709 F.2d 294 (5th Cir. 1983), 82-3758, United States v. Ferro

Docket Nº:82-3758.
Citation:709 F.2d 294
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Einar J. FERRO, Jr., Defendant-Appellant.
Case Date:June 27, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 294

709 F.2d 294 (5th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,


Einar J. FERRO, Jr., Defendant-Appellant.

No. 82-3758.

United States Court of Appeals, Fifth Circuit

June 27, 1983

Page 295

Bernard E. Burk, Jacob Taranto, III, New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Robert T. Myers, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.


INGRAHAM, Circuit Judge:

In September 1982, Einar J. Ferro, Jr., was convicted by a jury of a three-count indictment for his role in the theft of two Zim Line containers. All but six months of defendant's three concurrent five-year sentences were suspended and defendant was placed on probation for three years. On appeal Ferro primarily attacks the submission of an inference instruction, the failure to submit a "possession" definition, and the admission of coconspirators' statements. Concluding that the district court correctly presented the law in the instructions and properly admitted the coconspirators' statements, we affirm the conviction.

Appellant complains of the inference instruction, its wording, and the failure to provide other requested instructions. To determine whether the jury instructions adequately stated the law, we review the instructions as a whole in the context of the entire trial. See United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975); United States v. Graves, 669 F.2d 964, 970-71 (5th Cir.1982). If the charge is accurate and correct, we leave to the district court's discretion the amplification necessary for that particular jury in light of the whole trial. United States v. Bayer, 331 U.S. 532, 536, 67 S.Ct. 1394, 1396, 91 L.Ed. 1654 (1947). Consequently, we recount the evidence as a backdrop for the court's charge and admission of coconspirators' statements.

Ferro was working as clerk on the New Orleans riverfront when another clerk, Ernest Schmolke, contacted him about the possibility of stealing merchandise from the Erato Street Wharf. As clerks, their primary duties and responsibilities involved handling cargo that arrived at the New Orleans port of entry. Unknown to Ferro, Schmolke had also been in contact with Robert Guy, a wholesale rental dealer in Picayune, Mississippi, about the same theft. To obtain information about incoming shipments, Schmolke and Ferro contacted Dale Luke, a clerk at the Erato Street Wharf. When two Zim Line containers arrived at the wharf, Luke informed Schmolke of the container numbers and their contents, 1,344 cases of wine and 62 road equipment tires. Schmolke relayed this information to Guy and Ferro and the group decided to steal those containers. Schmolke then arranged for two drivers to load the containers on trucks at the Erato Street Wharf.

On the morning of August 12, 1981, Schmolke met the drivers outside the wharf and gave them three bills of lading. The extra bill of lading was to be used if one of the containers was inaccessible. The containers were loaded onto the trucks and Schmolke instructed the drivers to meet him at Irish Bayou. He then telephoned Guy and Ferro about the rendezvous point. After the truck drivers arrived at Irish Bayou, where Schmolke, Guy, and Ferro were already waiting, the five began the trip to Picayune, where the containers

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would be stored and the goods sold. To avoid weigh stations and enforcement officials, the group traveled back roads in a caravan, with Guy and Schmolke leading and Ferro trailing the trucks. Once the containers were in Guy's warehouse, the three opened them and examined their contents. Although Guy had primary responsibility for selling the stolen merchandise, all three agreed to find buyers for it. Because of the poor quality of the wine and the unusual size of the tires, Guy was unable to sell the goods. Consequently, Ferro and Schmolke went to the warehouse a few months later to check on the wine and determine the size of the tires. Eventually, Customs discovered the containers and arrested the three.

On June 4, 1982, Ferro, Schmolke, and Guy were indicted by a grand jury of theft from the Erato Street Wharf, 18 U.S.C. Sec. 659, 1 unlawful removal of goods from Custom's custody, 18 U.S.C. Sec. 549, 2 and interstate transportation of stolen goods, 18 U.S.C. Sec. 2314...

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