United States v. DeKunchak

• Decision Date: 26 September 1972
• Docket Number: Docket 72-1339.,No. 891,891
• Citation: 467 F.2d 432
• Parties: UNITED STATES of America, Appellee, v. Nicholas DeKUNCHAK, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

467 F.2d 432 (1972)

UNITED STATES of America, Appellee, v. Nicholas DeKUNCHAK, Appellant.

No. 891, Docket 72-1339.

United States Court of Appeals, Second Circuit.

Argued July 19, 1972.

Decided September 26, 1972.

Paul D. Lazarus, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., for the E. D. N. Y., David G. Trager, Asst. U. S. Atty., of counsel), for appellee.

Harvey Weissbard, Orange, N. J. (Querques, Isles & Weissbard, Orange, N. J., on the brief), for appellant.

Before FEINBERG, MULLIGAN and OAKES, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal by Nicholas DeKunchak from a judgment of conviction in the United States District Court for the Eastern District of New York, entered after a jury trial before the Hon. John R. Bartels. DeKunchak was indicted on three counts. He was convicted on Count II, charging the transporting and causing to be transported in interstate commerce a quantity of Vitamin B-12 concentrate, knowing the same to have been stolen, in violation of 18 U.S.C. §§ 2314 and 2. He was sentenced to a term of 18 months imprisonment on this charge. He was also convicted on Count III, of receiving, selling and disposing of the same material, which was part of and constituted interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. §§ 2315 and 2. On this count he was placed on probation for three years following the completion of his jail sentence.¹ Judgment is affirmed.

In May 1968 a five drum shipment of Vitamin B-12 was shipped by truck from Lederle Laboratories, Pearl River, New York to the Spector Motor Freight warehouse in Secaucus, New Jersey to be forwarded to the Upjohn Company in Kalamazoo, Michigan. The shipment was from a batch designated "161" and each drum bore the packaging control number "A 180046". In some manner not disclosed in the record, the shipment disappeared and was never delivered to Upjohn in Kalamazoo. Upjohn made a claim against Spector for the value of the goods and was reimbursed in the sum of $6,900, the full amount of its claim. On July 24, 1968 five drums of Vitamin B-12 and five shipping labels, all bearing the control number "A 180046" and all fitting perfectly on the drums from which they had been removed, were delivered in Manhattan by one Joseph Zarrett to Irwin W. Weinstein, a United States Customs Agent, who was acting in an undercover capacity. There was testimony that the B-12 delivered to Weinstein matched a sample of the "161" batch and although it is possible, it would be unusual that another batch would identically match the original Lederle product. Weinstein paid $3,000 for the five drums which is less than half its value, as evidenced by Spector's payment to Upjohn.

The transactions which preceded the transfer of the B-12 in Manhattan from Zarrett to Agent Weinstein were obviously not conducted in a normal business atmosphere and the government's case was principally based on the testimony of Stanley Steinschreiber, a pharmaceutical manufacturer from Long Island, who was admittedly interested in dealing in stolen chemicals and pharmaceuticals. Steinschreiber visited the New Jersey plant of one Frank Alberte early in 1968 to purchase equipment. Steinschreiber advised Alberte of his interest in stolen chemicals and Alberte told him to contact his accountant, Zarrett, who was described as having the proper contacts for merchandising stolen drugs. Alberte also introduced Steinschreiber as "one of the boys" to the defendant Bosonac, who later asked him if he could get rid of a quantity of ephedrine hydrochloride. Steinschreiber stated it was necessary for him to know who had been the consignee in order to preclude a sale to the same party from whom it had been stolen. This possibility is not only embarrassing but dangerous in this type of business. Bosonac assured him that the goods had been shipped from Europe consigned to the Gaines Chemical Company. Steinschreiber advised Zarrett that the ephedrine was available and Zarrett in turn contacted undercover agent Weinstein who agreed to pay $3,000 for the chemical.

In the spring of 1968 Alberte introduced Steinschreiber to the defendants DeKunchak and Deo at a diner in New Jersey. DeKunchak then advised Steinschreiber that the ephedrine deal was really his and Deo's and that Bosonac was simply working on a commission basis. At the meeting DeKunchak also offered Steinschreiber quantities of Vitamin B-12 concentrate. After some complications not material to this appeal, the ephedrine sale to Weinstein was completed and the record establishes that the chemical had been stolen from Gaines Chemical Company.

