U.S. v. Bennett
| Decision Date | 13 November 1981 |
| Docket Number | No. 1640,D,1640 |
| Citation | 665 F.2d 16 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ralph R. BENNETT, Defendant-Appellant. ocket 81-1079. |
| Court | U.S. Court of Appeals — Second Circuit |
Jerome J. Neidermeyer, Asst. U. S. Atty., Rutland, Vt. (Jerome F. O'Neill, U. S. Atty., D. Vermont, Rutland, Vt., and P. Scott McGee, Hyde Park, Vt., on the brief), for plaintiff-appellee.
Stephen S. Blodgett, Burlington, Vt., for defendant-appellant.
Before VAN GRAAFEILAND and KEARSE, Circuit Judges, and MARKEY, Chief Judge. *
Defendant Ralph Bennett appeals from a judgment of conviction entered after a jury trial in the United States District Court for the District of Vermont, the Honorable Albert W. Coffrin presiding, on three counts of an indictment relating to the efforts of several persons to sell a truckload of stolen scallops. The jury found Bennett guilty of receiving, concealing, storing, and disposing of a stolen truck in violation of 18 U.S.C. § 2313 (1976), of selling stolen scallops in violation of 18 U.S.C. § 2315 (1976), and of conspiring with others to commit the above, and related, 1 crimes in violation of 18 U.S.C. § 371 (1976). Bennett was sentenced to concurrent terms of four years each for the substantive violations, to be followed by three years of probation on the conspiracy charge.
Because we conclude that the district court's charge to the jury did not adequately explain the scope of §§ 2313 and 2315, we reverse the conviction and remand for a new trial.
This prosecution began with a five-count indictment charging five persons, including Bennett, with acts relating to their plan to obtain seafood by unlawful means in Rhode Island and to transport it to Vermont where they hoped to sell it. Prior to trial the government dismissed two of the five counts against Bennett, leaving the three described above to be tried. During or prior to trial Bennett's codefendants, Messrs. Gilpin, Perrier, Dragon, and Vyzorek, pleaded guilty to various counts, and they testified at the trial. As a result of their testimony the facts concerning the actions of Bennett and his confederates are not in serious dispute. The controversy centers not on actions, but on Bennett's knowledge as to the nature of the scheme furthered by those actions.
In October 1979, Perrier and Gilpin agreed, at Perrier's initiative, that Gilpin would illegally obtain seafood for Perrier to sell in Vermont. Gilpin originally arranged with his friend Vyzorek for Vyzorek to load his truck with scallops and for Gilpin then to abscond with Vyzorek's truck in a feigned hijacking. Vyzorek's truck broke down, however, and thus was not available. Therefore, on November 9, 1979, Gilpin hijacked in earnest a truck loaded with scallops and drove from Rhode Island to the farm of unindicted coconspirator Kathleen Johnson in Vermont. Shortly after Gilpin's arrival, Perrier arrived in a U-Haul truck. There is conflicting testimony as to whether Bennett arrived in this U-Haul with Perrier or arrived with another man in a second U-Haul truck. It is clear, however, that Bennett had been enlisted by Perrier the night before to, in Perrier's words at trial, "be my helper." Gilpin, Perrier, Bennett, and others transferred the stolen scallops from the truck Gilpin had hijacked to the two U-Haul trucks, and Perrier and Bennett soon departed in one of scallop-laden U-Hauls for the Burlington, Vermont area where they intended to sell the scallops. The hijacked truck remained at the Johnson farm until it was buried on property owned by Dragon on November 11.
On the morning of November 10, Perrier and Bennett began calling on entrepreneurs and restaurateurs in the Burlington area. At their second stop, the owner told Perrier that he had just heard that stolen scallops were being sold in the area. As Perrier and Bennett continued on their rounds, they were stopped and questioned by Vermont state policemen. The policemen told Perrier and Bennett that the low price at which the two were selling scallops had aroused their suspicions. Perrier responded that he and Bennett had bought the scallops just inside the Vermont border. Bennett confirmed Perrier's statement.
Perrier and Bennett continued to sell the scallops until, on November 13, the remaining scallops were stolen from them. 2
Bennett's defense was simply that he did not know the truck or the scallops had been stolen. 3 It had been his belief initially, and perhaps throughout, that he was participating in a scheme to defraud the insurer of the owner of the scallops. There was evidence, albeit not undisputed, to support this contention.
