U.S. v. DiMaria
| Decision Date | 06 February 1984 |
| Docket Number | No. 465,D,465 |
| Citation | 727 F.2d 265 |
| Parties | , 14 Fed. R. Evid. Serv. 1833 UNITED STATES of America, Appellee, v. Leonard DiMARIA, Appellant. ocket 83-1292. |
| Court | U.S. Court of Appeals — Second Circuit |
Norman A. Olch, New York City, for appellant.
Diane F. Giacalone, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., L. Kevin Sheridan, David V. Kirby, Asst. U.S. Attys., Brooklyn, N.Y.), for appellee.
Before FRIENDLY, MANSFIELD and KEARSE, Circuit Judges.
Appellant Leonard DiMaria was convicted in the District Court for the Eastern District of New York, after trial before Judge Bramwell and a jury, on three counts of an indictment charging, respectively, possession of cigarettes stolen while moving in interstate commerce in violation of 18 U.S.C. Sec. 659 (Count III), possession of contraband cigarettes in violation of 18 U.S.C. Sec. 2342 (Count IV) 1 and conspiracy to commit both substantive offenses in violation of 18 U.S.C. Sec. 371 (Count I). He was sentenced to ten years imprisonment on Count III and to five years imprisonment on Counts I and IV, the sentences to run concurrently. 2
The Government's proof established the following: On February 9, 1981, John Bott drove a tractor-trailer containing 950 cases of Philip Morris cigarettes worth over $200,000, from Richmond, Virginia, toward its ultimate destination in Jersey City, New Jersey. One night during the course of the trip Bott pulled into a rest area on the New Jersey Turnpike and went to sleep in the cab of his truck. He was awakened by a man who placed a gun to his head and ordered him to surrender his rig. Bott was removed from the cab of the tractor and placed in the rear of a van. When, several hours later, he was released from the van, his tractor-trailer and its load of cigarettes were gone.
Shortly thereafter Robert Russell, a long-time associate of one of DiMaria's co-defendants, Anthony Billeci, received a telephone call from another co-defendant asking him to go to the Tunnel Diner in Jersey City. Russell there met Irving Birnbaum, Anthony Billeci and John Gouker, all co-defendants, and a fourth unidentified man. They discussed using a storage yard at the Walsh Trucking Company in Jersey City to store a stolen trailer that Billeci and Birnbaum had obtained until they could find a buyer for the load. Gouker made arrangements with John DiRoma, the yard manager, also a co-defendant, to use the yard of the Walsh Trucking Company in Jersey City.
On February 14 the FBI began a surveillance of the yard and two refrigerated trucks therein, which bore the logo IRL on the side, and the New York City Police Department began surveillances on Billeci and Birnbaum in response to information that a truckload of cigarettes had been hijacked. At approximately 8:50 p.m. on February 17, the City detectives observed Billeci and Birnbaum arrive at a social club on Glenwood Road in Brooklyn that DiMaria frequented. After an hour Billeci and Birnbaum walked outside the club with DiMaria and an unidentified male. After a brief conversation Billeci and Birnbaum left in Birnbaum's Cadillac while DiMaria and the unidentified man left in another car.
Late the following evening, February 18, Billeci and Birnbaum again drove to the social club. Over the next two hours, until about 2:00 a.m., Billeci, Birnbaum and DiMaria repeatedly left the club, talked while walking up and down the sidewalk, and then reentered the club.
On the afternoon of the next day, February 19, co-defendant Anthony Apice rented a Hertz tractor. Two men drove the tractor to the Walsh Trucking yard and when unable to open the gate, drove three blocks away where Billeci and Birnbaum, in the latter's Cadillac, pulled alongside. The men returned to the Walsh yard, unlocked the gate, and unsuccessfully attempted to connect the tractor to one of the IRL trailers. Billeci and Birnbaum arrived in time to see The Hertz tractor and the IRL trailer were then driven to the Best Deli in Brooklyn, where the drivers were replaced by another pair who drove the rig to the Brooklyn Terminal Market. The rig was followed by an Oldsmobile which had been seen near DiMaria's social club on the two evenings when he met with Billeci and Birnbaum. In the storage yard at the Brooklyn Terminal Market, the tractor was unhitched from the IRL trailer and was driven back to the Best Deli where the new crew left. Billeci's and Birnbaum's men replaced them, and the tractor, Billeci and Birnbaum left the area. The trailer remained at the yard, being guarded through the night by the Oldsmobile and its unidentified occupant.
this debacle. The second trailer was then attached to the Hertz tractor and was pulled from the yard. Billeci locked the gate, and he and Birnbaum left.
