U.S. v. Trotter
| Citation | 529 F.2d 806 |
| Decision Date | 12 January 1976 |
| Docket Number | No. 75--1710,Nos. 75--1709,No. 75--1709,75--1710,75--1709,s. 75--1709 |
| Parties | UNITED STATES of America v. William TROTTER, Appellant in, and Vincent Nuzzo. Appeal of Vincent NUZZO, in |
| Court | U.S. Court of Appeals — Third Circuit |
Before VAN DUSEN, ADAMS and ROSENN, Circuit Judges.
The theft of 422 cases of Excedrin from an interstate shipment by motor carrier is the genesis of the criminal prosecution which is the subject of this appeal. Defendants William Trotter and Vincent Nuzzo were tried to a jury in the United States District Court for the District of New Jersey and convicted on all three counts of an indictment charging (count I) conspiracy to steal and possess part of an interstate shipment of freight in violation of 18 U.S.C. § 371 (1971), 1 (count II) theft of freight from an interstate shipment in violation of 18 U.S.C. § 659 (1971), 2 and (count III) possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659 (1971).
Nuzzo was sentenced to three years imprisonment and a fine of $2500 on each count to run concurrently. Trotter was sentenced to eighteen months imprisonment on each count to run concurrently. Both defendants appealed. We affirm.
I.
During the last week in December 1973, two thousand cases of Excedrin were shipped from St. Louis, Missouri, to the carrier's terminal in Carteret, New Jersey, by truck trailer bearing double seals, one of the manufacturer, Bristol-Meyers (Bristol) and the other of the carrier, Time D.C. (Time). The shipment arrived intact with seals in place. On December 31, 1973, Trotter, an employee of Time, drove the trailer of Excedrin from the Carteret terminal to Bristol's plant in Hillside, a distance of seventeen miles, leaving the terminal at 8:32 A.M. and arriving at his destination at 10:45 A.M. Although both seals were intact when the trailer left the terminal, upon arrival at Hillside the seals were gone and 422 cases of Excedrin were missing.
On the same morning, two or three pallets containing boxes of Excedrin appeared in an area of Gerald Fantel's air conditioning repair shop in Metuchen, New Jersey, fifteen miles from the Carteret terminal and twenty-five miles from Bristol's Hillside plant. Fantel, an unindicted co-conspirator in this case, periodically had allowed Nuzzo to use a storage area in his shop. He assumed Nuzzo was responsible for the presence of the Excedrin pallets even though they were placed near the loading dock rather than in Nuzzo's walled-in storage area. Therefore, Fantel later that day stopped by the restaurant which Nuzzo owned to ask him to move the pallets from the loading dock.
Fantel testified that Nuzzo responded to his request by claiming that Trotter owned the Excedrin and that Nuzzo was contemplating buying the goods. Fantel thereupon told Nuzzo to move the Excedrin out of his shop because the storage arrangement was with Nuzzo personally, not with Trotter.
On January 2, 1974, Fantel discovered the Excedrin still in the shop, and he renewed his request to Nuzzo to remove it from the building. Within a week, Nuzzo and Trotter, accompanied by a third person, loaded the Excedrin into a white unmarked van. Fantel aided in the loading.
Two days later, Nuzzo gave Fantel $200 in cash. According to Fantel's testimony Nuzzo stated that the money came from Trotter because Nuzzo had not bought the Excedrin. Nuzzo continued to store sundry goods in Fantel's shop for two or three months thereafter.
In March 1974 the Metuchen police raided Fantel's shop. When Fantel learned of the raid, he went to Nuzzo to ascertain what had happened. Fantel testified that Nuzzo assured him in the presence of Nuzzo's wife that nothing would happen and Nuzzo would pay half of Fantel's legal expenses. Fantel consulted an attorney and subsequently met with agents of the FBI to whom he gave information in return for a reduced charge of a misdemeanor.
On appeal, defendants primarily contend that the trial judge committed prejudicial error in: (1) denying Nuzzo's motion for acquittal; (2) admitting an extrajudicial hearsay statement by Nuzzo to be used against the defendant, Trotter; (3) admitting evidence of other crimes against the defendants; (4) failing to maintain a position of impartiality during the course of the trial. CC II.
