United States v. Carlucci

• Decision Date: 02 March 1961
• Docket Number: 13162.,No. 13136-13141,13136-13141
• Citation: 288 F.2d 691
• Parties: UNITED STATES of America, Appellee, v. Victor CARLUCCI, Joseph Giordano, Daniel Hanna, Joseph Merola, Norman Rothman, Stuart Sutor, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

288 F.2d 691 (1961)

UNITED STATES of America, Appellee, v. Victor CARLUCCI, Joseph Giordano, Daniel Hanna, Joseph Merola, Norman Rothman, Stuart Sutor, Appellants.

Nos. 13136-13141, 13162.

United States Court of Appeals Third Circuit.

Argued March 24, 1960.

Reargued November 17, 1960.

Decided March 2, 1961.

Michael von Moschzisker, Philadelphia, Pa., Vincent M. Casey, Pittsburgh, Pa. (Margiotti & Casey, V. J. Rich, Pittsburgh, Pa., Max Lurie, Miami, Fla., on the brief) for appellants.

Hubert I. Teitelbaum, U. S. Atty., Daniel J. Snyder, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

Reargued November 17, 1960, before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.

Reargued En Banc, November 17, 1960.

McLAUGHLIN, Circuit Judge.

These appeals have been taken by six defendants who were tried and convicted together in the District Court for the Western District of Pennsylvania for substantive crimes and a conspiracy involving the alleged receiving, possession, transportation and exportation of a quantity of firearms stolen from the Government of the United States. All of the appellants urge that the evidence presented by the Government failed to prove beyond a reasonable doubt that they were guilty of the conspiracy or of the substantive crimes. Our review of the evidence as to the appellants Carlucci, Merola, Rothman and Sutor convinces us that there was at the very least, substantial evidence to support the jury verdict. Regarding appellants Giordano and Hanna, a detailed account of their connection with the conspiracy is necessary. We note at the outset, the fundamental proposition that in so doing, "The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." United States v. Giuliano, 3 Cir., 1959, 263 F.2d 582, 584.

When the illegal shipment of the guns was seized by the federal agents, the guns were wrapped in used burlap bags that were turnd inside out. To connect these burlap bags with Giordano and thereby tie him into the conspiracy, the government offered the following affirmative proof: that sometime prior to the seizure of the guns, Palumbo, an employee of another of the defendants, Carlucci, had purchased 100 used bags turned inside out for the appellant Giordano from the Arnold Cash Feed Store; that the Arnold Cash Feed Store only sold used bags in this form; that this was an unusually large purchase; that the bags which were wrapped around the guns were used burlap bags turned inside out; that upon F.B.I. laboratory analysis, the residual content of the bags wrapped around the guns was found to be a scratch feed composed of wheat, oats and cracked corn; that this was the same type of grain found at the Arnold Cash Feed Store, under the seat of the plane, and in the bed of the panel truck used to transport the guns to the plane.

Giordano was the only defendant to testify. He stated that he knew the defendants Carlucci and Hanna for approximately fifteen years. He admitted sending Palumbo to purchase the bags for him, but denied talking to Carlucci on that day. He said that the bags were to be used as a protection for newly planted grass on his lawns. He testified that Palumbo put the 100 bags in the back of his car which he drove home that evening. When he went to look for the bags the next day, he discovered that his daughter had taken the car with the bags in it to Robert Morris School in Pittsburgh. Upon her return a few days later, he placed them in his cellar and subsequently used some of them on his lawn. He further testified that because of this incident, he had purchased 30 other bags from the store in the interim.

In rebuttal, the government produced the testimony of an F.B.I. agent who had gone to Giordano's home to question him ten days after the seizure of the guns. The agent said that at this interview, Giordano stated that on the day he requested Palumbo to purchase the bags, he had spoken with Carlucci. Giordano also told the agent that his daughter had taken the bags to Seton Hill College in Greensburg and not Robert Morris School as his direct testimony had indicated. Upon inspection of the premises the agent discovered 148 bags: 99 in Giordano's cellar, 40 on the front lawn, 6 under the rear porch, and 3 in the trunk of his car. In addition to the numerical discrepancy between the number of bags Giordano admitted purchasing from the Arnold Cash Feed Store (130 bags), and the number found on his premises (148 bags), a close examination of the 99 bags in his cellar showed that they were new bags turned right side out.

