U.S. v. Green

• Decision Date: 29 August 1975
• Docket Number: D,Nos. 1005,1006,s. 1005
• Citation: 523 F.2d 229
• Parties: UNITED STATES of America, Appellee, v. Charles GREEN et al., Appellants. ockets 75-1037, 75-1074.
• Court: U.S. Court of Appeals — Second Circuit

Page 229

523 F.2d 229

UNITED STATES of America, Appellee, v. Charles GREEN et al., Appellants.

Nos. 1005, 1006, Dockets 75-1037, 75-1074.

United States Court of Appeals Second Circuit.

Argued May 30, 1975.

Decided Aug. 29, 1975.

Anthony N. Del Rosso, Garden City, N. Y., for appellants Piccora and pacilio.

Vincent L. Verdiramo, Jersey City, N. J., on the brief, for appellants Green, Smith and Grasso.

Samuel R. DeLuca, Jersey City, N. J., on the brief, for appellant Coughlin.

Lauren S. Kahn, Dept. of Justice, Washington, D. C. (David G. Trager, U. S. Atty., for the Eastern District of New York, Peter M. Shannon, Victor D. Stone, Dept. of Justice, Washington, D. C., David J. Ritchie, Sp. Atty., Dept. of Justice, Brooklyn, N. Y., on the brief), for appellee.

Before CLARK, Associate Justice, ^* and HAYS and MANSFIELD, Circuit Judges.

HAYS, Circuit Judge:

Raymond Coughlin, Charles Green, Albert Grasso, Neil Pacilio, Carmine Piccora, and Fred Smith appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, after a twelve-week jury trial. Appellants were each convicted of conspiring to violate 18 U.S.C. § 659 (1970), ¹ which prohibits the theft of goods in interstate or foreign commerce. Appellant Coughlin was also convicted of a substantive violation of § 659. ² We affirm.

I.

At the trial, the Government introduced evidence of a large-scale conspiracy among the officers and employees of Frigid Express, a Jersey City trucking company, to steal frozen seafood from Brooklyn Port Authority Pier 11 and other New York City piers. John Valentine, a former truckdriver for Frigid, testified that sometime in 1964 or 1965 Pasquale Macchirole called a meeting of all Frigid drivers. At the meeting Macchirole told a group of about 25 drivers, including Valentine and appellant Pacilio, that in the future any driver stealing seafood from the piers would be required to give half his profits to Frigid. Between 1965 and 1972 Valentine continued to steal merchandise as he had before. He tried to avoid splitting his profits with Frigid but when pressed he occasionally turned over some of his stolen goods to appellant Piccora and codefendant Questel at the Frigid cold storage room. Appellant Pacilio frequently spoke to Valentine on behalf of Macchirole urging him to pay Macchirole half of whatever Valentine was selling on his own. Valentine would comply by sending money or merchandise to Macchirole through Pacilio.

Until 1972 the drivers stole seafood by loading extra cases onto their trucks at the piers and sometimes paying off the checkers who were supposed to tally the loads. Valentine testified to three specific incidents in which appellants Grasso, Piccora, Pacilio, Smith, and Green each assisted him in the theft of seafood either by paying off a checker or by unloading and disposing of stolen goods.

Beginning in 1972 the drivers devised a new method of stealing seafood which did not require the complicity of the checkers and which took advantage of the procedures used at the piers for loading trucks. When a truckdriver arrives at Brooklyn Pier 11, the watchman makes out a gate pass for him and photographs him with a regiscope machine. After clearing customs the driver loads his truck while the checker makes out a tally ticket. The tally ticket includes the company number, the truck's license plate number, and the number of cases in the load. The checker also notes on the tally the number of recoopered, or partially filled, cases and the number of packages contained in each. After the checker signs the tally he returns it to the driver who goes back to the customs inspector and then to the delivery office, where the tally is entered in the delivery book. A representative of the company, usually the driver, signs the book, and the driver leaves the pier, surrendering his gate pass on the way out.

As the Government established through the introduction of the tallies and the testimony of checkers, the notations on the tallies for Frigid cargo were frequently changed between the time they were made by the checkers and the time the tallies were entered by the drivers in the delivery book. The effect of the changes, which were attributed to Frigid's drivers, was to increase the proportion of unfilled cases of seafood listed on the tally. According to Government witnesses the drivers after leaving the pier would "slack" the cargo by removing packages of seafood from full cases to correspond with the altered tallies. The extra packages would then be sold either by the drivers themselves or by Frigid.