First, we consider Nuzzo's contention that there is insufficient evidence to support any count of his conviction. At the close of the Government's case, Nuzzo moved for a judgment of acquittal for lack of evidence. The motion was denied, and the defense proceeded to introduce its evidence. 3 At the close of all the evidence, both defendants moved for judgments of acquittal, pursuant to Fed.R.Crim.P. 29(a). The motions were denied.
The Government does not contend that there is evidence that Nuzzo himself stole the Excedrin. Rather, it relies on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), to support Nuzzo's conviction on the substantive theft count. In Pinkerton, the Court affirmed a conviction for substantive offenses solely on evidence that the defendant had participated in a conspiracy and that his co-conspirator had committed the offenses in furtherance of the conspiracy. The Court stated:
The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise.
Id. at 647, 66 S.Ct. at 1184. Accord, United States v. Boyance, 329 F.2d 372, 375 (3d Cir.), cert. denied sub nom. Feldman v. United States, 377 U.S. 965, 84 S.Ct. 1645, 12 L.Ed.2d 736 (1964).
A defendant may be convicted of a substantive offense which he did not himself commit if it is clear that the offense was committed in furtherance of a conspiracy of which the defendant was a member. United States v. Miley,513 F.2d 1191, 1208 (2d Cir. 1975). Thus, if there is sufficient evidence that Nuzzo conspired with Trotter before the commission of the theft and that theft was an object of the conspiracy, Nuzzo was properly convicted of theft under the Pinkerton rule.
Since the jury returned a guilty verdict, we must examine the evidence in the light most favorable to the Government, giving it the benefit of the inferences to be drawn therefrom. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. De Cavalcante,440 F.2d 1264, 1273 (3d Cir. 1971). We are persuaded after examining the record that the jury reasonably could have inferred that Nuzzo and Trotter entered into a conspiracy prior to the theft and that the theft was committed in furtherance of their conspiracy. 4
Fantel testified that he and Nuzzo in early 1973 entered into an arrangement whereby Nuzzo could store goods in Fantel's shop. Nuzzo made himself a key to the shop and stored sundry goods there from the latter part of 1973 through the first quarter of 1974. Fantel saw Nuzzo in the shop at times when shipments of goods arrived by tractor-trailer, which Nuzzo would remove by use of a fork lift. The goods would remain in the shop for periods of time ranging from a few hours to a few days until removed by Nuzzo by truck.
Nuzzo and Fantel did not enter into a conventional lease nor did they arrange for regular monthly rental payments. Rather, Nuzzo paid Fantel at irregular intervals in cash in sums of fifty or a hundred dollars. From this evidence emerges the outline of an informal relationship between the two men prior to December 1973 from which a jury reasonably could have inferred an arrangement for the storage of stolen goods which were periodically dropped off at Fantel's shop.
There is also evidence that Nuzzo and Trotter conspired to capitalize on Nuzzo's convenient storage arrangement. Trotter visited Nuzzo's luncheonette during 1972 and 1973, and Fantel observed Trotter with Nuzzo in the shop on at least one other occasion unloading merchandise from a truck.
The Government argues convincingly that for Trotter to be able to drive the 15 miles from Time's terminal to Fantel's shop, unload 422 cases of Excedrin, and then drive 25 miles from the shop to Bristol's Hillside plant within only two and a quarter hours, of necessity, required a previously arranged dropoff point for the Excedrin. Trotter would have had to know of the existence of the storage space and be assured of its availability before he embarked on the theft. The planning and execution of the theft, the ultimate disposition of the idiosyncratic goods, and especially the concealed interim storage, 'was not the crime of an impulse or a moment.' 5 That the Excedrin was hurriedly left on the loading dock blocking the overhead door rather than being moved to Nuzzo's storage area underscores the time pressure under which Trotter was operating. The jury could have inferred from the foregoing evidence that a conspiracy to steal and store goods existed between Trotter and Nuzzo before Trotter effected the theft of the Excedrin.
Nuzzo also attacks his conviction on the possession count, contending that there is no evidence to establish even constructive possession. However, we believe that there was such a 'nexus' between Nuzzo and the Excedrin that we reasonably may treat the extent of his control over it as if it were actual possession. United States v. Carneglia, 468 F.2d 1084, 1087 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1391, 35 L.Ed.2d 611 (1973). Nuzzo apparently opened up the shop to Trotter and took responsibility for the presence of the goods, although disclaiming ownership when speaking...
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