United States v. Di Carlo, 329.

• Decision Date: 03 April 1933
• Docket Number: No. 329.,329.
• Citation: 64 F.2d 15
• Parties: UNITED STATES v. DI CARLO.
• Court: U.S. Court of Appeals — Second Circuit

64 F.2d 15 (1933)

UNITED STATES v. DI CARLO.

No. 329.

Circuit Court of Appeals, Second Circuit.

April 3, 1933.

Lehr, Goldman & McGovern, of Buffalo, N. Y., for appellant.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Frederick T. Devlin, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The statute reads: "Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished; * * *" and "Whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished. * * *" U. S. C. title 18, § 408 (18 USCA § 408).

While the offenses of transporting a motor vehicle in interstate commerce and of receiving, concealing, or storing such a vehicle that is a part of interstate commerce, knowing it to have been stolen, may be established by circumstantial evidence, there must, of course, be sufficient proof, whatever its nature may be, to justify the submission of the case to a jury.

Even if the altered motor number, the registration of the car in the name of an unascertainable owner, the defendant's denial that he had even seen the car or operated it, or knew anything about it or about Goldman, be regarded as circumstances showing that Di Carlo was knowingly a receiver of stolen goods, it may still be argued that they furnished no sufficient proof that he had transported or caused the car to be transported from Chicago or had received, concealed, or stored it when moving in interstate commerce. It may indeed be argued that the license issued in New York in the name of Frank Goldman eight weeks before the defendant was seen driving in the car indicated that it had come to rest in that state and ceased to be a subject of interstate commerce prior to the time when he acquired it; and this argument is said to be strengthened by the fact that there was no definite proof that he had any connection with the taking out of the license. His denial at police headquarters that he knew anything about the car may have been induced by the fear of a man who had knowingly received a stolen car after it had ceased to move in interstate commerce, and was in danger of prosecution in the state courts, or even by no more than the unfounded alarm of one under arrest.

But, though we cannot know that the defendant stole this car or received it with knowledge that it was stolen, and cannot be assured that with such knowledge he caused it to be transported or that he received or concealed or stored it, while moving in interstate commerce, we think that the evidence was sufficient to justify a verdict to that effect.

There was evidence that the car found in defendant's control had been stolen in another state three months before, that the motor number had been altered, that the registration was in the name of a fictitious person, and that, when questioned at police headquarters, the defendant had denied all connection with the car and all knowledge of Frank Goldman, the putative owner. No attempt was made to call witnesses to explain the situation and meet the inference that may be drawn against a man in possession of property recently stolen. While, as Judge Manton said in Drew v. United States (C. C. A.) 27 F.(2d) 715, at page 716, "The presumption of guilt flowing from such possession grows weaker as the time of possession recedes from the time of the original taking," we held in Boehm v. United States, 271 F. 454, that a jury might infer guilt, when the possession of stolen goods was unexplained, though in that case a longer time had elapsed between the taking and the discovery of possession in the defendant than here. In Boehm v. United States, supra, eight automobile tires had been stolen by some one from a railroad car. Four months after the burglary, two of these tires were sold by the defendant at a very low price, and nine months after the...