United States v. Aman, 10866.

• Decision Date: 05 March 1954
• Docket Number: No. 10866.,10866.
• Citation: 210 F.2d 344
• Parties: UNITED STATES v. AMAN.
• Court: U.S. Court of Appeals — Seventh Circuit

210 F.2d 344 (1954)

UNITED STATES v. AMAN.

No. 10866.

United States Court of Appeals Seventh Circuit.

January 29, 1954.

Rehearing Denied March 5, 1954.

Frank J. McAdams, Jr., John J. Cassidy, Jr., Chicago, Ill., for appellant.

Irwin N. Cohen, U. S. Atty., Charles V. Kralovec, Asst. U. S. Atty., Chicago, Ill., Otto Kerner, Jr., U. S. Atty., for appellee.

Before FINNEGAN and LINDLEY, Circuit Judges, and PLATT, District Judge.

FINNEGAN, Circuit Judge.

Defendant¹ was tried by a jury on a five count indictment. He was found guilty under two counts grounded on 18 U.S.C. § 2314 (Supp. V), 18 U.S.C.A. § 2314, proscribing transportation, in interstate commerce, of property knowing the same to be stolen. Not guilty verdicts were simultaneously returned on counts of the same indictment charging violations of 18 U.S.C. § 659 (Supp. V), 18 U.S.C.A. § 659, and conspiracy.²

Aman's sentence was suspended and he was placed on probation for one year on each of counts II and IV, to run consecutively.

All counts name Gene Lombardi as a co-defendant with Aman. Lombardi was found guilty on his plea of nolo contendere, Fed.R.Crim.P. 12(a), 18 U. S.C., to the fifth count, and sentenced to one year and a day. Counts I and IV were dismissed, as to him, on his own motion. Called as a witness, by the district court, Lombardi testified at Aman's trial.

Defendant's motions for acquittal, made at several junctures of the proceedings below, were all denied. He first moved for acquittal when the government rested its case, then at the close of all the evidence, renewing this motion within five days after the jury was discharged. By this last motion he also sought a new trial under Fed.R.Crim.P. 29(a). During the oral arguments, before this Court, defendant's counsel stated that his client was not asking for a new trial, only for an order of acquittal. Cf. Bryan v. United States, 1950, 338 U.S. 552, 553, 555, 556, 70 S.Ct. 317, 94 L.Ed. 335.

We cannot consider the first motion for acquittal, made at the close of the government's case, because thereafter defendant offered evidence on his own behalf. By so doing, he abandoned that motion. Gaunt v. United States, 1 Cir., 1950, 184 F.2d 284; Lii v. United States, 9 Cir., 1952, 198 F.2d 109.

Post verdict appeals, such as this one, reaching us after denial of a motion for judgment of acquittal, bring into clear relief certain contours of our reviewing powers. Such boundaries have been frequently delineated by this Court.³ United States v. Hack, 7 Cir., 1953, 205 F.2d 723, certiorari denied, 1953, 346 U.S. 875, 74 S.Ct. 127. While at the same time, we enunciated those principles which formulate the criteria for measuring the evidence received and proceedings had, at the trial level.

This record justifies stripping the appeal of any issue concerning the status of the property transported, or its value. The whiskey involved was shown to have been stolen property. It was of the requisite statutory value. No point has been raised concerning jury instructions, nor does the record show the District Judge's charge to the jury.

From our appraisal of this record, we think that the following portions of evidence, taking a view thereof most favorable to the government, supply the requisite backdrop against which the key issues, here, must be examined.

Near Hammond, Indiana, in the early morning hours of November 27, 1951,⁴ five unidentified men seized a vehicle (truck and sealed trailer) containing about 800 cases of Seagram's whiskey. This episode was related by a Government witness — the shipper's driver. He also testified that he had never seen nor heard of Aman before this trial.

In the middle of November, 1951, another truck driver, George R. Bowman met Aman for the first time at his (Bowman's) place of business, called Hogan's Service Station, 1510 South State Street, Chicago, Illinois. Gene Lombardi, Walter Kniaz and Norman Shapiro were also present at this initial meeting. Subsequently Bowman saw Aman, and the same three men, at about one A. M. on Friday the 27th or 28th of November, 1951. Concerning this occasion, Bowman testified, "Mr. Aman said to Mr. Kniz^* that the load had been cancelled and he would not be able to load at that time, that the warehouse was closed, and that the loading date would be postponed." Kniaz complained about the equipment being idle and Bowman related that Aman gave one hundred dollars to Kniaz who in turn gave it to Bowman. Continuing his testimony, Bowman stated, "At the time Aman said he would let us know when he was ready to load and everything was ready to move."

