United States v. Casalinuovo

• Citation: 350 F.2d 207
• Decision Date: 02 August 1965
• Docket Number: Docket 29648.,No. 551,551
• Parties: UNITED STATES of America, Appellee, v. Domenick CASALINUOVO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

350 F.2d 207 (1965)

UNITED STATES of America, Appellee, v. Domenick CASALINUOVO, Defendant-Appellant.

No. 551, Docket 29648.

United States Court of Appeals Second Circuit.

Argued June 21, 1965.

Decided August 2, 1965.

Robert L. King, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. Southern District of New York, New York City, on

the brief, James M. Brachman, Asst. U. S. Atty., of counsel), for appellee.

Jesse Rothman, New York City (Edward Cherney, New York City, of counsel), for appellant.

Before MOORE and ANDERSON, Circuit Judges, and LEVET, District Judge.^*

MOORE, Circuit Judge:

Domenick Casalinuovo was indicted on one count for unlawfully possessing certain goods known to have been stolen from interstate commerce in violation of 18 U.S.C. § 659. The other count of the indictment charged Joseph James Percodani with having so stolen the goods. No motions for a severance having been made, they were tried together before Judge Murphy and a jury, and were each found guilty. Casalinuovo appeals (Percodani is appealing separately) claiming that the Government failed to establish his unlawful "possession" of the goods and that the trial court committed reversible error in allowing statements by Percodani to be read to the jury without deletion of references to Casalinuovo.

The evidence establishes at least the following. On August 26, 1964, six cartons and one hamper containing men's and women's slacks and shorts, of value in excess of $100, were being shipped by truck from Pennsylvania to New York City. The goods were not delivered to the consignee, who so informed the carrier responsible for the shipment. Percodani, its employee, was the driver. The theft was reported to the F. B. I. the next day, and on August 28th Percodani was arrested by F. B. I. agents Fuson and Roberts. He then executed a signed statement; a second statement was executed on August 31st. That day agent Fuson swore out a warrant for the search of the premises at 116 Mott Street, which he and agent Roberts executed the same day. At that address, they encountered appellant, two children, and one Sandra Stevens, who was a part owner of the building. (Appellant's daughter and another of his relatives owned the other interests in the building.) The agents identified themselves as such and advised both Stevens and appellant that they had a right not to say anything, that anything they said could be used against them in court, and that they could consult counsel before making any statements. Stevens then said that appellant was the janitor of the building, and she requested him to show the basement to the agents. He took the agents to a courtyard which provided access to the basement rooms. There was a steel door bearing a heavy padlock, and the agents asked appellant if he had a key; he indicated that he did not. After appellant's confusing answers about there being no way to get the door open, but that it was open, agent Roberts, thinking that appellant was stalling, said that if appellant did not open the door or tell them how to open it they would have to break it open. Appellant answered "that's up to you," and he "just stood there" when Roberts asked him to help unlock the door. After Roberts failed to open the lock by pulling on it "with all the force" he could exert, he opened the door with a long, crowbar-like, piece of metal that he had found. The door led to the boiler room and another interior room in which the agents found some radios and other goods, but none of the stolen goods in question.

In the courtyard again, the agents approached another steel door. A chain running through the door frame and a hole in the door was joined on the outside by a closed padlock. A similar conversation followed, with Roberts asking for a key and appellant saying the door was not locked, and again the agents warned that they might have to break the lock. Agent Roberts pulled the lock and the door frame started shaking. Finally, the piece of metal was again used to break the door open. This door led to the meter room and another adjoining interior room in which the agents found the stolen hamper, three of the stolen cartons — all empty — and sixteen pairs of the stolen slacks, of a value exceeding $100. Appellant was then arrested.

There was additional evidence tending to establish appellant's possession of the goods. As superintendent, as the building agent described him, appellant had various duties, including replacement of fuses in the meter room and taking care of conditions such as flooding in the basement. One of the residential tenants at 116 Mott Street testified that early in August she and an electrician had tried to go to the meter room to see if her meter were being used illegally by someone else. They found the door padlocked and the electrician was unable to open it. They were able to enter only after the tenant located appellant, who removed the lock and opened the door. As appellant's body blocked her vision, she could not see if he had used a key in opening the lock. Later, in October, she went down to put a lock on her meter but the basement door was locked from the inside. A man inside made reference to "Mickey" when she asked about getting in. She went upstairs to appellant, addressed him as Mickey, and told him she could not get in; he went down and got the man inside to open the door.

