United States v. Kearse, 942

• Decision Date: 10 June 1971
• Docket Number: No. 942,Docket 71-1056.,942
• Citation: 444 F.2d 62
• Parties: UNITED STATES of America, Appellee, v. Peter Edward KEARSE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

444 F.2d 62 (1971)

UNITED STATES of America, Appellee, v. Peter Edward KEARSE, Appellant.

No. 942, Docket 71-1056.

United States Court of Appeals, Second Circuit.

Argued May 28, 1971.

Decided June 10, 1971.

Phylis Skloot Bamberger, The Legal Aid Society, New York City (Robert Kasanof, New York City, of counsel), for appellant.

David G. Trager, Asst. U. S. Atty. (Edward J. Boyd V, of counsel, Edward R. Neaher, U. S. Atty., E. D. N. Y., on the brief), for appellee.

Before KAUFMAN, HAYS and MANSFIELD,^* Circuit Judges.

KAUFMAN, Circuit Judge:

This appeal presents the single issue whether the evidence introduced at appellant Kearse's nonjury trial was sufficient to warrant his conviction for knowingly possessing goods stolen from interstate commerce, 18 U.S.C. § 659, for which offense Kearse was sentenced to imprisonment for three years. We hold that it was not.

At approximately 9:30 on the morning of June 15, 1970, a truck containing some 40 cartons of knitwear valued at over $12,000 and destined for Maryland and Puerto Rico was hijacked by three men on the streets of Brooklyn. Agents of the Federal Bureau of Investigation were contacted the following day by an informer who stated that the booty was being stored in the ground floor apartment at 177 Hart Street, Brooklyn. The informer revealed that he had spoken with four individuals on the premises, who appeared to be narcotics users, and that they had offered to sell the admittedly hijacked goods to him, explaining that a quick disposition was essential. Bearing a search warrant obtained on the basis of this and other information provided by the informant, FBI Agents Ahearn and Roussell arrived at the front door of the Hart Street apartment at about 12:30 on the afternoon of June 17. When knocking elicited no response, Agent Ahearn announced his identity and purpose, and demanded entry. Prompted to immediate action by a shuffling sound from within, the agents then broke through the front door and entered a small living room nearly filled with the 40 cartons of knitted goods they were seeking. Defendant Kearse was observed standing in an open archway between the living room and the adjoining kitchen, perhaps six feet from the pile of cartons.

The government introduced no evidence to connect Kearse with the stolen knitwear apart from Kearse's proximity to the goods at the time of the search. No relationship was shown to exist between Kearse and the lessees of the ground floor apartment, John Molloy¹ and Rose Barrows. Kearse's testimony that he maintained a residence elsewhere in Brooklyn was not contested. Nor was Kearse shown to have any right of access to or control of the Hart Street premises. Finally, neither the FBI informant nor the driver of the hijacked truck identified Kearse as one of the men they had encountered in connection with the theft and attempted sale of the knitwear.

Kearse attempted to explain his presence at the Hart Street apartment by testifying at trial that Molloy had invited him there the day before for a dose of methadone. According to Kearse's story he was waiting for Molloy to return with the drug when the FBI agents knocked. Kearse further testified that he had faced away from the living room the entire time he had awaited Molloy's return in the kitchen, and had therefore not noticed the cartons. On cross-examination Kearse admitted that he was addicted to heroin, and refused to explain how he could afford...