On the next day, Friday, February 20, the second IRL trailer arrived at the Terminal Market and was positioned near the first. An "S & R" van leased by Richard Lustparten entered the yard and approached the trailers. Cases of cigarettes were loaded from the trailers into the van. Early in the evening co-defendants Sal Miciotta and Joseph Monteleone arrived at the market and maintained guard over the two trailers throughout the night. The denouement came about 4:00 p.m. on Saturday, February 21. A white Cadillac led a Barn rental van into the market. Each vehicle carried two passengers. DiMaria got out of the Cadillac and directed the van as it backed up into the space between the two IRL trailers. The four men loaded the van with cigarettes from the trailers; one case was cut open on the loading dock. DiMaria and Miciotta started to drive away in the Cadillac and the two other men prepared to depart in the Barn van. The FBI agents stopped both vehicles. They found in the Cadillac a half-case in the trunk. A search of Miciotta revealed a number of keys which fit the locks of the doors of the two IRL trailers and three tally sheets, one of which read
and a part of the bill of lading taken from John Bott containing a computer print-out listing of the contents of the original trailer as it had left Philip Morris in Richmond. Execution of search warrants recovered 670 cases of assorted Philip Morris cigarettes from the trailer, and 45 cases of various brands from the Barn rental van.
Joseph Brederhoft, a Special Agent of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department, testified to the meaning and application of the statute in regard to contraband cigarettes, see supra note 1. A case contains 12,000 cigarettes; hence the statute applies to shipments in excess of five cases. All of the continental states require that cigarettes have some sort of tax stamps applied. "Bootleg cigarettes" are those purchased in a low-tax state, e.g., North Carolina, and then transported to a high-tax state, e.g., New York. In the nine years in which he had been involved in tobacco investigations, he had never become aware of a seizure of bootleg cigarettes in a quantity over 50 cases or of a seizure of contraband cigarettes as large as that here, when the cigarettes had not been stolen; when cigarettes recovered by the agency bore no tax stamps at all, these were invariably stolen. It was stipulated that Philip Morris sells cases of untaxed cigarettes only to properly licensed entities and that the load here in question consisted of untaxed cigarettes.
Three of the four points raised by DiMaria require little discussion. To begin the claim of insufficiency of the evidence to show DiMaria's possession and guilty knowledge is specious. We observed in United States v. Monica, 295 F.2d 400, 402 (2 Cir.1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962), that "[l]ike any other element in the prosecution's case, possession need not be proved by direct evidence but may be established by proof permitting an inference to be drawn beyond reasonable doubt", and each element of proof "gain[s] color" from others, id. at 401. See also United States v. Tramunti, 500 F.2d 1334, 1338 (2 Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974); United States v. Mohabir, 624 F.2d 1140, 1144 (2 Cir.1980). The evidence, which we have recited in tiresome detail, amply permitted inferring beyond a reasonable doubt that the possession of the cigarettes by others was in DiMaria's behalf at least from the discussion at DiMaria's social club on the night of February 18. Indeed, so far as concerned the case of cigarettes discovered in DiMaria's Cadillac, the evidence justified a finding of possession directly by him. Once a jury found possession beyond a reasonable doubt, the Government was entitled to the benefit of the principle, stated in Wilson v. United States, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090 (1896):
Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence.
See Barnes v. United States, 412 U.S. 837, 843-44, 93 S.Ct. 2357, 2361-62, 37 L.Ed.2d 380 (1973).
DiMaria's second point concerns a remark in the prosecutor's rebuttal summation. After telling the jury that both DiMaria and the Government were entitled to its fair consideration, the prosecutor said that John Bott, the driver of the hijacked truck, was likewise entitled to this. He stated:
John Bott testified that he had a gun put to his head and a quarter of a million dollars were--of cigarettes were stolen from him at gunpoint. And I suggested in my opening and I suggest again, that there is only one reason that that gun was put to his head and that's because someone was prepared to buy those stolen cigarettes, and that someone, Ladies and Gentlemen, the evidence has shown was Leonard DiMaria.
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