U.S. v. Scanzello, 86-1672

• Decision Date: 17 August 1987
• Docket Number: No. 86-1672,86-1672
• Parties: UNITED STATES of America v. Sylvester SCANZELLO, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 18

832 F.2d 18

UNITED STATES of America v. Sylvester SCANZELLO, Appellant.

No. 86-1672.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Aug. 17, 1987.

Decided Oct. 19, 1987.

Rehearing and Rehearing En Banc Denied Dec. 14, 1987.

Robert B. Mozenter, Jane R. Goldberg, Mozenter, Molloy & Durst, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Ronald A. Sarachan, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS, Chief Judge, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Sylvester Scanzello, one of six defendants named in a ten-count indictment arising from a scheme to steal goods from interstate shipments in violation of 18 U.S.C. Sec. 659, was charged with and convicted by a jury of one count of conspiracy in violation of 18 U.S.C. Sec. 371. He was sentenced to five years' imprisonment, suspended to six months with fifty-four months' probation, and ordered to pay $2,000 restitution. On appeal, Scanzello challenges the sufficiency of the evidence to support his conviction and the sufficiency of the indictment to support his sentence. ¹

I. Facts

As part of the conspiracy, several of Scanzello's co-defendants stole merchandise from interstate shipments originating at the Sears Catalog Merchandise Distribution Center in Philadelphia (the Catalog Plant). Co-defendant Thomas J. Murphy operated a trailer truck for Signal Delivery Service, Inc. which, under a contractual agreement with Sears, loaded and transported merchandise that Sears shipped from the Catalog Plant to its retail outlets. At the Catalog Plant, merchandise destined for outlets which were not on Murphy's route was diverted onto Murphy's trailer. Murphy then deviated from his designated route to unload the stolen merchandise at co-defendant Wayne Hirschbuhl's residence. Hirschbuhl delivered the stolen goods in his van to a garage on Palmetto Street in Philadelphia owned by co-defendant Laurence V. Wood. Wood and co-defendant Samuel Young sold the merchandise from the Palmetto Street garage for one-half of the catalog price. Scanzello assisted in the garage on at least two occasions, and selected and carried away stolen Sears merchandise on at least one occasion.

II. Conspiracy

Scanzello argues that the evidence presented by the government during the trial was insufficient to sustain his conspiracy conviction because it established, at most, that he was a purchaser of stolen goods and failed to establish that he knowingly acted in furtherance of the illegal objectives of an ongoing conspiracy. Our review of the record leads us to conclude that the government has introduced evidence sufficient to establish each of the necessary elements of an independent conspiracy charge against Scanzello.

When evaluating the sufficiency of the trial evidence, we must determine "whether there is substantial evidence, when viewed in the light most favorable to the government, to uphold the jury's verdict." United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 87, 93 L.Ed.2d 40 (1986). "The agreement to commit an unlawful act is itself the act proscribed by the crime of conspiracy." United States v. Inadi, 748 F.2d 812, 817 (3d Cir.1984), rev'd on other grounds, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). It is not necessary to prove a formal agreement among the conspirators. All the elements of the conspiracy, including the agreement, can be proven entirely through circumstantial evidence. Kapp, 781 F.2d at 1010. However, there must be evidence tending to prove that defendant entered into an agreement and knew that the agreement had the specific unlawful purpose charged in the indictment. United States v. Cooper, 567 F.2d 252, 253 (3d Cir.1977).

Vincent Sponziello, a Sears security agent who participated in the F.B.I.'s undercover investigation, testified in detail about the nature of the conspiracy and the efforts of the participants to prevent detection. He testified that: (1) the merchandise at the Palmetto Street garage was sold for half price; (2) the transactions were on a cash only basis; (3) no receipts were given for the merchandise; (4) no sales tax was charged when merchandise was purchased; and (5) the garage contained no markings identifying it as a Sears facility. App. at 136-37, 147-49, 222-25. The garage door was always kept closed; Sponziello had to crawl under a 30-inch opening made by Wood to get inside the warehouse. App. at 130. Vehicles were parked directly in front of the garage to prevent observation of the activities conducted therein. App. at 130, 173-74. The jury could have concluded that there were no innocent purchasers who happened in.