Close examination of the evidence concerning Giordano's participation in the conspiracy, leaves no doubt that it was sufficient to take that question to the jury and to justify that body in concluding that the bags admittedly purchased by Giordano were the ones wrapped around the illegal shipment of guns. Such a finding connects Giordano with the conspiracy and makes him a party thereto. Cf. United States v. Cohen, 3 Cir., 1952, 197 F.2d 26, 29.

In his brief appellant Giordano argues that even if the jury did so find,

"There is no suggestion that Giordano did anything else or had any knowledge of what anybody else did or agreed to do. There is not any indication that he had a stake in the venture within the meaning of United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204 85 L.Ed. 128. He is entitled to the protection of the Falcone rule and the rule that one does not become a party to a conspiracy by aiding and abetting it unless one knows of the conspiracy. Direct Sales Company v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265 87 L.Ed. 1674."

In United States v. Giuliano, 3 Cir., 1959, 263 F.2d 582, 584-585, we precisely outlined the scope of the Falcone doctrine as follows:

"As the Supreme Court said in Direct Sales Co. v. United States, 1943, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674, the Falcone case stands for the proposition `that one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally.\' The gist of the rationale for the case of United States v. Falcone may be found at pages 210-211, of 311 U.S. at page 207 of 61 S.Ct.: `Those having no knowledge of the conspiracy are not conspirators, * * * and one who without more furnishes supplies to an illicit distiller is not guilty of a conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge.\' (Emphasis supplied). Cf. Direct Sales Co. v. United States, supra."

As is readily seen the principle is not applicable here. Giordano makes no assertion that he is an innocent dealer or supplier of goods to the conspirators. Nor does anything appear in the evidence that could support that sort of surmise. Moreover, there was other proof in addition to that identifying the bags wrapped around the guns as those bought by Giordano. The jury had before it, the long term association between Giordano and the defendants Carlucci and Hanna, that when Giordano purchased the bags he was at Carlucci's place of business, that he spoke with Carlucci at that time, and that he sent one of Carlucci's employees to purchase the bags for him. This collocation of circumstances provides an adequate basis upon which the jury could logically conclude that Giordano did have knowledge of the conspiracy and was an integral part of it. United States v. Giuliano, supra; United States v. Monticello, 3 Cir., 1959, 264 F.2d 47.¹

Two main arguments are urged on behalf of the appellant Hanna. First, it is contended that even though there was clear evidence identifying Hanna as the driver of the truck whose cargo had been transferred to the plane which was subsequently seized with the illegal shipment of guns, there was no proof that the truck's cargo was the illegal shipment of guns. Factually, appellant's position is that the guns could have been placed on the plane at some other place between Remick Field, near Pittsburgh, Pennsylvania, and the Morgantown Airport, in West Virginia. The government proof discounts this theory. It shows that the plane took off empty from the Allegheny County Airport, Pittsburgh, about 9:00 A.M. on the particular day. It arrived at Remick Field at 9:30 A.M. A telephone call was then placed from the field to Carlucci's home, and approximately 15 minutes later, Hanna arrived with the truck. The cargo from the truck was transferred to the plane, the process taking approximately one hour. The plane left at 11:00 A.M. and landed an hour later at the Morgantown Airport where it was seized. The distance between Remick Field and the Morgantown Airport was 67 miles. The weight of the seized cargo of guns was 1200 pounds.

These events and their chronology, while not spelling it out completely, did furnish enough justification for the jury's deduction that the items transferred to the plane from the truck driven by Hanna were the guns subsequently seized.

Next, appellant asserts:

"* * * even if guns were being loaded into the plane on November 4 to the knowledge of Hanna there is no evidence to show that he was anything more than a chauffeur * * *."

In essence, this is the same theory urged on behalf of Giordano, i. e., lack of knowledge of the conspiracy. Again it is defeated by the trial evidence and legitimate inferences therefrom. That evidence pointed to Hanna as the driver of the truck. More important with relation to Hanna's assertion of lack of knowledge is the testimony that when the plane arrived at Remick Field a call was made from the airport to Carlucci's home and a short time thereafter, Hanna arrived...