U.S. v. O'Connell, s. 81-1222

• Decision Date: 01 April 1983
• Docket Number: Nos. 81-1222,81-1223 and 81-1648,s. 81-1222
• Citation: 703 F.2d 645
• Parties: UNITED STATES of America, Appellee, v. William J. O'CONNELL, Defendant, Appellant. UNITED STATES of America, Appellee, v. Richard CROSSMAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 645

703 F.2d 645

UNITED STATES of America, Appellee, v. William J. O'CONNELL, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Richard CROSSMAN, Defendant, Appellant.

Nos. 81-1222, 81-1223 and 81-1648.

United States Court of Appeals, First Circuit.

Argued Jan. 3, 1983.

Decided April 1, 1983.

Geline W. Williams, Boston, Mass., by appointment of the Court, with whom Kirk Y. Griffin, and Griffin & Higgins, Boston, Mass., were on brief, for Richard Crossman.

Henry D. Katz, Boston, Mass., for William J. O'Connell.

Paul F. Healy, Jr., Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, ALDRICH and BREYER, Circuit Judges.

BREYER, Circuit Judge.

After a jury trial, appellants William O'Connell and Richard Crossman were convicted of conspiring to receive and possess, and of receiving and possessing, goods (namely, jewelry) stolen from an interstate air carrier shipment. 18 U.S.C. Secs. 371, 659. Crossman was also convicted of perjury before the grand jury investigating the theft. 18 U.S.C. Sec. 1623. And, after a separate trial, Crossman was convicted of forcibly assaulting the officer who served him with a grand jury subpoena. 18 U.S.C. Sec. 111. O'Connell and Crossman appeal, primarily on the ground of insufficient evidence. After examining their arguments and the record, we affirm their convictions.

I

We first summarize the evidence presented on the "stolen goods" counts. The following facts are not in dispute. On July 30, 1980, two Hong Kong firms sent three packages of jewelry worth more than $60,000 to Town & Country Jewelry Co. in Revere, Massachusetts. Northwest Airlines flew the packages to Seattle where they were supposed to be transferred to another Northwest flight, which would take them to Boston via Washington, D.C. Town & Country did not receive the jewels. O'Connell worked as a cargo handler for Eastern Airlines at Logan Airport, Boston; Crossman was a friend of O'Connell.

The government tried to show that O'Connell and Crossman stole the jewels from Logan. Its evidence that they at least unlawfully conspired to (and did) receive and possess the jewelry fell into two categories. First, the government introduced Northwest documents (such as a cargo manifest) and testimony about Northwest's "valuable cargo" handling practices to show that the jewels reached Logan on July 31, 1980. Second, the government presented detailed testimony by Toni Ann Jozapaitis, Crossman's former girlfriend.

Jozapaitis testified about both what she saw Crossman and O'Connell do between July 31 and August 2 and about what she heard them say. She testified that at 11:30 p.m. on July 31 O'Connell and Crossman met in the apartment that she and Crossman shared. They spoke briefly, exchanged a green piece of paper, and left. Several hours later Crossman returned, and told Jozapaitis that he had gone to Charlestown to sell something for O'Connell. He showed her a green piece of paper, which he called a bill of lading; it had $5,000 written on it.

Jozapaitis further testified that the following morning, August 1, Crossman told her he was going to sell jewelry that O'Connell had gotten at the airport. He said that the proceeds would be divided among Crossman, O'Connell and two other men from the airport. Crossman then left for Charlestown, while Jozapaitis, who was pregnant, went to Beth Israel Hospital for a checkup. As she left the hospital, she received a note from Crossman with a $20 bill and a message to take a cab home. She called him, and he told her not to worry about a $20 cab fare because he had a lot of money.

When Jozapaitis returned home Crossman showed her cash which he said amounted to $2,000. He said it was from the sale of jewelry in Charlestown. He then showed her $21,000 wrapped in foil in the refrigerator. Shortly thereafter, O'Connell arrived and she saw Crossman give the $21,000 to O'Connell. That evening she and Crossman went to an appliance store in Revere, where Crossman paid $1,000 cash for a refrigerator, a washing machine, and a portable television set.

Jozapaitis said that the next night, August 2, she heard Crossman ask O'Connell whether the jewel theft had led to an investigation at the airport. O'Connell replied that it had not because the jewels were sold before anyone knew they were missing. O'Connell complained that they should have received more money because the bills of lading for the separate packages added up to more than $68,000.