One week later, on a Friday, in the latter part of November, 1951, Bowman saw Gene Lombardi and talked with him. Aman was in their vicinity. On the following Sunday, Gene Lombardi telephoned Bowman at the home of Robert McGill, one time brother-in-law of Bowman. Thereafter Bowman went to Hogan's Gas Station and waited for Lombardi who subsequently arrived. Bowman drove his truck to the 7300 block on Lake Street. After he parked the vehicle Lombardi picked him up and at approximately four-thirty in the afternoon they went to a restaurant. Aman arrived while these men were having coffee and told them to move the truck; "* * * to get away from there; that the parties that were picking up our truck would not drive it away while we were in that vicinity." Bowman reported the defendant as saying: "Aman told Lombardi let us get out of there and meet him at such and such a place." Bowman recalled this location as being a drug store in the 4500 or 4000 block on Lake Street. After this conversation, Aman departed, Bowman and Lombardi proceeded to the drugstore (at approximately five-thirty to quarter of six in the afternoon) where Aman joined them having coffee. Bowman's memory of the conversation at this meeting is confined to his recollection that, "Mr. Aman told us to meet him then at the thirty-eight hundred block^† on Harlem Avenue." Traveling in Lombardi's car, Bowman and Lombardi drove to that point and waited in the car. Aman came up to their vehicle and advised that they would be ready in a few minutes. Then Lombardi, Aman and Bowman proceeded to a gas station where Lombardi's car was filled with gas. At this point in his testimony Bowman related that: "We pulled back to the original spot where we were standing in front of the fruit stand, where we were sitting. We were facing south on Harlem at that time, and a car pulled up across the street, and Mr. Aman got out and walked across the street to this car; and then he came back and said, `Your truck is parked a block and a half south on the right-hand side of the street.' And he went away, and Lombardi and I drove down and I left him sitting there, and I got into my truck and drove out of town." Bowman said he did not know what was loaded⁵ in his truck.

Pursuant to Lombardi's instructions, Bowman followed him to Winston-Salem, North Carolina, where the cargo was delivered to Wayne Morris. Morris, Bowman, and five or six other men unloaded Seagram's whiskey from Bowman's truck, transferring it to several smaller trucks. Lombardi paid Bowman $500 for this trip.

After that delivery Bowman saw Lombardi and Aman at the service station. It was approximately three-thirty or four o'clock in the afternoon. At this meeting, about the 8th or 9th of December, 1951, Lombardi told Bowman they had another load going south.

On this occasion Bowman parked his truck on 12th Street about a block West of Cicero Avenue, leaving his keys in it pursuant to instructions. Lombardi again picked up Bowman and they went to a tavern where Aman met them, around five o'clock, and said the procedure would be the same. Again, Bowman and Lombardi went to Ogden and Harlem Avenues and parked. Aman arrived and got into their car where he remained ten to fifteen minutes. He asked Lombardi if he (Lombardi) had given Bowman money. Then, Bowman testified that Aman said, "* * * just to sit tight and he would let us know when it was ready." Aman got out of the car, and left the two men sitting there. He returned in about twenty to twenty-five minutes and told them, "Be ready in a few minutes." Bowman then says, a car pulled up and "* * * he (Aman) went out of the car and whatever they said I don't know, but he (Aman) came back to the car and said, `The load is ready and it is parked in the same place.' He got back in with these people and rode away." Bowman received $500 from Lombardi for this trip to Wilkes County, North Carolina, where he delivered about 400 cases of Seagram's whiskey. This time the unloading scene was illuminated by flashlight and Bowman's cargo was transferred in part to other trucks and the balance stored in a shed about 50-75 feet behind a house. Bowman identified various government exhibits as being whiskey cases similar to those he had unloaded at the terminals of his two previous trips to North Carolina.

On redirect examination Bowman recounted details of a shipment of Old Thompson Whiskey, on the first or second of November, 1951, from a warehouse on Lincoln Avenue to North Carolina. Aman paid him $400 for this hauling job. During Bowman's testimony this transaction was termed "legitimate," viz., not involving stolen whiskey, but destined for a dry county down south. Aman's last name was not known to Bowman during the early stages of these events.

Aman's co-defendant, Gene Lombardi, testified after being called by the district judge. He virtually corroborated Bowman's evidence concerning the shipments to North Carolina, but he particularly denied that the defendant Aman was present at any of the times charged in the indictment. Moreover, Lombardi expressly removed Aman from all of the meetings to which Bowman had testified. In fact he denied knowing Aman prior to June 19, 1952.

Walter Kniaz whose place of business is also located at 1510 South State Street, appeared on behalf of the Government. He admitted a conviction for larceny of a motorcycle...