United States v. D'Ercole

• Decision Date: 09 August 1955
• Docket Number: Docket 23677.,No. 345,345
• Citation: 225 F.2d 611
• Parties: UNITED STATES of America, Appellee, v. Joseph D'ERCOLE and Marty Russo, Defendant-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

225 F.2d 611 (1955)

UNITED STATES of America, Appellee, v. Joseph D'ERCOLE and Marty Russo, Defendant-Appellants.

No. 345, Docket 23677.

United States Court of Appeals Second Circuit.

Argued June 8, 1955.

Decided August 9, 1955.

J. Edward Lumbard, U. S. Atty., for the Southern District of N. Y., for appellee, Gabriel B. Schwartz, Asst. U. S. Atty., Brooklyn, N. Y., of counsel.

Arnold D. Roseman, New York City, for defendant-appellant, Joseph D'Ercole.

Robert Mitchell, New York City, for appellant, Marty Russo.

Before CHASE and MEDINA, Circuit Judges, and RYAN, District Judge.

CHASE, Circuit Judge.

Appellant Russo, who was convicted only on the conspiracy count, relies for reversal principally upon an asserted variance between the allegations in that count, which alleged a single conspiracy in which he and the appellant D'Ercole participated with eight other named co-conspirators and with others unknown, to violate 18 U.S.C. § 2312, and the evidence, which he contends proved not one conspiracy but several.

Three of the alleged co-conspirators, Joseph Turetsky, Richard Gould and Edward Wallace, pleaded guilty before the trial began and testified as witnesses for the government. Because of that there was much testimony from insiders and the evidence as a whole was ample to justify the jury in finding substantially as follows: —

In 1951 Joseph Turetsky and Richard Gould were partners doing business in the Southern District of New York under the trade name G. M. T. Motors, selling new and used automobiles both at retail and at wholesale. In December of that year appellant Russo and his partner Dominick Funaro went to the show room of G. M. T. Motors where they met Turetsky and Gould and then bought an automobile from them. In the following spring, Russo and Funaro sold two automobiles to Turetsky and Gould. These were not stolen cars, but they had paid for one of them in part by trading in a stolen car. In the summer of that year Russo told Turetsky and Gould that his connection with a company which rented cars would enable him to buy late model automobiles at attractive prices and that he would pay G. M. T. Motors a commission for selling them. After that G. M. T. Motors sold some cars for him and Funaro and bought at least three. Some time that fall Turetsky and Gould learned that the automobiles which they had received from Russo and Funaro had been stolen and, after they talked with Russo about that, he made them what he said was a good proposition. He admitted that the cars he and his partner had been selling Turetsky and Gould, and those they had been selling for him, had been stolen and explained how they had had the motor and serial numbers changed by an expert who turned out to be one Nicholas Pugliese. His "good proposition" was that Turetsky and Gould should find an exporter to buy stolen cars which he would deliver with distinguishing marks so altered that when they had been exported it would be difficult, or impossible, to trace them. He later explained to Turetsky and Gould the way in which he and Funaro stole the cars and the steps they took previous to a theft to facilitate the sale of them.

Their method was to pick out the cars they intended to steal and then to make out fake New York registrations for them for two previous years; doing that with aid of a forged New York Motor Vehicle Bureau stamp which they had, and then to prepare on the stationery of some authorized dealer false bills of sale to fictitious persons. They used fictitious serial and motor numbers in making out these papers which they then took to motor vehicle departments in other states where they exchanged them for genuine registrations in the names of the fictitious transferees. After that they stole the cars and had the motor and serial numbers changed to correspond with the numbers in the registrations. Turetsky and Gould agreed to buy the cars stolen in that way and tried, unsuccessfully for a while, to find someone to buy them for export. Whenever they would buy one of these stolen cars they would make out a check to the order of the "owner" as shown by the out-of-state registration and, after that name had been endorsed on the check, Russo and Funaro would cash it and divide the money with Turetsky and Gould in whatever way they agreed. While the efforts were being made to arrange for the export of the cars, the four men talked over the situation and decided to sell the cars, as occasion occurred, to dealers in states where motor vehicle laws and their method of enforcement made that seem reasonably safe.

Early in January 1953, however, Turetsky and Gould succeeded in making arrangements with an exporting firm, which was unaware that the cars had been stolen, to purchase cars for export and, after explaining such arrangement to Russo and Funaro, began to dispose of the cars in the following way. The exporting firm would give Turetsky and Gould orders for the cars they wanted. They would then turn these orders over to Russo and Funaro who would steal the cars, have the numbers changed and deliver them to Turetsky and Gould.

Appellant D'Ercole, who was an acquaintance of Turetsky and Gould, helped them make the arrangements with the exporting firm, after they had explained to him the way the automobiles were being obtained from Russo and Funaro and had offered to take him into the business on an equal basis with them if he would assist in disposing of the stolen cars. He was introduced to Russo and Funaro and agreed to come in and help.

It was thought best to have D'Ercole take and dispose...