In addition to Jozapaitis' testimony, the government introduced other evidence showing that Eastern Airlines Cargo crews unloaded Northwest Cargo; that O'Connell was at work as a cargo handler for Eastern between 2:20 p.m. and 10:20 p.m. on July 31; that O'Connell had financial problems; that Crossman earned $450 per week as a truck driver; and that Crossman indeed paid $1,000 cash for the appliances that Jozapaitis mentioned.

In the face of this evidence Crossman and O'Connell testified, denying any involvement in the jewels' disappearance. O'Connell introduced alibi testimony to the effect that he went directly from work on July 31 to the Turk Lounge where he stayed from 10:30 p.m. until 2:00 a.m. The defendants also vigorously attacked the reliability of the Northwest "routine procedure" evidence. And, they tried to impeach Jozapaitis by showing she drank heavily and had a violent and unstable relationship with Crossman.

II

1. Appellants argue that their convictions for receiving and possessing stolen goods (and the related conspiracy convictions) should be set aside on grounds of insufficient evidence. We do not agree. Although appellants' attacks on the "routine procedure" evidence seriously weaken its probative value, that evidence does not stand alone. Despite their efforts to impeach Jozapaitis' credibility, the jury could well have believed her. See United States v. Hinds, 662 F.2d 362, 366 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1720, 72 L.Ed.2d 140 (1982); United States v. Anderson, 509 F.2d 312, 331 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). And, if believed, her evidence is damning.

Appellants rely upon Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), which holds that an admission, like an extrajudicial confession, must have corroboration to support a conviction. The government argues that when read in light of the companion case of Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), Opper's corroboration requirement is limited to admissions made after the completion of the crime and made to a government agent. This question has split the courts. Compare United States v. Head, 546 F.2d 6, 9 (2d Cir.1976) (dictum) (corroboration may not be required for admissions made during commission of crime), cert. denied sub nom. Wheaton v. United States, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977), and Kaneshiro v. United States, 445 F.2d 1266, 1270 (9th Cir.) (corroboration not required for admission made to "unwitting accomplice"), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971), with United States v. Hallman, 594 F.2d 198, 201 (9th Cir.) (dictum) (admission during commission of crime must be corroborated), cert. denied, 444 U.S. 828, 100 S.Ct. 54, 62 L.Ed.2d 36 (1979), and United States v. Northrup, 482 F.Supp. 1032, 1038 (D.Nev.1980) (admission to acquaintance may require corroboration unless it has special indicia of reliability). However, we need not decide the question, for even if we assume Opper applies, there is adequate independent corroboration. See Bryson v. United States, 238 F.2d 657, 662 (9th Cir.1956), cert denied, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34 (1957).

Contrary to the appellants' argument, what must be corroborated is not the whole of Jozapaitis' testimony. If eyewitness testimony about, say, a defendant's shooting of a gun is admissible and corroborative, that testimony does not suddenly become less admissible or corroborative or itself in need of corroboration simply because the eyewitness also heard the defendant confess. Rather, Opper requires corroboration of the admissions about which Jozapaitis testified. And, there was ample corroboration. The fact that the jewels were sent to Boston is some evidence they arrived in Boston. Their unexplained disappearance is some evidence they were stolen. The fact that O'Connell worked at Logan on the cargo crew at the relevant time is some evidence of opportunity. The existence of Crossman's financial problems is some evidence of motive. The appellants' comings and goings, as reported by Jozapaitis, Crossman's keeping large sums of money wrapped in foil in the refrigerator, his sudden large purchases, his ordinary salary are all evidence of some surreptitious activity and guilty knowledge on their part. And, together with the circumstances of O'Connell's employment, they strengthen the inference that the jewels were stolen.

This corroborative evidence, of course, need not be sufficient standing alone to establish guilt; "[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth." Opper v. United States, 348 U.S. at 93, 75 S.Ct. at 164; accord Smith v. United States, 348 U.S. at 156, 75 S.Ct. at 199. It is clear beyond dispute that the corroborative testimony offered by Jozapaitis, when taken together with the other evidence introduced by the prosecution, was more than sufficient for a jury to infer that the admissions were true. Those admissions, in turn, were certainly sufficient in conjunction with the rest of the evidence for a jury reasonably to conclude that the elements of the offenses had been established beyond a reasonable doubt.

2. The same jury that convicted Crossman and O'Connell on the stolen goods counts also convicted Crossman of perjury. It found that he...