Nassif v. United States

Decision Date18 January 1967
Docket NumberNo. 18290,18292.,18290
Citation370 F.2d 147
PartiesRudolph J. NASSIF, Appellant, v. UNITED STATES of America, Appellee. Paul Otto SCHMADEBECK, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Keith D. Kennedy, Minneapolis, Minn., for appellant Rudolph J. Nassif, Case No. 18290 and filed printed brief.

John A. Cochrane, St. Paul, Minn., for appellant Paul Otto Schmadebeck, Case No. 18292 and filed printed brief.

Patrick J. Foley, U. S. Atty., Minneapolis, Minn., for appellee and filed printed brief.

Before VOGEL, Chief Judge, VAN OOSTERHOUT and LAY, Circuit Judges.

Rehearing Denied in No. 18290 January 18, 1967.

LAY, Circuit Judge.

Defendants Schmadebeck, Nassif, Rumpel and Buchanan were jointly indicted and tried to a jury on their not guilty plea to a two-count indictment against them.

Count I charges a violation of Tit. 18 U.S.C. § 371 for conspiracy to steal, carry away, take away and conceal with intent to convert goods out of interstate commerce. Count II charges a violation under Tit. 18 U.S.C. § 659 that the defendant did steal, unlawfully take and carry away with the intent to convert. It is alleged in the indictment that the named defendants worked with Lawrence James Fondow, not a defendant, to commit these acts. Fondow pleaded guilty to a conspiracy count. His testimony was the main thrust of the government in implicating the others.

All defendants were found guilty as to both counts with the exception of Rumpel who was acquitted by the jury.1 The lower court granted defendant Nassif a new trial on Count II. He appeals his conviction of Count I, whereas defendant Schmadebeck appeals his conviction on both Counts I and II. Appellant Schmadebeck was sentenced four years under a general sentence for both counts. Appellant Nassif was sentenced to 18 months under Count I.

The evidence shows appellants were business partners in a company called the Ostlund Construction Company in Minneapolis, Minnesota. The company's work involved boarding up stores and buildings after fires. In the same building Schmadebeck operated Labor Pool, Inc. Ostlund Construction Company utilized laborers operating out of the Labor Pool, Inc. Next door to the Ostlund Construction Company was Dolly's Bar, owned by Nassif.

The accomplice Fondow, an employee of the Labor Pool, testified on the morning of May 5, 1965, at 7:30 a. m. he met Schmadebeck and agreed to hijack a load of liquor or furniture. An hour later they met Nassif at the bar and Schmadebeck asked him what he would pay for a "load of liquor". Nassif replied, "About $3,000.00."

Schmadebeck arranged with Fondow and Buchanan, another employee of the Labor Pool, to hijack a trailer of goods. The trailer was stolen by Buchanan and Fondow with a tractor rented by Schmadebeck from the yard at Trucking, Inc. in Minneapolis. It contained merchandise shipped by "Gamble-Skogmo" in Chicago to "Gamble-Skogmo" in the Twin Cities. Schmadebeck's master plan involved the transfer of goods into three rented trucks. Examination of the Hertz rental agreements evidences the rental was charged to the partnership of Nassif and Schmadebeck, the Ostlund Construction Company. The transfer took place in the early morning hours of May 6, at Glaco Twin Cities, a company at which defendant Rumpel worked. After the goods were loaded they were taken to Mankato, stored there and two days later returned to Minneapolis to be sold. The goods were represented to be salvage goods from a tornado and flood area in Mankato. Schmadebeck received a check for $1,500.00 (Ex. 8) made payable to Ostlund Construction Company, for the sale of the goods from Gordon Braastad, a salvage dealer. Schmadebeck deposited this in the Company account and wrote a check ($231.00) on the account to Fondow in payment for him driving the truck. Nassif's further alliance to the scheme was shown through various statements made by him at different intervals in Fondow's presence: "take inventory of the stuff"; "where are the goods?"; "police know every time we turn"; "fellow * * * to take load off our hands"; and "hurry up * * * party wants to buy the stuff." Nassif's giving Schmadebeck the telephone number of the buyer on a slip of paper was certainly an incriminating factor. None of this was denied.

There was substantial evidence convicting both Buchanan and Fondow, as well as Schmadebeck. Several persons were hired to help load the Hertz trucks. All verified the participation of the three men. The rental certificates of the Hertz trucks were placed in evidence with Schmadebeck's and Buchanan's signatures. The manager of the Martin Building in Mankato was called concerning his dealings with Schmadebeck and the storage of the goods. The men who helped load the trucks at Mankato testified to the presence of Schmadebeck and his instructions concerning the goods.2 These men all denied knowledge of the fact that the goods were actually stolen.