The principal testimony was that of codefendants Perrier, Gilpin, and Dragon. Perrier testified that it was his initial understanding that the truckload of scallops had been obtained as part of an insurance fraud and that this was the information he had given Bennett. Perrier's testimony as to what he did after he and Bennett had been questioned by the Vermont police on November 10 was as follows:
Q Did you talk about your encounter with the police, about what had just happened?
A. Yes, I did.
A. Yes.
Q What was discussed? What did you say?
A. I told him that the way it was supposed to be in the first place, it was supposed to be an insurance job, and that was about it, you know.
Q Be a little more specific. Exactly what was the extent of your conversation with Mr. Bennett?
A. Well, there was still a question in my mind of exactly what was going on, because we got stopped and got let go, and that's mainly what we talked about. That was about it.
Q At some point that afternoon did you place a call to Mr. Gilpin, (alias) Mr. Long?
A. Yes, I did.
Q And when did that happen?
A. About three quarters of an hour after we got stopped.
Q In that phone call did you relate ......
A. ..... I am sorry, let go by the police department.
Q Okay, three quarters of an hour after the police let you go?
A. Right.
Q Did you tell Mr. Long what happened?
A. Yes, I did.
Q And what conversation ensued?
A. At this point he still said it was an insurance thing.
Q He told you it was an insurance thing?
A. Yes.
Q It is your testimony that at that point you didn't know that the truck had been hijacked?
A. At that point I didn't, no.
Q No one had told you at the Johnson farm that the truck was hijacked?
A. No, nobody did.
Q Pardon me?
A. Nobody did, no.
Q So at that point you were working under the assumption that this was some kind of insurance fraud, that you were just getting rid of the scallops?
A. That's right.
Q After speaking with Mr. Long on the phone, did you talk with Mr. Bennett?
A. Yes, I am sure I did.
Q Well, I would like you to think back on it. Did you have any discussion with Mr. Bennett about the insurance fraud?
A. I believe so, yes.
Q All right, what was that discussion? And when did it take place? And where did it take place?
A. After I made the phone call to Jay (Gilpin). It took place in the truck.
Q In the U-Haul truck?
A. Yes.
Q And what did you tell Mr. Bennett?
A. I told him exactly what was related to me.
Q Please tell the Ladies and Gentlemen of the Jury what you told Mr. Bennett? Relate the details?
A. Just about it was supposed to be an insurance job. There was nobody hurt, no one involved. It was just a clean insurance job.
Perrier testified that he did not know until near midnight on November 10, when Gilpin arrived in Burlington to collect some of the proceeds of the day's sales, that the truck had been hijacked. Although Perrier testified that he believed Bennett was present when Gilpin revealed that the truck and scallops were stolen, Gilpin testified that Bennett was not present at the conversation in Burlington: "David (Perrier) and I went off to ourselves and talked, because I didn't know Mr. Bennett." Gilpin indicated that he had told no one other than Perrier (and perhaps Gilpin's girlfriend) that the truck had been hijacked. Gilpin also testified, however, in contradiction to Perrier, that he had informed Perrier that the truck had been hijacked, rather than obtained from a friend, on November 9.
Despite Gilpin's efforts to be circumspect, Dragon testified that it was common knowledge "in November, at the Johnson farm" that the truck and scallops had been Notwithstanding Dragon's discovery on November 10 that the truck had been stolen, the story that the truck had been obtained as part of an insurance scam did not die on November 10. Unindicted coconspirator Jeffrey Humiston testified that he was enlisted on the night of November 10 to help bury the truck. 4 He did so between 3 a.m. and 7 a.m. on November 11, without questioning why the truck was being buried. Thereafter he was told that it was part of an insurance fraud. It was days later that he learned the truck had been hijacked.
stolen. However, the time at which this knowledge became common is not clear. Bennett and Perrier apparently were at the farm only on November 9; Dragon testified that he himself was told and believed on November 9 that the truck had been obtained as part of an insurance fraud: "apparently the owners were going to collect insurance after the truck and the scallops were stolen." He testified it was not until the next day that he discovered that the truck had been hijacked; on that second day Dragon stated that he was told that the owner originally enlisted for the insurance scheme had backed out. Dragon also thought that on the day he learned that the truck had been hijacked Perrier was still at the Johnson farm. Other witnesses, however, testified that Perrier was in Burlington by the morning of November 10. In any event, Dragon testified that Bennett was not present at any conversation in which Dragon participated regarding the acquisition of the truck and the scallops and that he never heard Bennett say...
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