defendant, appellant Joseph Robert Indelicato.

Leonard M. Frisoli, Jr., Cambridge, Mass., by appointment of the Court, for defendant, appellant Richard F. Nutile.

Stanley E. Greenidge, Sp. Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., and Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief, for appellee.

Before KUNZIG, ^* Judge, U.S. Court of Claims, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendants-appellants Richard Nutile and Joseph Indelicato were convicted by a jury on three counts of unlawfully and willfully possessing United States Treasury checks stolen from the mails, 18 U.S.C. § 1708, ¹ three counts of uttering and publishing as true the same United States Treasury checks with an intent to defraud the United States, 18 U.S.C. § 495, ² and of aiding and abetting on all counts, 18 U.S.C. § 2. ³ Defendants appeal their convictions, alleging the commission of various errors by the district court during the course of their joint trial. We affirm.

The Indictment

The indictment handed down by the grand jury contained nine counts alleging unlawful activity by three persons: appellants Indelicato and Nutile and Anthony Costa. Costa pleaded guilty to Counts V and IX, which pertained only to him, received a sentence of two years probation and testified against appellants at their trial. Count I, a conspiracy count, was eliminated from the consideration of the jury when the district court dismissed it for failure of the government to present evidence to support its allegation that the checks were stolen from a receptacle owned and maintained by the Post Office.

The Facts

At trial, a stipulation was put in evidence which stated that sixty-eight United States Treasury checks were mailed to the named payees at various times throughout the fall and winter of 1974 and the spring of 1975, and that, if called to testify, the payees would testify that they neither received nor endorsed the checks. During the course of the trial, the government put in evidence the sixty-eight checks, all of which had been negotiated and presented for payment to the United States. The checks had been negotiated by one or more of three small grocery stores in Massachusetts: the Green Apple, located on Gainsborough Street in Boston; the Mini Mart, located on Beacon Street in Boston; and a store owned by Costa located in Randolph, Massachusetts.

The government introduced the following evidence to connect appellants with the checks. Several vendors and jobbers of groceries in the Boston area testified that they serviced the Green Apple and, on the basis of that experience, believed that the store was owned and/or operated by Nutile. They testified further that on numerous occasions they were paid for goods delivered to the Green Apple with Treasury checks which later bounced, and identified these checks as being among those alleged in the indictment to have been stolen from the mails. Henry Boch, one of the jobbers, testified that Nutile endorsed a Treasury check payable to Anne E. Flanagan with the words "Green Apple" and paid him for goods with it. Agent Artone of the United States Secret Service testified that fingerprints on two of the Treasury checks enumerated in the indictment and negotiated by the Mini Mart were identical to Nutile's fingerprints. Other vendors testified that they believed Nutile operated the Green Apple in partnership with another person.

Suppliers and creditors of the Mini Mart testified that Indelicato owned and operated the store, and that Indelicato paid them for goods and services purchased by the Mini Mart with Treasury checks enumerated in the indictment. One supplier testified that he received Treasury checks enumerated in the indictment from Indelicato at both the Mini Mart and the Green Apple. Several suppliers testified that when the enumerated Treasury checks received from Indelicato began to bounce, Indelicato agreed to make the checks good. Agent Artone identified a fingerprint on one of the enumerated Treasury checks negotiated by the Green Apple as that of Indelicato.