The merchandise consisted of various and sundry goods, such as pillow cases, blankets, lamps, sheets, etc., which came from Gamble-Skogmo in Chicago, Illinois. The trailer was put on a railroad semi-carrier and brought to St. Paul by train. The subsidiary of the Milwaukee Railroad took the van off the railroad car (this was called the Milwaukee Motor Transportation Company) and left it at the yard of Trucking, Inc., who was to deliver it to Gamble-Skogmo (the consignee) in Minneapolis the next day.

Nassif's first point of error is aimed at the lower court's finding of insufficient evidence to support the substantive count of aiding and abetting and therefore it "perforce is insufficient for a showing of the existence of a prior conspiracy." Such argument is without substance. Where the acquittal of a substantive count does not constitute a determination that the alleged overt acts were not committed, the acquittal does not preclude a conviction on the conspiracy count. Aggers and Coates v. United States, 8 Cir., 366 F.2d 744; Herman v. United States, 5 Cir., 289 F.2d 362, 369; United States v. Hickey, 7 Cir., 360 F.2d 127, at 139. Appellant Nassif denies he had any connection with the overt acts charged in the indictment. It is a fundamental principle in the law of conspiracy that a particular defendant need not commit any specific alleged overt act as long as one of his co-conspirators was involved in the overt act. Braverman v. United States, 317 U.S. 49 at 53, 63 S.Ct. 99, 87 L.Ed. 23. In the present case, eleven overt acts are charged. The jury's conviction of co-conspirators Schmadebeck and Buchanan on the substantive count establishes that the overt acts were committed.

It is likewise urged Nassif's conduct comes after the theft and is not proof of his having entered into the conspiracy. Argument is made that Nassif's alleged role relates only to conversion; that the statute relates to stealing only.3 The indictment under Count I included not only the conspiracy to "steal" but also "take away, carry away and conceal" with "intent to convert". Defendant overlooks (1) the object of this conspiracy was one for illicit gain; McDonald v. United States, 8 Cir., 89 F. 2d 128;4 (2) the conspirator need not know of or participate in all activities of the conspiracy. A conspiracy is not "born full-grown." It grows by "successive stages." "Secrecy and concealment" are its main ingredients. The law does not require knowledge of all its details, otherwise "conspirators would go free by their very ingenuity." Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 256, 92 L.Ed. 154.

In Ingram v. United States, 360 U.S. 672 at 679, 79 S.Ct. 1314, at 1319, 3 L.Ed.2d 1503, Mr. Justice Stewart, said:

"The court\'s decisions in Grunewald v. United States, 353 U.S. 391 77 S.Ct. 963, 1 L.Ed.2d 931; Lutwak v. United States, 344 U.S. 604 73 S.Ct. 481, 97 L.Ed. 593; and Krulewitch v. United States, 336 U.S. 440 69 S.Ct. 716, 93 L.Ed. 790, do not, as petitioners appear to contend, prevent the jury from treating this subsidiary objective as an element of the conspiracy. Those cases hold only that the life of the conspiracy cannot be extended by evidence of concealment after the conspiracy\'s criminal objectives have been fully accomplished. `* * * A vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of coving up after the crime.\' Grunewald v. United States, supra 353 U.S., at 405 77 S.Ct. at page 974." (Our emphasis).5

Where it is obvious the parties have agreed to take certain steps after the theft was consummated, the conspiracy can be found to continue. See United States v. Hickey, supra. Contrary to appellant's contention, a coconspirator may even become a member of the conspiracy without being in on it at its inception. One need only knowingly contribute his efforts in furtherance of it. Even if we construe the evidence that Nassif entered the conspiracy at a later date, he took the conspiracy as he found it. If he only participated in arranging the sale of the merchandise (according to Fondow), he still would adopt the previous acts and declarations of his fellow conspirators. Phelps v. United States, 8 Cir., 160 F.2d 858; Hernandez v. United States, 9 Cir., 300 F.2d 114, United States v. Dardi, 2 Cir., 330 F.2d 316. We said in Phelps:

"* * * And, of course, a defendant can join a conspiracy at any time and may be found to have done so when, with knowledge of its existence, he has undertaken to further its design." 160 F.2d at 868.

However, the evidence is clear that Nassif was implicated in the origination of plans. We cannot overlook the "innocent" conversation at Dolly's Bar on the morning of May 5. This assumes prominence with Schmadebeck's early morning telephone call to Nassif (3:00 a....

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