United States v. Minieri

• Decision Date: 31 May 1962
• Docket Number: No. 117,Docket 27071.,117
• Citation: 303 F.2d 550
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlo P. MINIERI and Salvatore Saponaro, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

303 F.2d 550 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Carlo P. MINIERI and Salvatore Saponaro, Defendants-Appellants.

No. 117, Docket 27071.

United States Court of Appeals Second Circuit.

Argued December 5, 1961.

Decided May 31, 1962.

Joseph P. Hoey, U. S. Attorney, E.D. N.Y. (Dominick L. DiCarlo, Asst. U. S. Atty., Jerome C. Ditore, Asst. U. S. Atty., of counsel), for plaintiff-appellee.

Louis Kaye, New York City, for defendants-appellants.

Before WATERMAN, SMITH and MARSHALL, Circuit Judges.

WATERMAN, Circuit Judge.

After a jury trial in the United States District Court for the Eastern District of New York, appellants Carlo P. Minieri and Salvatore Saponaro were convicted of possessing goods they knew to have been stolen from a truck while the goods were a part of interstate commerce. 18 U.S.C. § 659 (1958). The jury deliberated twenty-four hours before reporting the verdicts.

The indictment contained two counts, the first that Minieri had the goods in his possession on March 31, 1959, the second that Saponaro possessed them at some time between the day they were stolen, March 12, 1959, and March 31, 1959. At the close of the Government's case and at the close of all the evidence each defendant moved for dismissal of the indictment and for a directed acquittal on the ground that the evidence was insufficient to establish his guilt. The motions were denied and the defendants claim the denials were erroneous.

Both appellants also maintain the trial court committed reversible error when he required the jury, which had received the case in mid-afternoon, to remain locked up overnight in order to resume deliberations in the morning. No objection was made to this procedure at the time.

Appellant Minieri took the stand. He produced eight witnesses who testified to his good reputation, and he claims judicial error in that the charge the trial judge gave the jury as to character and reputation evidence was prejudicially erroneous. No request for a different charge was submitted to the court, and no objection to the charge as given was made.

We hold that there was sufficient evidence against Minieri to require the submission of the case against him to the jury, but that Saponaro's motion to dismiss the indictment as to him should have been granted. A recital of the facts follows.

It was established by uncontradicted evidence that at 4:00 P.M. on March 12, 1959, one hundred forty-four sealed cartons containing approximately fifteen thousand dozen women's undergarments were loaded at Bestform Foundations, Inc., 38-01 47th Avenue, Long Island City, New York, onto a truck owned by an Al's Auto Express; that thereupon the cartons were in interstate commerce; and that when the loading was completed the vehicle was driven to the trucking company's terminal at 234 West 29th Street in Manhattan where it was parked on the street. At about 12:40 A.M. on the morning of March 13, the night foreman of Al's Auto Express discovered that the truck was gone. On March 14 a police officer found it empty at Van Dam and Meeker Streets in Long Island City.

Alphonse Buttacy, the president of Economy Auto Painting, Inc., whose business premises are located in Long Island City across the street from Bestform Foundations, Inc., and one of his employees, were government witnesses. Buttacy testified that in February 1959 he had rented a section of his basement to an L & M Trucking Company. Buttacy negotiated the lease arrangements with a man named "Mike" whose last name and address were unknown to him. About March 15 he observed a number of cartons in a pile in the part of the basement rented to L & M Trucking Company. The employee testified that on several occasions about the middle of March he saw appellant Minieri's truck parked in the basement, and that on March 27 he saw Minieri loading cartons onto the truck.

Several FBI agents testified to a series of events that occurred on March 30 and 31. At about 8:30 P.M. on March 30 agents observed Minieri's truck arrive and park across the street from Economy Auto Painting. The driver of the truck, whom the agents could not identify from their places of surveillance, went into the Economy shop. While the driver was inside the agents obtained the license number of the truck, and one of them noticed that the name "Minieri" was written on its door. The truck was empty. At about 10:00 P.M. the truck driver and another man emerged from Economy Auto Painting, entered a Pontiac parked in front of that shop and drove away. The Pontiac was followed to the Nassau County line. Another FBI agent testified that at 8:16 the next morning, March 31, an unidentified man entered Minieri's truck, which had remained parked across the street from Economy Auto Painting all night and had been continuously under surveillance, and drove it into the basement of that shop. A half hour later the truck pulled out of the basement and proceeded north on 39th Street toward Queens Boulevard.

