Hoffman-La Roche, Inc. v. Greenberg
| Decision Date | 26 August 1971 |
| Docket Number | No. 18465.,18465. |
| Citation | 447 F.2d 872 |
| Parties | HOFFMAN-LA ROCHE, INC., Plaintiff-Appellee, v. Carl GREENBERG et al., Defendants-Appellants, and William Randazzo and Brian H. Smith, Defendants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lawrence H. Eiger, Martin E. Litwin, Jerome H. Torshen, Chicago, Ill., for defendants-appellants; Litwin & Sapoznick, Jerome H. Torshen, Ltd., Chicago, Ill., of counsel.
Frank Glazer, John W. Purney, Chicago, Ill., for plaintiff-appellee; John J. Pikarski, Jr., Chicago, Ill., of counsel.
Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.
Appellee, a manufacturer of drugs, brought this civil action against six individual defendants to recover the value of merchandise allegedly stolen from its Skokie, Illinois, plant.1 During the year preceding April 27, 1964, customer shipments having an invoice value of about $24,000 were not delivered. Some of this merchandise was pilfered by employees working on appellee's shipping dock and sold to truck drivers employed by carriers doing business with appellee. There is evidence tending to prove that one of these drivers resold stolen merchandise to appellant Mirsky, and that another driver resold three or four cartons to appellants Carl Greenberg and Dave Greenberg.
Although the two drivers apparently obtained stolen merchandise from a common source, there is no evidence that they knew each other or that either knew of the other's activities. Nor is there any evidence that Mirsky knew the Greenbergs or the driver from whom they made their purchases, or vice versa.
Appellee's complaint was in two counts. The first alleged conversion and the second conspiracy. The six defendants included an employee who stole merchandise (Randazzo), two truck drivers (Campeglia, now deceased, and Smith), two drug wholesalers (Carl Greenberg and Dave Greenberg), and a retail druggist (Mirsky). The jury returned verdicts finding all defendants except Mirsky guilty on Count I and all defendants guilty on Count II. Damages were assessed by the jury as follows:
COUNT I COUNT II
Randazzo $2,660 $5,138
Smith 798 2,202
Mirsky ___ 734
Carl Greenberg 931 3,303
Dave Greenberg 931 3,303
After receiving the verdicts, the court entered an order which recited that "for the purpose of entering judgment, the verdicts on Count I and Count II are consolidated in each instance and judgment entered on behalf of the plaintiff and against defendants in the following amounts. * * *" The order then recited the respective amounts assessed by the jury against each defendant on Count II and stated that those amounts were inclusive of the amounts returned on Count I. In substance, the order appears to have merged the Count I verdicts into the larger amounts returned under Count II.
Only the two Greenbergs and Mirsky have appealed. Treating the case as though only Count II is involved, they contend: (1) that there was insufficient proof of conspiracy; (2) that evidence was improperly received; and (3) that the record indicates that an insurance company rather than appellee is the real party in interest.2
Both parties have laboriously argued the evidence, as well as the law, applicable to proving a conspiracy charge. Rather than reviewing their arguments in detail, we shall merely summarize our conclusions.
We think the evidence adequately supports the verdicts on Count I. Unquestionably some, though not all, of the undelivered merchandise was stolen by Randazzo. Unquestionably Randazzo sold some of it to Campeglia and some to Smith. The circumstances under which Campeglia transferred cartons from his truck to Dave Greenberg's car on April 23, 1964, and to Carl Greenberg's car on April 27, 1964, provide an adequate basis for the jury's inference that each of the Greenbergs knowingly acquired possession of merchandise stolen from appellee. There was adequate evidence from which the jury could properly find each of them guilty of conversion.3
On the other hand, we think the evidence of conspiracy was insufficient to support the verdicts against the three appellants on Count II.
Circumstantial evidence may provide adequate proof of conspiracy. The law does not demand proof that each conspirator knew the exact limits of the illegal plan or the identity of all participants therein. But it does require that there be a single plan, the essential nature and general scope of which is known to each person who is to be held responsible for its consequences. Repetitive or parallel transactions may establish the existence of such a joint venture, but isolated instances, explicable without reference to a continuing or broader program, may not.
"Thieves who dispose of their loot to a single receiver — a single `fence\' — do not by that fact alone become confederates; they may, but it takes more than knowledge that he is a `fence\' to make them such." United States v. Lekacos, 151 F.2d 170, 173 (2nd Cir. 1945), reversed on other grounds sub nom. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557.
Mirsky was found innocent of conversion. Even if he had been found guilty, one or more illegal purchases during a two week period would not be sufficient to charge him with knowledge of, or responsibility for, a conspiracy which appellee claims had been continuing for about a year and involved at least six participants, only one of which (Smith) was known to Mirsky. It would unduly extend the conspiracy concept to make a purchaser of a few cartons of stolen merchandise a conspirator with all others who had made purchases from intermediaries dealing with a common thief.
The case against the Greenbergs is somewhat stronger because their conversions were established and each of them...
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