None of the owners stored anything in the basement of the building, and the other two Casalinuovos neither lived in the building nor even had keys to it. A business tenant of the building — owner of a butcher shop — said that he did not store goods in this area of the basement and had not been there for a year. The defense presented another business tenant who said that to replace burned out fuses he had been to the meter room about twenty or thirty times on about ten different days; some he thought were in July and August, but he could not be specific. However, he stored no goods in these rooms. Although he agreed that the door always had a lock and chain on it, he said he never found it locked and was always able to open it himself. It is not apparent how he did so.

Miss Stevens also testified for appellant that the lock was a "dummy lock" which could be opened by lifting but not by pulling. The Government suggested that her testimony might be biased, as she admitted that appellant was the father of her two children.

The crime in question is "possession" of goods known to have been stolen from interstate commerce, and it cannot be assumed that Congress was intending to impose criminal liability only upon those persons caught red-handed holding goods they have seen stolen from an interstate truck or train. Accordingly, the courts have held the statute to reach "constructive" possession as well as actual possession, i. e., such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant's dominion and control as if it were actual possession. Cf. Holmes, The Common Law 216 (1881). In charging the jury on the issue of possession, the main one in the case as to appellant, the court said that the question for them was: "Did the defendant Casalinuovo have such possession and control of that room where some of the goods were found so that it can reasonably be said that he had possession of the merchandise?" Appellant had made no requests to charge and also made no objection to the charge given. We think the charge was adequate and the evidence sufficient under it to establish appellant's unlawful possession.

The unlimited variety of goods moving in interstate commerce, combined with almost as unlimited a variety of schemes and means for stealing and disposing of them, make the nature of unlawful possession a highly factual matter to be appraised case by case. Consequently an extended comparative discussion of the cases would not be too illuminating. Suffice it to say that the inferences which could be reasonably drawn from the evidence as to appellant's relationship to the goods place the case within the ambit of the cases in which the evidence of possession — actual or constructive — has been thought sufficient. See, e. g., Sterling v. United States, 333 F.2d 443 (9th Cir.), cert. denied, 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344 (1964); United States v. Spatuzza, 331 F.2d 214 (7th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L. Ed.2d 38 (1964); United States v. Crisafi, 304 F.2d 803 (2d Cir. 1962); United States v. Thomas, 282 F.2d 191 (2d Cir. 1960); United States v. Page, 277 F.2d 3 (2d Cir.), cert. denied, 364 U.S. 843, 81 S.Ct. 83, 5 L.Ed.2d 67 (1960); United States v. McNeil, 255 F.2d 387 (2d Cir.), cert. denied, 358 U.S. 836, 79 S.Ct. 59, 3 L.Ed.2d 73 (1958); United States v. DeVivo, 246 F.2d 773 (2d Cir.), cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); United States v. Williams, 194 F.2d 72 (7th Cir. 1952); United States v. Cordo, 186 F.2d 144 (2d Cir.), cert. denied sub nom. Minkoff v. United States, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686 (1951); Le Fanti v. United States, 259 F. 460 (3d Cir. 1919); United States v. Strickland, 205 F.Supp. 299 (E.D.Mich.1962); cf. United States v. DeSisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964); United States v. Curzio, 170 F.2d 354 (3d Cir. 1948); United States v. De Normand, 149 F.2d 622 (2d Cir.), cert. denied, 326 U.S. 756, 66 S.Ct. 89, 90 L.Ed. 454 (1945). See also Beyda v. United States, 324 F.2d 526 (9th Cir. 1963).

In the cases finding insufficient evidence of possession, the relationship between the defendant and the stolen goods has been far more tenuous than that which the jury could find here. See, e. g., Embree v. United States, 320 F.2d 666, 668 (9th Cir. 1963) (appellant merely knew someone who had whiskey for sale and was able to get price for potential customer); United States v. Minieri, 303 F.2d 550, 556-557 (2d Cir.), cert. denied, 371...