U.S. v. Flaherty, Nos. 80-1782

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore ALDRICH, CAMPBELL and BOWNES; BOWNES
Citation668 F.2d 566
PartiesUNITED STATES of America, Appellee, v. Thomas E. FLAHERTY, Defendant, Appellant. UNITED STATES of America, Appellee, v. James R. KEARNS, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Stuart H. WAHL, Defendant, Appellant. to 80-1784.
Decision Date12 November 1981
Docket NumberNos. 80-1782

Page 566

668 F.2d 566
UNITED STATES of America, Appellee,
v.
Thomas E. FLAHERTY, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
James R. KEARNS, Jr., Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Stuart H. WAHL, Defendant, Appellant.
Nos. 80-1782 to 80-1784.
United States Court of Appeals,
First Circuit.
Argued Sept. 10, 1981.
Decided Nov. 12, 1981.

Page 574

Nelson S. Baker, Boston, Mass., by appointment of the Court, for defendant, appellant Thomas E. Flaherty.

Jeanne Baker, Cambridge, Mass., with whom Stephanie A. Cleverdon, and Baker & Fine, Cambridge, Mass., were on brief, for defendant, appellant James R. Kearns, Jr.

William A. Brown, Boston, Mass., by appointment of the Court, with whom Brown & Prince, Boston, Mass., was on brief, for defendant, appellant Stuart H. Wahl.

Frank J. Marine, Atty. Dept. of Justice, Washington, D.C., with whom Edward L. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Thomas E. Flaherty, James R. Kearns, Jr., and Stuart H. Wahl appeal jury convictions of conspiring to receive and possess a stolen interstate shipment of beef in violation of 18 U.S.C. § 371 and of receiving and possessing a stolen interstate shipment of beef in violation of 18 U.S.C. § 659. The appellants were also indicted for aiding and abetting under 18 U.S.C. § 2, but were acquitted on that charge. Seven issues are presented for review: 1

1. The sufficiency of the evidence to support the convictions of appellants;

2. Should the indictment have been dismissed because a witness perjured himself before the grand jury;

3. Whether appellants were deprived of a fair trial because of the Government's alleged failure to comply with discovery orders and to disclose allegedly exculpatory evidence prior to trial;

4. Whether statements of the prosecutor in his opening statement and closing argument deprived appellants of a fair trial;

5. The district court's instructions to the jury;

6. The procedure mandated by the district court for exercising peremptory challenges; and

7. Whether the fact that the trial judge remained in the presence of the jury in the absence of the parties and their attorneys requires a reversal.

We review the facts in the light most favorable to the Government. United States v. Benmuhar, 658 F.2d 14, 16 (1st Cir. 1981); United States v. Ciampaglia, 628

Page 575

F.2d 632, 636 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980). The principal witnesses for the Government, Joseph Sullivan, John Farrell, and Ralph Booth Gunschel, were all accomplices of defendants.

The case started in early June, 1977, when Thomas Richard Marr, a truck driver, picked up a load of thirty-nine or forty thousand pounds of meat in Wichita, Kansas, for delivery to Hartford, Connecticut, and Brockton, Massachusetts. After delivering part of the load in Hartford on the afternoon of June 13, Marr proceeded to Brockton. Because delivery could not be made to the Brockton consignee that day, Marr and his wife, who had accompanied him, spent the night at the Holiday Inn and left the truck parked in the Holiday Inn parking lot, which is next to the Westgate Mall in Brockton.

Later that evening, Sullivan and Farrell passed the Holiday Inn on their way home after spending a hitherto unfruitful evening looking for trailer-truckloads to steal. The pair spotted a number of trucks in the Holiday Inn parking lot and determined to investigate further. Sullivan, who was driving, circled the parking lot, stopped near the trucks, and Farrell got out. The two had noticed that one of the trailer-trucks, Marr's truck, as events turned out, had a refrigeration unit. Farrell opened the side door of the trailer and discovered several white boxes marked "Beef." He reported this to Sullivan, who wanted to know more precisely what the boxes contained. Sullivan parked the car in a corner of the lot out of view of anyone inside the Holiday Inn and went over to the trailer-truck. He opened the side door, climbed into the trailer, and managed to pull out one of the boxes near the top. The box was very heavy, and Sullivan fell out of the trailer as he tried to carry it; he dropped the box and let it slide down a small hill to where the car was parked. Sullivan and Farrell left immediately for Sullivan's house in Stoughton, Massachusetts, without opening the box.