On July 3, 1968 Agent Weinstein again met with Zarrett and indicated his interest in Vitamin B-12 concentrate. Zarrett produced an original drum label and indicated that five drums were available for $7,000. Steinschreiber testified that on this sale he was acting as an agent for DeKunchak and Deo and was taking the B-12 on consignment only. His deal was that if he could sell the B-12 he would pay DeKunchak $1,000 and retain the balance as his commission. On July 24th Weinstein advised Zarrett that he was only willing to pay $3,000 and this price was agreed upon. Zarrett stated that his "partner" would get the merchandise in New Jersey and Zarrett would make delivery at a designated place in Manhattan later that afternoon. Steinschreiber drove to Newark in his Lincoln Continental, which carried New York plates, and met DeKunchak in Newark, New Jersey the same afternoon. They met Deo at his garage and the three men loaded the drums of Vitamin B-12 into the trunk of Steinschreiber's car. Steinschreiber then drove from Newark to his home in Valley Stream, Long Island. There he met Zarrett who transferred the five drums from the Lincoln into his own car. Federal agents had observed Steinschreiber's activities in New Jersey but lost him in traffic before he left the state. However, his Long Island house was also under surveillance and the transfer to Zarrett's car was observed. Later in the afternoon Zarrett met Weinstein in Manhattan at the designated meeting place. He transferred to him the five drums of Vitamin B-12 as well as the remaining four original labels which were identical to the one already received. Weinstein paid Zarrett $3,000. Zarrett then paid Steinschreiber, who returned to New Jersey and paid DeKunchak $1,000. DeKunchak then asked Steinschreiber whether he would be interested in more stolen chemicals.

No defendant testified in this case and the only defense witness was Alberte who admitted that he knew Steinschreiber, Zarrett and Bosonac, but stated that he had never met Deo and DeKunchak until the present litigation.

Appellant argues that his motion for acquittal on Counts II and III should have been granted because there was a failure to establish that the five drums of B-12 delivered to Steinschreiber by DeKunchak and Deo in Newark were the same five drums delivered to Weinstein by Zarrett later that afternoon, and further that there was a failure to establish that the Vitamin B-12 concentrate was in fact stolen. Neither argument has merit.

The record fully supports the proposition that the five drums picked up by Steinschreiber were the same five delivered later by Zarrett to Weinstein and produced on trial. DeKunchak was clearly interested in selling B-12, Steinschreiber picked up the five drums from DeKunchak and he and Zarrett were observed by a Customs Agent removing the drums at Valley Stream and placing them in Zarrett's car. Later that day Zarrett transferred the drums to Weinstein, who paid the agreed price. Steinschreiber then returned to New Jersey to pay DeKunchak.

Steinschreiber testified that the drums he received from DeKunchak and Deo were "banged up," but the drums sold to Weinstein were evidently undamaged. It is not altogether certain from this testimony, however, that the damaged drums were the ones containing the B-12. DeKunchak and Deo had also given Steinschreiber drums containing Vitamin B-2 or D-2 crystals. Moreover, there would be no reason at all for Steinschreiber's pay-off to DeKunchak, if he had not sold DeKunchak's B-12. The resolution of this question, together with the evaluation of Steinschreiber's and the Customs Agents' testimony on this point, was clearly a question for the jury. United States v. Taylor, 464 F.2d 240, 243-245 (2d Cir. 1972).

Appellant concedes that the Government need not establish the stolen character of the goods by direct evidence. United States v. Marcus, 429 F.2d 654, 656 (3d Cir. 1970). There was ample evidence here from which the jury could infer theft. The five drums of B-12 in the possession of DeKunchak and Deo bore the same labels as those missing from the Spector Warehouse. The compound was chemically identical to that which disappeared. They were sold for less than half of their value by people who were dealing with a person admittedly trafficking in stolen chemicals and who had previously dealt in the stolen ephedrine. Moreover, no explanation at all was proffered which would suggest that appellant's possession of the pharmaceutical was innocent. The surreptitious and furtive transfers provided ample evidence to support the inference that DeKunchak was fully aware that he was dealing in stolen chemicals. United States v. Edwards, 366 F.2d 853, 867 (2d Cir. 1966), cert. denied, 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782 (1967). The chain of evidence here is convincing and the refusal of the trial court to direct an acquittal was clearly sound. See United States v. Taylor, supra.

Appellant argues that there was insufficient proof to establish that the appellant knew or should have foreseen that the goods were to be transported out of state. The record establishes that DeKunchak was well aware that Steinschreiber was based in New York. He had telephoned him in New York and he helped load his car, carrying New York plates, with the B-12 on the day that the...