U.S. v. Solimine, 75-1867

• Decision Date: 29 March 1976
• Docket Number: No. 75-1867,Nos. 75-1867,No. 75-2134,75-2134 and 75-2369,No. 75-2369,75-1867,75-2134,75-2369,s. 75-1867
• Citation: 536 F.2d 703
• Parties: UNITED STATES of America, Appellee, v. Jerry Michael SOLIMINE, Appellant inAppeal of Samuel A. SCLAFANI, inAppeal of Julio Joseph PISCOPO, in
• Court: U.S. Court of Appeals — Sixth Circuit

Page 703

536 F.2d 703

UNITED STATES of America, Appellee, v. Jerry Michael SOLIMINE, Appellant in No. 75-1867 Appeal of Samuel A. SCLAFANI, in No. 75-2134 Appeal of Julio Joseph PISCOPO, in No. 75-2369.

Nos. 75-1867, 75-2134 and 75-2369.

United States Court of Appeals Sixth Circuit.

No. 75-1867 Submitted March 29, 1976.

Nos. 75-2134 and 75-2369 Argued March 29, 1976.

Decided June 18, 1976.

Henry E. Sheldon, Cincinnati, Ohio, for appellant in No. 75-1867.

Mary Lee Garfield, Washington, D. C., for appellant in No. 75-2134.

Peter W. Swenty, Cincinnati, Ohio, for appellant in No. 75-2369.

William W. Milligan, U. S. Atty., Anthony W. Nyktas, Cincinnati, Ohio, for appellee.

Before PHILLIPS, WEICK and ADAMS, ^* Circuit Judges.

ADAMS, Circuit Judge.

These appeals follow convictions in connection with the hijacking of a truckload of clothing. A variety of contentions are advanced by the defendants; the most significant concerns the question whether one may be convicted of both a theft and the possession of the goods stolen in the theft.

I.

The actual hijacking was done on August 8, 1973 by William Skirvin, a driver for Roadway Express. Disguised with a false beard, Skirvin stole a tractor-trailer containing Levi Strauss products from the terminal of his employer in Cincinnati, Ohio. Skirvin took the rig in collaboration with and under the influence of Jerry Solimine, a used car dealer to whom he was in debt. He also cooperated with Samuel Sclafani, who was to arrange for the "fencing" of the goods in Detroit, and Irving Sisson, an associate of Sclafani and Solimine.

Skirvin drove the tractor trailer to the Young Movers Warehouse in Cincinnati where Solimine and a friend, Richard Burress, had made storage arrangements. There Skirvin, Sclafani, Sisson, Burress, and Solimine unloaded 641 cartons from a truck. Melvin Sims, an employee at Solimine's used car lot, and Terry Saylor, the Manager of the warehouse, assisted them.

The following day, August 9, Saylor heard a radio newscast about the hijacking of a Roadway Express truck. He called his brother, the owner of the warehouse, who put Saylor in touch with the FBI. On August 11, FBI agent William Weatherwax came to the warehouse and inspected the cartons, which were stored in an open area. At that time, only 596 cartons remained in the warehouse, since on the previous day Sclafani, with Sisson and Julio Piscopo, had loaded 45 of the cartons into a camper vehicle and driven them away.

FBI agents placed the warehouse under surveillance. Sclafani, Sims, and Robert Boulier were arrested on August 17 when they came to the warehouse with a rented truck and began to load it with the stolen merchandise.

Skirvin was subsequently arrested, but his cooperation with the government resulted in an arrangement that permitted him to plead guilty to a misdemeanor offense. Solimine, Sclafani, Sisson, Burress, Sims, Boulier, and Piscopo were subsequently indicted for various counts of conspiracy, theft, and receipt and possession of goods stolen from an interstate shipment. The trial of all but Sisson, who appears to have eluded arrest, was held from March 3 to March 7, 1975. The jury convicted all of the defendants except Sims, whose motion for acquittal had been granted by the court. Three of the defendants Sclafani, Solimine and Piscopo now bring appeals.

Sclafani and Solimine were found guilty of conspiracy, theft from interstate shipment, and receipt and possession of goods stolen from interstate shipment. They each received sentences of five years for conspiracy, ten years for theft, and ten years for receipt and possession of stolen goods. All sentences were to be served concurrently.

Piscopo, who was found not guilty with respect to the conspiracy charge, was convicted of receipt and possession of stolen goods. He was given a one-year sentence, which was suspended, and placed on probation for two years.

II.

Only one contention is raised by Piscopo on this appeal: that there was insufficient evidence to prove his guilt of receipt and possession of stolen property in violation of 18 U.S.C. § 659.