They carried the box into the kitchen and on opening it found that it contained tenderloin tips. Sullivan then telephoned Stuart Wahl to discuss the discovery. 2 He told Wahl that there was a load of meat at the Westgate Mall in Brockton that they had a good opportunity to steal. (It was stipulated at trial that the value of the meat was $16,000.) If they succeeded in doing so, Sullivan asked Wahl, could Wahl find a buyer for it? Wahl replied that he did have an outlet and could sell the beef for 65 percent of its wholesale price. Wahl also told Sullivan that if he and Farrell were able to steal the truck, they should take it to the "drop" site in Avon, Massachusetts.

Sullivan had had several conversations with Wahl earlier in 1977. In the late winter or early spring, Sullivan contacted Wahl about obtaining a "stash" or "drop" site for concealing stolen trucks. Wahl made some inquiries and found "drops" for Sullivan at the Ansel Gurney House, a restaurant and gift shop in Marion, Massachusetts, and at a warehouse in the Avon Industrial Park in Avon, Massachusetts. Sullivan visited and approved both locations. At the Ansel Gurney House he met the owner, Gunschel. In late April or early May, Wahl arranged with Gunschel to lease the freezer and stored a load of fish in it. He paid Gunschel $1,000 in cash for the rental.

After the telephone call to Wahl, Sullivan and Farrell returned to the parking lot of the Holiday Inn. Sullivan parked the car, and, after a coin toss to determine who would drive the trailer-truck away, Farrell went over to the truck. He had with him a pair of gloves, a bar, a screwdriver, and a "slammer" or "dent popper," a device used to pull the ignition system out of a car or truck so that it can be started without an ignition key. Farrell applied his tools and started the truck. While Farrell was working, Sullivan watched the entrance to the parking lot to make sure no one surprised them. After idling the engine to build up

Page 576

air pressure in the brakes, Farrell drove the truck out of the lot. Sullivan stayed behind for a few minutes to see whether the theft had been detected.

They both took Route 27 to Route 24, where Sullivan caught up with Farrell. They then proceeded to the "drop" site at the Avon Industrial Park, where it was planned to leave the truck. Sullivan arrived at the warehouse first and was dismayed to learn that police or security men were patrolling the area and that the door to the warehouse was broken so that it could not be opened and the trailer-truck could not be parked inside the building. When Farrell arrived, both men attempted to open the door, but to no avail. Concerned about the patrol, Sullivan and Farrell decided to leave the truck next to the warehouse and to go home.

As to the next event, the testimony diverged somewhat. Farrell testified that on the way home from the Avon warehouse Sullivan stopped at a pay telephone to call Wahl. According to Farrell, Sullivan told Wahl that they had not been able to get the trailer inside the warehouse, that they had left the truck outside, and that it was up to Wahl to get the trailer-truck into the warehouse. In addition, Farrell testified that after he had picked up his car at Sullivan's house and gone home, Sullivan telephoned him and told him that he had just spoken to Wahl on the telephone and that he was going to meet with Wahl the next day to try to open the Avon warehouse doors. Sullivan's testimony contained no reference to these telephone conversations.

Sullivan did testify, however, to receiving a telephone call from Wahl early the next morning, June 14, inquiring about the success of the theft. Sullivan told him that they had had problems, and Wahl suggested that rather than discuss them on the telephone he meet him at 9:00 A.M. at his office in Stoughton, Massachusetts. Sullivan complied and met with Wahl and another man. At the meeting, Sullivan told Wahl about the problem with the door to the warehouse and asked Wahl to have it fixed, relying on his understanding with Wahl that he would have continuous access to the warehouse. Sullivan's testimony is not entirely clear as to Wahl's response; Wahl said in effect that he would try to have the door fixed but that because the owner of the warehouse did not know that stolen goods were moving in and out of it, Sullivan would have to move the truck. He suggested using the other prearranged "drop" site in Marion, Massachusetts.