It was followed by Federal agents who stopped it at about 9:20 A.M. at Eleventh Avenue and 40th Street in Manhattan near the entrance to the Lincoln Tunnel. Minieri was alone in the cab. He explained to the agents that he was taking freight to New Jersey, but admitted he had no shipping documents. However, he did produce a slip of paper on which was written "Paul's Diner, New Jersey, Route 3, New Jersey." He claimed that this was the address to which he was to deliver the freight. Minieri then consented to the inspection of his truck. It was completely loaded with cartons marked "Bestform," being eighty-one of the one hundred forty-four cartons which had been taken from the Al's Auto Express truck on March 13.

At the agents' request Minieri drove his truck to the New York City office of the Federal Bureau of Investigation. FBI Agent Stewart testified that, after being advised of his rights, Minieri told the agents that early on the morning of March 31 a man known to appellant as Charlie Napoltano telephoned Minieri's wife; that she told Napoltano that her husband could be found at the parking lot on Ninth Street, Long Island City, where he kept his truck; that at approximately 8:00 A.M. Napoltano arrived at the parking lot and offered Minieri thirty dollars to haul a load of goods to New Jersey for him, Napoltano explaining to Minieri that he needed Minieri's services because his own truck had broken down; that Minieri agreed to make the haul for that price; that the two of them then proceeded to 35th Avenue near Ninth Street in Long Island City, where Napoltano's truck was; that Minieri then backed his truck up to the rear of Napoltano's truck, the two men transferred the freight from one truck to the other, and Minieri then headed for New Jersey with Napoltano's load. Agent Stewart further testified that after Minieri had told this tale he told Minieri that Minieri had been watched driving his truck away from Economy Auto Painting. Minieri thereupon admitted that, contrary to the above story, he had gotten the cartons from the premises of Economy Auto Painting. The excuse he offered for not saying so at first was that he did not wish to involve the owners of Economy Auto Painting. However, he asserted to the agent that his remaining statements made that day were true.

It was the FBI testimony that upon being asked what kind of car he drove Minieri stated he drove a 1951 Pontiac belonging to a used car dealer in Great Neck, Long Island, for whom Minieri worked part time; and that he had left the Pontiac overnight at Economy Auto Painting on the previous night to have some body work done on it. When an agent told Minieri that the car had been seen arriving at the shop early on the morning of March 31, Minieri admitted that he had made a mistake in saying that he left the car overnight, and then explained that Napoltano met him at the auto shop that morning, the two then went to the parking lot where Minieri kept his truck, drove the truck back to Economy Painting, and there loaded it with freight, Minieri having asked Napoltano if the merchandise was stolen merchandise and Napoltano having replied that it was not.

Agent Stewart testified further concerning his conversation at FBI headquarters with Minieri. His testimony was that he had shown Minieri a number of photographs and asked him to identify Napoltano from among them. Minieri pointed out a photograph of a Carmine Santoro as the man he knew as Napoltano. Appellant said he had heard the name Santoro but had always called that man Napoltano because the latter name was written on the truck the man drove. Then Minieri signed a statement setting out his transaction with Napoltano and his identification of the photograph.

Minieri testified in his own behalf at the trial. He stated there that on the morning of March 31 Charlie Napoltano came to Minieri's parking lot and asked him to deliver a load of merchandise to New Jersey because Napoltano's truck had broken down, the two of them then went in two cars, Minieri driving a Pontiac, to Economy Auto Painting, where Minieri saw the freight and agreed to transport it to New Jersey. Then they went back to Minieri's parking lot, got Minieri's truck, returned to the basement of Economy Painting and loaded the freight. He testified he did not know what was in the cartons. He also denied ever identifying the photograph of Carmine Santoro. He claimed, too, that when he was arrested he had an estimate from Economy Auto Painting dated March 31, 1959, for repairs to the Pontiac which he had been driving. The witnesses for the Government, including the used-car dealer Minieri had worked for, contradicted this statement. In addition to his own testimony, Minieri, as we have stated earlier, called eight character witnesses to aid him in his defense.

Having recovered eighty-one of the stolen cartons on the morning of March 31, that afternoon, pursuant to a search warrant, FBI agents searched the section of the basement...