All of the evidence against Piscopo was provided by the direct examination of Terry Saylor, the manager of the warehouse. Saylor testified that on August 10, 1975, two days after the hijacking, Piscopo assisted Sclafani and Sisson in loading about 45 cartons of stolen goods into a camper vehicle that bore Michigan license plates. He also stated that Piscopo was present when Sclafani asked him whether campers and rented trucks, such as the one that was to be employed on August 17, had to stop at weigh-stations. In Ohio weigh-stations are operated by the state police. Finally, Saylor described how Piscopo drove off in the camper with Sisson.

Piscopo claims that the government demonstrated only that he was at the scene, but failed to prove either possession or guilty knowledge on his part. We cannot agree.

The evidence against Piscopo is indicative of far more than mere presence at the time when stolen goods were possessed by another. It shows active participation in loading and carrying away stolen property. This participation might seem even more incriminating to the jury when, in the context of a scheme to fence the stolen goods in Michigan, it is recalled that the goods were transported from the Ohio warehouse in a vehicle with a Michigan license.

In United States v. Nalley, ¹ the convictions rested on the presence of the defendants under suspicious circumstances at the site where a hijacked truck was hidden. Here, Piscopo not only approached the stolen goods, but also helped to load them into a vehicle and then drove off in that vehicle accompanied by one of the prime movers of the criminal scheme. Piscopo's possession was, consequently, more than "passing control."

Under such suspicious circumstances as appear here, it is permissible for the jury to infer from the possession of stolen goods the knowledge that the goods were stolen. ² Not long ago the Supreme Court upheld a presumption of guilt on the basis of the "unexplained possession of recently stolen property." ³ In this respect, the evidence against Piscopo is much like that in United States v. Spatuzza, ⁴ where the Seventh Circuit upheld a conviction for receipt and possession of stolen goods largely on the basis of participation in the loading of such goods into the van that carried them away.

Accordingly, the conviction of Piscopo will be affirmed.

III.

Except in one instance, the arguments advanced by Sclafani and Solimine may each be disposed of without extended discussion.

A. Pretrial Delay.

Sclafani argues that the lapse of eleven months between his arrest and the return of the indictment, in combination with the seven and one-half months that intervened between the return of the indictment and the trial, was inherently prejudicial and constituted grounds for dismissal of the indictment.

This claim cannot survive the test of Barker v. Wingo. ⁵ There the Supreme Court held that delay in itself was not a sufficient ground for finding a violation of the right to a speedy trial. ⁶ Significant delay, however, does serve to trigger an ad hoc balancing of the relevant factors.

In the present case there is no indication that the time lag was for an improper purpose. Nor did Sclafani assert his right to a speedy trial prior to this appeal. In fact, Sclafani actually sought a continuance when the case was scheduled for trial. Further, Sclafani has utterly failed to meet his burden with respect to the most critical element of the analysis the showing of prejudice. ⁷

B. Access to the Grand Jury Minutes.

Access to the transcript of the proceedings before the grand jury was sought by Sclafani in order to discover impeachment material that might be used against the government's witnesses. The trial court denied Sclafani's motion for production of this material. Indeed, the court could not satisfy Sclafani since the interrogation that had been preserved was that of codefendant Solimine, who invoked the fifth amendment to avoid giving testimony that might incriminate him. The transcript containing the questions put to Solimine was, in fact, delivered to counsel for Sclafani.

The Court could not grant access to non-existent records, and it is not required that testimony before the grand jury be recorded. ⁸ Thus, no legally cognizable harm could flow to Sclafani from the failure to produce the non-existent grand jury minutes. We repeat, however, the prior observation by this Court that it would be better practice to make and preserve a record of grand jury testimony. ⁹

Sclafani's collateral claim that his indictment was faulty because it was based on hearsay testimony related to the grand jury by agent Bruce Stepp, rather than on direct testimony from witnesses that the government ultimately employed at trial, is not supported by authority. The Supreme Court has held that indictments may be founded on hearsay. ¹⁰ In addition, we note that Stepp supervised and participated in the surveillance at the warehouse and in the arrests of August 17, and much of his testimony consisted of first-hand information rather than hearsay.

C. Warrantless Search.

Solimine and Sclafani both charge that their fourth amendment right to be secure against unreasonable searches was violated by the FBI's inspection of the warehouse where the stolen goods were stored. They contend that the FBI's examination of the cartons, which was done without a warrant, was not justified by exigent circumstances. In addition, the stolen cartons were not in "plain view" within the warehouse, according to these defendants, because the cartons were alone on a separate floor.

We find no merit in these contentions. At the behest of Saylor, special agent Weatherwax visited the Young Movers warehouse on August 11. Saylor took Weatherwax to the floor where the cartons from the Roadway Express trailer were stored. The cartons were not shut-off by...