Sullivan then telephoned Farrell at work to tell him that the doors could not be opened and that Wahl wanted the truck moved from the Avon warehouse. According to Farrell, Sullivan also told him that he was going to see William Daggett about finding someone else to move the truck; at this point neither Farrell nor Sullivan wanted to drive it. Farrell felt that moving the truck was Wahl's problem.

Meanwhile, Wahl had gone to the Avon warehouse to try to fix the door, but was unsuccessful. He then went to Sullivan's house at about 10:00 or 11:00 A.M. on June 14 and repeated his demand that the truck be moved.

Sullivan then telephoned Daggett at his bar, the Geneva Cafe, in Dorchester, Massachusetts, and arranged to meet with him an hour later. Sullivan met with Daggett at about noon, explained about the theft and the problem of moving the truck and asked Daggett to find a driver to drive the truck to Marion. Daggett said he would check around.

Sullivan spent the afternoon at his mother's house and returned to Geneva Cafe later that...

To continue reading

Request your trial
139 practice notes
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...against others who were involved in a different and separate conspiratorial scheme. Dwyer, 843 F.2d at 62; United States v. Flaherty, 668 F.2d 566, 582 (1st Cir.1981). The prejudice we must guard against, therefore, is evidentiary spillover resulting from trying defendants en masse for dist......
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...to commit the substantive criminal offense which was the object of their unlawful agreement. Id.; accord United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981). Due to the clandestine nature of criminal conspiracies, the law recognizes that the illegal agreement may be either "express ......
  • Oses v. Com. of Mass., Civ. A. No. 89-0487-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 7, 1991
    ...v. Fair, 732 F.2d 245, 249 (1st Cir.), cert. denied, 469 U.S. 1017, 105 S.Ct. 430, 83 L.Ed.2d 356 (1984); United States v. Flaherty, 668 F.2d 566, 599 (1st Cir.1981). Even those comments which do fit this description, however, may be rendered "harmless" by an immediate and forceful curative......
  • U.S. v. Smith, Nos. 82-1678
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 17, 1984
    ...the evidence was ample to prove the essential elements of a conspiracy charge against each of the defendants. United States v. Flaherty, 668 F.2d 566 (1st Several defendants also raise procedural objections to their convictions. For example, defendant Joanne Amado contends that the trial co......
  • Request a trial to view additional results
138 cases
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...against others who were involved in a different and separate conspiratorial scheme. Dwyer, 843 F.2d at 62; United States v. Flaherty, 668 F.2d 566, 582 (1st Cir.1981). The prejudice we must guard against, therefore, is evidentiary spillover resulting from trying defendants en masse for dist......
  • U.S. v. Sanchez, Nos. 89-1600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...to commit the substantive criminal offense which was the object of their unlawful agreement. Id.; accord United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981). Due to the clandestine nature of criminal conspiracies, the law recognizes that the illegal agreement may be either "express ......
  • Oses v. Com. of Mass., Civ. A. No. 89-0487-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 7, 1991
    ...v. Fair, 732 F.2d 245, 249 (1st Cir.), cert. denied, 469 U.S. 1017, 105 S.Ct. 430, 83 L.Ed.2d 356 (1984); United States v. Flaherty, 668 F.2d 566, 599 (1st Cir.1981). Even those comments which do fit this description, however, may be rendered "harmless" by an immediate and forceful curative......
  • U.S. v. Smith, Nos. 82-1678
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 17, 1984
    ...the evidence was ample to prove the essential elements of a conspiracy charge against each of the defendants. United States v. Flaherty, 668 F.2d 566 (1st Several defendants also raise procedural objections to their convictions. For example, defendant Joanne Amado contends that the trial co......
  • Request a trial to view additional results
1 books & journal articles
  • FEDERAL CRIMINAL CONSPIRACY
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...themresponsible for the substantive offense.”); United States v. McKee, 506 F.3d 225, 243 (3d Cir. 2007); UnitedStates v. Flaherty, 668 F.2d 566, 580 n.4 (1st Cir. 1981) (holding that “only one member of a conspiracy needcommit an overt act”).64. See Iannelli v. United States, 420 U.S. 770,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT