United States v. Kessler
| Decision Date | 13 March 1958 |
| Docket Number | Docket 24824.,No. 204,204 |
| Citation | 253 F.2d 290 |
| Parties | UNITED STATES of America, Appellee, v. Morris Joseph KESSLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph Panzer, New York City (Edward Halle, New York City, of counsel), for defendant-appellant.
Cornelius W. Wickersham, Jr., U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Peter E. DeBlasio, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.
Before HINCKS and LUMBARD, Circuit Judges, and GALSTON, District Judge.
Appellant appeals from a judgment of conviction entered July 9, 1957, in the District Court for the Eastern District of New York (Bruchhausen, J.), after a trial without a jury.
The indictment contained two counts, the first charges appellant Kessler, together with Kinsella, Castellitto and Torta, with transporting across State lines aluminum valued at more than $5,000, knowing the same to have been stolen (Title 18 U.S.C. Secs. 2 and 2314), and the second charges the same defendants with conspiracy to transport stolen merchandise in interstate commerce of a value of more than $5,000 (Title 18 U.S. C. Sec. 371).
Kinsella pleaded guilty to both counts; Castellitto pleaded guilty to Count 2, and defendants Torta and Kessler were tried together and both found guilty on both counts.
In February 1956, Kinsella met Castellitto in a parking lot next to the Reliable Warehouse Company in Newark, New Jersey, and planned to steal aluminum. The first theft occurred in early March 1956, when Castellitto drove to the Reliable Warehouse in a car followed by Torta in a truck. Kinsella worked at the Reliable Warehouse. Kinsella, Castellitto and Torta then loaded the aluminum from that warehouse on the truck, and a few days later Castellitto gave Kinsella $550.00 as his share of the theft. Later Kessler joined the conspiracy, and was bound by it. United States v. Sansone, 2 Cir., 231 F.2d 887.
On April 11, 1956, Kinsella telephoned Castellitto that he had another load of aluminum. Kessler hired a trucker named Coles to pick up the load in the Reliable Warehouse and to take it to Brooklyn. Kessler told Coles that Torta, who was present, should acompany him. Then later, Castellitto telephoned Kinsella that the truck was on its way. When the truck arrived at the Newark warehouse, Kinsella and Torta loaded eight skids of aluminum on the truck. Kinsella told Torta to cut off the labels, and Torta did in fact cut off many of them from the skids.
After the eight skids of aluminum had been loaded, Coles and Torta drove back to the truck terminal in Jersey City where Torta told Coles they should park for the night and be ready to meet Torta's boss in the morning in Brooklyn.
The following day, April 12th, Coles and Torta met at the truck terminal and drove the truck to the Brooklyn Steel Warehouse in Brooklyn, where they met Kessler. Coles asked Kessler for the name to be put down in the Brooklyn Steel Warehouse as the owner of the aluminum, and was informed by Kessler to put down the name Ding Do Steel Company. Ding Do Steel Company was one of Kessler's corporations or companies. Thereafter Kessler, through an intermediary, sold the aluminum to one Ackerman for $5,659, and thereafter Castellitto gave Kinsella $1,400 as his share.
When Kessler was arrested by FBI Agent Kelly, he denied knowing anything about the aluminum in the Brooklyn Steel Warehouse. A piece of paper with Torta's telephone number was...
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