U.S. v. Franklin

• Decision Date: 20 December 1978
• Docket Number: No. 78-5056,78-5056
• Citation: 586 F.2d 560
• Parties: 3 Fed. R. Evid. Serv. 1680 UNITED STATES of America, Plaintiff-Appellee, v. Gordon W. FRANKLIN, Frederick J. Bonomo, Gerald A. Pini, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 560

586 F.2d 560

3 Fed. R. Evid. Serv. 1680

UNITED STATES of America, Plaintiff-Appellee, v. Gordon W. FRANKLIN, Frederick J. Bonomo, Gerald A. Pini,

Defendants-Appellants.

No. 78-5056.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1978.

Michael Doddo, Miami, Fla. (Court appointed), for Franklin.

Alfred Paul Farese, Everett, Mass., for Bonomo.

Dennis J. Sullivan, Joseph Delcore, Everett, Mass, for Pini.

Jack V. Eskenazi, U. S. Atty., C. Wesley G. Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before JONES, AINSWORTH and HILL, Circuit Judges.

AINSWORTH, Circuit Judge:

Gerald Pini, Frederick Bonomo ¹ and Gordon Franklin appeal their convictions on charges of transporting stolen goods in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314, ² and of violating 18 U.S.C. § 371 ³ by conspiring to violate 18 U.S.C. § 2314, asserting numerous errors in their trial. The contentions that Bonomo and Pini advance are meritless and we therefore affirm their convictions. However, we find insufficient evidence to support Franklin's convictions and reverse.

I. Factual Background

Appellants were indicted and convicted for their alleged participation in a plot, organized by one Francis de Forrest Van Zandt, to steal four "elephant folios" of John James Audubon bird prints, containing 435 prints worth a total of more than $400,000, from the Audubon House in Key West, Florida. Pini and Bonomo arrived in Key West, Florida, from Boston on Wednesday, May 25, 1977, two days before the Audubon House was burglarized. According to the testimony at trial of Van Zandt's accountant, Roy Louis Morrell, Jr., a coconspirator who testified for the Government, both Pini and Bonomo were among those attending a meeting on Thursday, May 26, at the Pier House Motel. There, Van Zandt and the others went over the plans for the burglary, discussed the subsequent disposition of the Audubon prints, and determined the role of each participant in the proposed theft. Bonomo's task was to pick the lock of the Audubon House and disable the alarm system, while Pini and another man would break into the case containing the elephant folios and carry the prints from the building. ⁴ Morrell testified that after this meeting, the plotters went to the Audubon House, intending to commit the theft; however, the sound of an alarm and the fear that someone remained inside the building led them to withdraw.

They returned the next evening, Friday, May 27, and carried out the burglary. Morrell related that Bonomo went toward Audubon House and returned shortly thereafter, saying "I've done my job, now the others will have to do theirs." Pini took a crowbar from the back seat of the car from which Morrell was keeping watch and headed for the building. A short time passed and Pini came back, explaining that the crowbar was too large to pry open the folios' case and saying that he needed a screwdriver. Pini and Van Zandt drove off in the lookout car, according to Morrell, returning in approximately 25 minutes with a screwdriver that Pini then carried toward the House. After a short while, Pini came back out to get Van Zandt, explaining that the folios were too heavy for two men to carry; Van Zandt went in to assist. About 20 minutes later, Van Zandt left the building and made a phone call, and approximately 10 minutes after that another participant, Tim Jones, pulled up in a pickup truck. Van Zandt and Pini loaded the folios into the back of the truck, which Jones then drove off, and Van Zandt took Pini and Morrell in the lookout car back to his condominium. ⁵

The next morning, following Van Zandt's instructions, Morrell drove to the warehouse to which Jones had taken the stolen art and asked appellant Gordon Franklin, who worked there, "if everything was okay." Franklin replied, "Yes." On Sunday, May 29, Kester Buchanan arrived in Key West. Buchanan testified that Van Zandt had called him on Friday afternoon at his home in North Carolina, describing an "emergency" and asking him to come to Key West "immediately" and that in response to Buchanan's request for funds Van Zandt ordered Morrell to send him a telegraphic money order.

