United States v. D'AVANZO, 961
| Decision Date | 09 June 1971 |
| Docket Number | Dockets 71-1012,No. 961,71-1029.,962,961 |
| Citation | 443 F.2d 1224 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lewis Vincent D'AVANZO and Vincent Anthony Falcone, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Maurice Edelbaum, New York City, (Lawrence K. Feitell, New York City, of counsel), for defendant-appellant Vincent Anthony Falcone.
Evseroff, Newman & Sonenshine, Brooklyn, N. Y. (William Sonenshine, Brooklyn N. Y., of counsel), for defendant-appellant, Lewis Vincent D'Avanzo.
Mervyn Hamburg, Atty., United States Dept. of Justice, Washington, D. C. (Edward Neaher, U. S. Atty., E.D.N. Y., on the brief), for plaintiff-appellee.
Before KAUFMAN, ANDERSON and MANSFIELD,* Circuit Judges.
Appellants were convicted by a jury and subsequently sentenced under three counts of a four-count indictment, for possessing and transporting in interstate commerce, and in a truck whose cab had been stolen, a quantity of some 326 mercury cylinders which had previously been hijacked. The cylinders were being transported from a pier in Staten Island, New York, where they had arrived by ship in May 1969, to another pier in Brooklyn. The truck from which the cylinders were stolen was recovered the day after the hijacking.
Viewing the evidence most favorably to the Government, as we must at this juncture, United States v. Kahaner, 317 F.2d 459, 467 (2d Cir. 1963), cert. denied sub. nom. Corallo v. United States, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963), the proof at trial adequately supported defendants' convictions. Neither defendant was identified as a participant in the thefts either of the mercury cylinders or of the truck. Shortly after the cylinders (each of which weighed above 100 pounds) had been reported stolen, FBI agent George Moresco observed an International truck cab with a dump-truck type body (open on top) riding low on its axles and thus obviously carrying a heavy load, parked in front of a scrap metal yard on Staten Island. The truck was placed under surveillance and several agents followed it closely as the truck proceeded north from Staten Island via the Connecticut Turnpike to Watertown, Connecticut. During the course of this journey, FBI agent James Hays was able many times to observe D'Avanzo driving the truck and Falcone sitting in the passenger seat.
After the truck entered Watertown at about 2:30 a. m. on June 6, D'Avanzo appeared to be getting ready to turn into a street leading to the Infeld Metal Company but then for some reason changed his mind and proceeded ahead for two more blocks before turning into a U-shaped residential street, Bessamy Avenue,1 which led nowhere but back to the road upon which the truck had been traveling, Falls Avenue. D'Avanzo parked a short distance down Bessamy Avenue. While several FBI agents remained in another car on Falls Avenue (contiguous to Bessamy), Agent Hays stopped his car short of Bessamy Avenue and walked toward the other FBI vehicle, whose headlights were on. The agents saw appellants leave the truck and walk in their direction for a short distance. But then, as they approached Hays, both turned in the opposite direction and proceeded at a trot into a swampy wooded area behind Bessamy Avenue.
Their retreat prompted Agent Hays to inspect the inside...
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