United States v. De Normand, 256.

• Decision Date: 14 May 1945
• Docket Number: No. 256.,256.
• Citation: 149 F.2d 622
• Parties: UNITED STATES v. DE NORMAND et al.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 622 (1945)

UNITED STATES v. DE NORMAND et al.

No. 256.

Circuit Court of Appeals, Second Circuit.

May 14, 1945.

Morris E. Packer, of Brooklyn, N. Y., and Morris D. Reiss, of New York City, for appellants.

John F. X. McGohey, U. S. Atty., (John C. Hilly, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

The appellants were found guilty on all nine counts of an indictment. Each of the first eight counts was based on 18 U.S. C.A. § 409 and charged that the defendants "unlawfully, wilfully and knowingly did steal, take and carry away from certain trailer trucks of the Rapid Motor Lines, Inc." goods belonging to various shippers or consignees and forming part of an interstate shipment of freight. The ninth count charged conspiracy to violate said section 409. Cumulative sentences of imprisonment were imposed with the result that DeNormand has received a term of 17 years, Oddo 15 years, and La Cascia, King and Mugavero, 12 years each. All of the appellants rely upon the same points for reversal; they contend (1) that the undisputed proof shows that section 409 was not violated; (2) that Stegman's act in driving away one of the trucks cannot be imputed to the appellants; (3) that the consecutive sentences are illegal; (4) that the corpus delicti was not proved; and (5) that error was committed in denying them inspection of statements given to the United States Attorney by a witness for the prosecution.

On the night of November 30, 1943 the five appellants met near the terminal of Rapid Motor Lines, Inc., an interstate carrier of freight, for the purpose of putting into execution their previously arranged plan to hijack two truck loads of liquor which they knew were to be sent out that night to New Haven, Conn. They were accompanied by one Stegman whom they regarded as a confederate, although he was actually a government informer working in conjunction with agents of the Federal Bureau of Investigation. The terminal was located on the west side of Tenth Avenue between 23rd and 24th Streets in New York City. Inside the terminal building were two loaded trucks referred to as truck 3 and truck 4. Truck 3 was a canvas top truck without seals; it contained the merchandise involved in counts 1 and 2 of the indictment. Truck 4 was a completely closed truck with locked doors and contained the merchandise involved in counts 3 to 8 inclusive. Roche, the dispatcher for the Rapid Motor Lines, locked the doors of the terminal, set the burglar alarm and left at about 5:30 P.M. Shortly before midnight the two employees who were to drive trucks 3 and 4 to New Haven arrived at the terminal in two other trucks. They opened the terminal doors, drove out trucks 3 and 4, and parked them on the east side of Tenth Avenue, leaving the cabs open and the ignition unlocked; truck 4 was parked between 23rd and 24th Streets, truck 3 between 24th and 25th Streets. The drivers put in the terminal the trucks in which they had arrived, closed and locked the terminal doors and reset the burglar alarm; they then walked to a restaurant at the corner of Tenth Avenue and 23rd Street for a cup of coffee. Some 15 minutes later they left the restaurant and, as they approached their two parked trucks, the appellants held them up, forced them at gun point to open and enter the terminal, and there gagged and bound them and left them in an empty truck. The appellants then walked from the terminal and were arrested by federal agents who had been watching the terminal since 7 P.M. Meanwhile Stegman had driven away truck 3 to a garage at 117th Street and First Avenue which the appellants had selected for "a drop". He testified that in so doing he was following DeNormand's instructions but had no intent to steal the truck or its contents as he was cooperating with the federal agents.

The foregoing is a summary of the facts relied upon by the prosecution to establish the substantive offenses. Much evidence was adduced at the trial to show the conspiratorial background. Government witnesses testified that the plan to hijack the liquor had originated in the mind of DeNormand and that through his efforts the other defendants had been brought into the conspiracy. DeNormand, on the other hand, testified that Stegman had instigated the plan and that the defendants had merely followed Stegman's leadership. In short, it was the theory of the defense that the defendants had been entrapped into committing a crime they would not otherwise have undertaken. This defense is not renewed upon appeal, nor could it be; for the judge charged the jury as to the law of entrapment, and the jury by its verdict found that the criminal intent had originated with the defendants rather than with Stegman.

(1) The first contention of the appellants is that there was no violation of 18 U.S.C.A. § 409 with respect to truck 4 because there was no asportation of that truck or any of its contents. Neither the appellants nor Stegman ever moved it from where driver Fiak had parked it, nor did they even touch it. If the statute prohibited only common law larceny of goods moving in interstate commerce, we should agree that some asportation, however slight, was essential to constitute the offense. See 2 Wharton, Criminal Law, 12th Ed. § 1163; Harrison v. People, 50 N.Y. 518, 10 Am.Rep. 517; State v. Alexander, 74 N.C. 232. But the statute is not framed in terms merely of larceny and its prohibitions should not be restricted to technical common law larceny. In White v. United States, 2 Cir., 273 F. 517, 518, Judge Hough remarked that "The essential object of this statute is to create, define, and punish the offense of abstracting or unlawfully having in possession goods while in interstate or foreign transit, and thereby interfering with interstate or foreign commerce." Verbally the statutory language embraces "whoever shall steal or unlawfully take, carry away, or conceal * * * with intent to convert to his own use any goods" which are a part of an interstate or foreign shipment of freight. In United States v. Handler, 2 Cir., 142 F.2d 351, certiorari denied October 9, 1944, 65 S.Ct. 40, this court pointed out at page 353 of 142 F.2d that in various federal statutes the word "steal" or "stolen" has been given a broader meaning than larceny at common law, and we held that the National Stolen Property Act, 18 U.S. C.A. § 415, applies to any taking whereby a person dishonestly obtains goods or securities belonging to another with the intent to deprive the owner of the rights and benefits of ownership. The purpose and the language of the statute now before us require an equally broad construction. In United States v. Cohen, 3 Cir., 274 F. 596, 597, the court said that the word "steal" is defined by the words "unlawfully take, carry away, * * * with intent to convert to his own use", and expressed the opinion that "To constitute `stealing' there must be an unlawful taking and carrying away" with the requisite intent. In our opinion this view fails to observe that the statutory prohibitions are stated in the disjunctive. We believe that the language should be construed as...