United States v. Dilella

• Decision Date: 29 December 1965
• Docket Number: No. 15012.,15012.
• Citation: 354 F.2d 584
• Parties: UNITED STATES, Plaintiff-Appellee, v. Charles C. DILELLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

354 F.2d 584 (1965)

UNITED STATES, Plaintiff-Appellee, v. Charles C. DILELLA, Defendant-Appellant.

No. 15012.

United States Court of Appeals Seventh Circuit.

December 29, 1965.

Elsie C. Spears, Lawrence Gunnels, Chicago, Ill., for defendant-appellant, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Arthur L. Dunne, Lawrence Jay Weiner, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and MERCER, District Judge.

MERCER, District Judge.

Defendant, Alfonse Cozzi and Anthony Butera were charged in a one-count indictment with the possession of 999 cases of chewing gum which had been stolen from an interstate shipment, with knowledge that the goods had been stolen, in violation of 18 U.S.C. § 659.

Butera pleaded guilty to the charge.

Defendant appeals from a judgment of conviction upon the verdict of a jury finding him guilty of the charge made in the indictment.

Defendant first contends that the government failed, as a matter of law, to prove one essential element of the offense charged, namely, that the goods had been stolen.

The government adduced uncontradicted evidence from which the jury could find the following facts. On September 8, 1964, at Long Island City, New York, the American Chicle Company loaded 1,941 cases of American products, including 999 cases of chewing gum, into a certain Pennsylvania Railroad piggyback trailer and shipped the same under a bill of lading to Acco Assembly Distributors at Cleveland, Ohio. The trailer was transported by Pennsylvania Railroad train to Celeveland and off-loaded at Cleveland on September 11, 1964. It was then placed in a trailer park used by Pennsylvania Railroad and other shippers for storage and dispatching of trailers. On September 13, 1964, the trailer was observed on the lot by an employee of another trucking company. On September 15, 1964, an employee of Cleveland Cartage Company presented the proper delivery documents for delivery of the trailer from the lot to Acco. The trailer could not be found on the lot. The Federal Bureau of Investigation was notified, and on September 16, 1964, agents of the FBI discovered the trailer at the B-J Truck Stop in Chicago, Illinois. The seal affixed by the shipper had been removed and the door of the trailer was then secured by a padlock.

Later the same day, FBI agents observed defendant and Butera driving a panel truck onto the lot, opening the doors of the trailer and backing the truck up to the rear of the trailer. Defendant, Butera and Cozzi were each observed engaged in removing cartons from the trailer into the panel truck. After a number of cartons had been loaded onto the panel truck, the trailer door was locked and the three men left the lot with Butera driving the panel truck and defendant riding with Cozzi in an unlicensed 1954 Chevrolet automobile. Both vehicles were stopped by FBI agents and the three men were placed under arrest. The agents found the panel truck loaded with 243 cartons of American Chicle products. When arrested, defendant produced certain effects from his person, including the key for the padlock on the Pennsylvania Railroad trailer.

After the arrest, the trailer was released to the Pennsylvania Railroad and removed by it to its Chicago yards. On the following day, FBI agents and Pennsylvania employees inventoried the contents of the panel truck which were, with the exception of nine cases, retained by the FBI, then restored to the trailer. The trailer was sealed and transported to Acco in Cleveland, under seal. When opened at Cleveland, the contents were inventoried upon being unloaded at Acco. That inventory showed that the original shipment was then intact and that the contents of the trailer at that time were identical to the commodities shown on the original bill of lading from American, except for the nine cases which had been held by the FBI in Chicago.

Though the evidence was circumstantial, it cannot be doubted that the jury could find, as a fact, that the goods had been stolen. The shipment left New York and arrived at Cleveland, but it never reached the consignee. By some person, or persons, and some method unknown the trailer was removed from the Cleveland lot to Chicago, many miles offroute from its destination.

It was not necessary for the government to produce eye-witnesses to prove the theft, United States v. Allegrucci, 3 Cir., 258 F.2d 70, or to prove that the shipment was not in Chicago by mistake. Corey v. United States, 9 Cir., 305 F.2d 232, 237, cert. denied 371 U.S. 956, 83 S.Ct. 511, 9 L.Ed.2d 503. Circumstantial evidence of theft is sufficient to support the verdict. United States v. Spatuzza, 7 Cir., 331 F.2d 214, 216, cert. denied 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38, United States v. Minieri, 2 Cir., 303 F.2d 550, 555, cert. denied 371 U.S. 847, 83 S.Ct. 79, 9 L.Ed. 2d 81.

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, cited by defendant, simply holds that a conviction based upon proof of an offense different from that alleged in an indictment cannot stand.

In United States v. Carangella, 7 Cir., 198 F.2d 3, there was lacking any proof that either of the defendants, Blandi or DiVito, ever had possession of the stolen goods. The same is true of United States v. Wainer, 7 Cir., 170 F.2d 603.

Other cases cited by defendant are likewise readily distinguishable from this case. E. g., United States v. Rappaport, 2 Cir., 312 F.2d 502; United States v. Moynihan, 3 Cir., 258 F. 529; United States v. Craig, E.D.Pa., 91 F.Supp. 531.

It was not necessary, as defendant argues, that the government prove that the shipment was stolen between New York and Cleveland. That allegation of the indictment is merely descriptive of the interstate character of the goods involved. Proof of a theft from whatever place prior to the delivery of the goods to the consignee is sufficient to sustain the conviction.

There can be no question that the proof was adequate to show defendant's possession...