Sponziello testified that he saw Scanzello at the Palmetto Street garage on two occasions when it was packed with cartons of new Sears merchandise bearing shipping labels to locations throughout a multi-state region. App. at 124, 138. Sponziello observed Scanzello select and stack a pile of stolen merchandise in the area of the garage where goods to be purchased were placed and then load two Sears microwave ovens into his Jeep Cherokee. App. at 131-32, 483-85. On other occasions, several of the co-conspirators told undercover F.B.I. Agent Smith or Sponziello that certain merchandise was reserved for or had already been sold to Scanzello. App. at 229-30, 254-55.

Scanzello's participation was not limited to that of a purchaser, as he contends. Both Sponziello and Smith testified that they saw Scanzello unpacking and pricing new merchandise in the garage. App. at 131, 166-72; Supp.App. at 77a-81a. Sponziello also testified that Scanzello transported items for a co-defendant whose vehicle was full, App. at 229, 239-45; that Scanzello attempted to increase the price of exercise bikes that Sponziello wished to purchase, App. at 170-73; and that Scanzello assisted in concealing the operation by parking his jeep directly in front of the garage door. App. at 129, 163. Further, the government introduced a tape-recorded conversation between Wood and Scanzello during which Scanzello directed Agent Smith to park his car closer to the garage door so no one could see what was going on while merchandise was loaded into Smith's vehicle. App. at 1799; Supp.App. at 80a-85a. The jury was entitled to take into account not only that Scanzello denied to the F.B.I. ever being at the Palmetto Street garage or receiving any Sears property from that garage, App. at 1306-10, but also that Scanzello, who had been involved in an investigation regarding the theft of Sears property when he was a Philadelphia police detective, knew that it was difficult for Sears to trace its stolen property. App. at 1320.

Although Scanzello challenges the credibility of the government's witnesses, all reasonable inferences must be drawn and all credibility issues resolved in the government's favor. United States v. Jannotti, 673 F.2d 578, 598 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). The testimony adduced by the government examined in the light most favorable to it could lead a jury reasonably to conclude that the goods were stolen, that the conspirators went to great lengths to conceal their activities, and that Scanzello, who was present at the warehouse on more than one occasion, had knowledge of the illegal scheme. There is ample evidence to establish that Scanzello willfully entered into the conspiracy, made it his own, and performed acts in furtherance thereof. There is thus no basis to overturn Scanzello's conviction.

III. Sentence

Scanzello argues that even if his conviction for conspiracy is sustained, the district court erroneously sentenced him because it applied the felony rather than the misdemeanor provision of 18 U.S.C. Sec. 371, the general conspiracy statute. The conspiracy statute looks to and incorporates the grade of the underlying offense. It states: "If ... the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor." 18 U.S.C. Sec. 371 (1966). ² Because Scanzello was charged with a conspiracy to steal goods from interstate commerce, we must look to that underlying statute to determine whether he was charged with a misdemeanor or a felony. ³ That statute, 18 U.S.C. Sec. 659, prescribes a felony punishment only if the value of goods stolen is in excess of $100. ⁴

Scanzello concedes that there was evidence from which the jury could have found that an object of the conspiracy was to steal merchandise in excess of $100 in value, and that the merchandise stolen in fact had such a value. Counts 2 through 10 of the indictment charged one or more of Scanzello's co-defendants with substantive violations of 18 U.S.C. Sec. 659 and expressly alleged that the merchandise referred to in each such count had a value in excess of $100. In contrast, the conspiracy count of the indictment does not refer in the charging portion to the value of the goods stolen, and the district court did not charge the jury to find as a necessary element of the conviction on the conspiracy that the value of stolen goods was in excess of $100.

We have previously recognized that "[c]onspiracy indictments need not allege all of the elements of the offense which the defendants are accused of conspiring to commit." United States v. Wander, 601 F.2d 1251, 1259 (3d Cir.1979); see also Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301-02, 71 L.Ed. 545 (1927); United States v. Knox Coal Co., 347 F.2d 33, 38 (3d Cir.), cert. denied, 382 U.S. 904, 86 S.Ct. 239, 15 L.Ed.2d 157 (1965). A conspiracy indictment, like any other indictment, is "sufficient if it, first, contains the elements of the offense charged and fairly informs the...