The Government introduced the testimony of several Frigid employees as well as a handwriting expert to link the appellants with this phase of the conspiracy. Co-defendant Lester, who pleaded guilty to seafood theft, testified that after slacking a case in March or April 1972, he sold it and paid Pacilio half his profits. Pacilio took the money and told him that next time he should give the goods to Piccora or co-defendant Questel because they could get a better price for it. Several times in April or May Lester followed those instructions.

Anthony Bencivenga, another co-defendant who pleaded guilty to seafood theft, testified that in April 1972 Pacilio was concerned with getting half the profits of the black drivers who he suspected were stealing. One night Pacilio asked appellant Smith and his brother, co-defendant Alfred Smith, to show Bencivenga their altered tallies. He then told them that Bencivenga would be in charge of stealing. About a week later he introduced Bencivenga to the other Frigid drivers and told them that Bencivenga would help them with their slacks and that they would get half of whatever they stole. Piccora was also told to keep whatever Bencivenga gave him in the freezer for Pacilio.

Document examiner Drew Sommerford testified that a tally from Pier 11 dated July 25, 1972, had been altered by appellant Coughlin. Bencivenga testified that later that day he, Coughlin, and the Smith brothers made up slack cases so that the shipment would correspond to the altered tallies and the resulting surplus could be sold. Sommerford also testified that tallies prepared on August 23, September 12, and September 22, 1972, had been altered by Coughlin. Bencivenga testified that on September 22 he had originally arranged to send appellant Green to help Coughlin make up the slacks for that day without having to come back to Frigid, but that the plans were changed and Coughlin eventually brought the stolen goods back to the freezer at Frigid as Bencivenga had instructed. ³

Appellants argue that the evidence was insufficient to establish any form of conspiracy prior to 1972 and that the non-hearsay evidence was sufficient to establish a post-1972 conspiracy only with regard to appellants Pacilio and Smith. They contend, therefore, that it was error for the court to admit evidence of criminal activity which took place prior to 1972 and that it was also error to utilize the co-conspirator exception to the hearsay rule to admit out-of-court statements of alleged co-conspirators into evidence against appellants other than Pacilio and Smith.

Appellants' contentions are without merit. The Government introduced ample non-hearsay testimony to establish a conspiracy dating at least from 1965 through 1973 and including each of the appellants. ⁴ The out-of-court statements of co-conspirators made in furtherance of the conspiracy were thus admissible. See, e. g., United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Geaney,417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). Valentine's testimony concerning the meeting called by Pasquale Macchirole established the framework for the conspiracy. His testimony also linked each of the appellants with the exception of Coughlin to pre-1972 activities in furtherance of the conspiracy. The testimony of Bencivenga and other Government witnesses established that the conspiracy continued through 1972 and 1973, with each of the appellants participating. The fact that new members joined the conspiracy as time went on and old members may have dropped out does not preclude a finding that a single, ongoing conspiracy existed. United States v. Nasse, 432 F.2d 1293, 1297 (7th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217 (1971). We hold that since there was sufficient non-hearsay evidence of a conspiracy including each of the appellants, dating from 1965 through 1973, evidence of related criminal activity throughout that period and the out-of-court statements of co-conspirators were admissible. ⁵

Appellants also argue that the evidence was insufficient to sustain a conviction for conspiracy because there was no evidence of an intent to steal from foreign commerce. We disagree. A substantive violation of 18 U.S.C. § 659 does not require knowledge of the interstate or foreign character of the goods. United States v. Houle, 490 F.2d 167, 170 (2d Cir. 1973), cert. denied, 417 U.S. 970, 94 S.Ct. 3174, 41 L.Ed.2d 1141 (1974); United States v. Tyers, 487 F.2d 828, 830 (2d Cir. 1973), cert. denied, 416 U.S. 971, 94 S.Ct. 1995, 40 L.Ed.2d 560 (1974). It is therefore unnecessary to prove such knowledge in order to establish a conspiracy violation. United States v. Feola, --- U.S. ---, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Podell, 519 F.2d 144 (2d Cir., 1975). Furthermore, the jury could well have inferred from evidence relating to bills of lading, customs procedures, and the site of the thefts that appellants did intend to steal from foreign commerce. Cf. United States v. Houle, supra at 170.

II.

Appellants' primary contention is that they are entitled to a new trial because the court set a time limit on the jury's deliberations and thereby coerced a verdict. The facts relevant to this claim are as follows: Before...