According to Buchanan's testimony, on Monday morning, May 30, he conferred with Van Zandt, Morrell and Jones. The four then drove to the warehouse, and appellant Franklin helped them load the folios, now wrapped in green plastic, into the trunk of Buchanan's car. Jones and Van Zandt took a separate automobile to Miami, followed by Buchanan, who continued on to his home in North Carolina, there to await further instructions. On the stand, Buchanan recounted Van Zandt's telephone call approximately 5 days later asking him to take the prints to New York. When Buchanan replied that he was unavailable, Van Zandt sent Morrell to pick up the folios and transport them northward. Morrell was later apprehended in New Jersey with one of the folios in his possession and he subsequently pled guilty in a federal court in New Jersey to the charge of interstate transportation of stolen property, receiving a sentence of five years' probation. Buchanan pled guilty in the United States District Court for the Southern District of Florida, the same court where these appellants were tried, to a charge of conspiring to transport stolen property in interstate commerce and was awaiting sentencing at the time of his testimony at the trial.

Appellants Pini, Bonomo and Franklin were indicted and tried along with Tim Jones, among others. ⁶ The jury found the four men guilty of violating the substantive provisions of 18 U.S.C. § 2314, as well as conspiring under 18 U.S.C. § 371 to violate section 2314. Bonomo and Pini each received concurrent sentences of seven years for the substantive crime and three years for the conspiracy offense. Franklin was sentenced to concurrent terms of seven years on the substantive conviction and four years for the conspiracy charge. ⁷

II. The Claims of Bonomo and Pini

A. Sufficiency of the Evidence

Pini and Bonomo first claim that the district court erred in denying their motions for judgments of acquittal, since the evidence was insufficient to support a guilty verdict on either the substantive offense or the conspiracy charge. We disagree, as the record plainly demonstrates the presence of sufficient evidence to sustain appellants' convictions under both counts of the indictment.

1. The Substantive Offense

In challenging their convictions for the substantive offense, appellants stress the absence of any evidence that they took part in or facilitated the interstate transportation of the stolen art. Essentially, they contend that their participation ended with the burglary itself, and therefore that they cannot have violated 18 U.S.C. § 2314.

That statute provides in pertinent part that "(w)hoever transports in interstate or foreign commerce any goods, . . . knowing the same to have been stolen, . . . (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both." We follow the unvarying lead of our fellow circuits in holding that to establish a substantive violation of section 2314 the Government need only show knowledge that the goods were stolen, "together with the actual fact that they were transported interstate." United States v. Kilcullen, 1 Cir., 1976, 546 F.2d 435, 445 n.15, Cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582; United States v. Cowden, 1 Cir., 1976, 545 F.2d 257, Cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; United States v. Wilson, 8 Cir., 1975, 523 F.2d 828, Cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117; United States v. Ludwig, 8 Cir., 1975, 523 F.2d 705, 707; United States v. White, 6 Cir., 1971, 451 F.2d 559, 559-60, Cert. denied, 405 U.S. 1071, 92 S.Ct. 1522, 31 L.Ed.2d 804 (1972); United States v. Mingoia, 2 Cir., 1970, 424 F.2d 710; United States v. Kierschke, 6 Cir., 1963, 315 F.2d 315, 317, 318; United States v. Tannuzzo, 2 Cir., 1949, 174 F.2d 177, 180. ⁸ See United States v. Kelly, 5 Cir., 1978, 569 F.2d 928, 934.

Though the plain language of section 2314 requires knowledge that the goods were stolen, it imposes "no requirement . . . that the accused know, foresee, or intend that instrumentalities of interstate commerce will be used." United States v. Powers, 9 Cir., 1971, 437 F.2d 1160-1161. This is so because the statute "is aimed at the evils of theft, fraud, and counterfeiting and not at the regulation of interstate transportation. Suppression of movement of the fruits of theft and fraud is only the means to the end of suppressing theft and fraud themselves. The sole reason for conditioning the statutes' prohibitions upon use of interstate commerce is to provide a constitutional basis for the exercise of federal power." United States v. Roselli, 9 Cir., 1970, 432 F.2d 879, 891, Cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). Accordingly, whether Pini or Bonomo assisted or was aware of the actual interstate shipment of the Audubon folios has no bearing on the validity of their convictions for the substantive offense. ⁹

Viewing "the evidence and all reasonable inferences flowing therefrom in the light most favorable to the Government," United States v. Cadillac Overall Supply Co., 5 Cir., 1978, 568 F.2d 1078, 1084; Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we find sufficient evidence to support appellants' convictions on the substantive charge. The actual fact that the stolen prints were transported interstate stands uncontroverted, and both Pini and Bonomo concede not only knowledge of the prints' stolen character but also participation in the actual theft.

2. The Conspiracy Charge

Appellants Pini and Bonomo contend also that "there was insufficient evidence, either direct or circumstantial to show that they were...