The most damaging evidence against appellants was provided by the testimony of Costa, the alleged coconspirator who pleaded guilty to possessing and uttering as genuine twenty-four of the sixty-eight checks specified in the indictment. Costa testified that he met Nutile through Indelicato, a longtime friend, and that the meeting started Costa's involvement in the use of his store for the passing of Treasury checks. Costa testified that during a visit by Indelicato and Nutile to his store in Randolph, Nutile asked him as a favor to cash a Treasury check payable to Annie Tiso (Item No. 2 in the indictment). After the check bounced, Costa called Indelicato in an effort to reach Nutile. Indelicato assured him the checks would be taken care of and promised to call Nutile. Nutile subsequently called Costa and gave him similar assurances. Shortly thereafter, a man known only as the "Gypsy" appeared at Costa's store. Costa testified that the Gypsy told him he had been sent by Nutile to take care of the bad check and gave Costa additional Treasury checks (listed in the indictment). Costa testified further that the Gypsy brought him many checks over the next few months, saying each time he had been sent by Nutile. After all the checks bounced, Costa told the Gypsy that he would cash no more checks. Within a short time, Nutile, himself, appeared at Costa's store and urged him to continue cashing the checks. When Costa persisted in his refusal, Nutile showed him a bulge in his coat and said pointedly, "You have a family."

The only evidence presented by either appellant was a hospital record introduced by Nutile showing that he had been an intensive care patient at the Milton, Massachusetts Hospital from October 23, 1974, to November 1, 1974, and an inpatient in the same hospital from November 2, 1974, to November 9, 1974. This evidence was introduced to show that Nutile could not have endorsed the Flanagan check over to Henry Boch at the Green Apple on or about November 6, 1974, as Boch had testified.

Defendant-Appellant Indelicato

We consider first the appeal of Indelicato. Should we find merit in his position, our decision would concurrently sweep away the conviction of Nutile on the same counts. Indelicato alleges error by the district court in denying his motion for a directed verdict of acquittal as to Counts II, III, IV, VI, VII, and VIII, the substantive counts of the indictment. Indelicato contends that on each of the six substantive counts the government was required to prove that the checks were stolen from the mails, a burden he says the district court found the government had not met when it granted the motion for a judgment of acquittal as to Count I. If the evidence was insufficient as a matter of law to establish an essential element of the conspiracy count, so the argument goes, it was reversible error to permit the jury to render verdicts as to counts of the indictment that required the same element to be proven. However plausible this argument may at first glance seem, it fails, for it is premised on an incorrect assumption that equates the "receptacles owned and maintained by the United States Postal Department" element of Count I with the "stolen from the mail" element of the substantive counts of the indictment.

Count I of the indictment, the conspiracy count, specifically alleged that the Treasury checks in question had "been stolen from a receptacle owned and maintained by the United States Postal Department." In granting the motion for a judgment of acquittal, the district court found

there was a part of the conspiracy that the defendants would receive checks drawn on the Treasury, said checks having been stolen from a receptacle owned and maintained by the Postal Department and there has been no evidence were (Sic ), in fact owned or stolen from a receptacle owned or maintained by the Postal Department. That calls for speculation. The Court is not willing to state it is sufficient for the purpose of allowing Count 1 to go to the jury.

Contrary to the assertions of appellant, neither the language of the substantive counts nor the statutes on which the counts were based required the government to prove that the checks were stolen from receptacles owned and maintained by the United States Post Office.

Counts II, III, and IV each alleged unlawful and willful possession of check(s) "which had been stolen from the Mail " (emphasis added). The language of these counts clearly does not impose upon the government the same obligation imposed by Count I, I. e., to prove that the checks were stolen from a Receptacle owned and maintained by the Post Office. While proof of theft of materials from a receptacle owned and maintained by the Post Office obviously would prove theft from the mails, it is equally obvious that proof of theft from the mails would not necessarily prove theft from a postal receptacle. ⁴ The statute on which Counts II, III, and IV were based reflects the more inclusive nature of the term "mail" by making unlawful the possession of materials stolen "from or out of any Mail, post office, or station thereof, letter box, Mail receptacle " (emphasis added). 18 U.S.C. § 1708. This statute has been consistently construed so as not to require direct proof of theft or taking from the mails. Blue v. United States, 528 F.2d 892, 894 (8th Cir. 1976); United States v. Matzker, 473 F.2d 408, 409 (8th Cir. 1973); United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1...