United States v. Olivo

• Decision Date: 02 May 1960
• Docket Number: No. 13051.,13051.
• Citation: 278 F.2d 415
• Parties: UNITED STATES of America v. Joseph Ralph OLIVO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

278 F.2d 415 (1960)

UNITED STATES of America v. Joseph Ralph OLIVO, Appellant.

No. 13051.

United States Court of Appeals Third Circuit.

Argued March 10, 1960.

Decided May 2, 1960.

Albert G. Besser, Newark, N. J. (Martin D. Moroney, Newark, N. J., on the brief), for appellant.

Paul T. Smock, Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J. on the brief), for appellee.

Before GOODRICH, STALEY and FORMAN, Circuit Judges.

STALEY, Circuit Judge.

Appellant's attack upon his conviction is tripartite, alleging (1) error by the court in admission of a waybill into evidence pursuant to the Federal Business Records Act, 28 U.S.C. § 1732; (2) failure of the prosecution to prove theft of the air compressor from a designated place along the interstate route, as provided in 18 U.S.C. § 659; and (3) error by the court in denying his motion for judgment of acquittal.

The appellant, Joseph Ralph Olivo, was indicted under 18 U.S.C. § 659 by the Grand Jury for the District of New Jersey on February 17, 1959. The indictment contained eight counts charging unlawful possession of eight separate items of merchandise, all alleged to have been stolen from the Newark, New Jersey, terminal of Spector Freight System, Inc., while moving in interstate commerce. Following presentation of its direct case, the government moved for dismissal of counts 1 and 5, and the court granted appellant's motion for judgment of acquittal on counts 3, 4, 7 and 8. A similar motion as to counts 2 and 6 was denied. Appellant renewed this motion at the end of the case, but it was once again denied. Upon submission of the case to the jury a verdict of guilty was returned as to count 6, which involved possession of an air compressor, and a verdict of not guilty returned with reference to a fan (count 2). Accordingly, the appellant was sentenced to pay a $500 fine and placed on probation for five years.

The facts relied upon by the government, which the record amply supports, may be summarized as follows: Pursuant to an order from the Safeway Stores, Incorporated, the Gardner Denver Company on July 10, 1958, shipped to Safeway Store No. 951, South River, New Jersey, an air compressor bearing serial No. 217759 by way of Lee Transportation Company and Spector Freight System, Inc. (Spector). On the following day employees of Spector made out a waybill bearing No. 05-170057 to cover the shipment of the air compressor. On July 12, 1958, the air compressor was received at Spector's Newark terminal, and on July 15, 1958, it was loaded on trailer truck 7222 for delivery. The compressor was returned to the terminal undelivered, and the driver executed a Spector Driver's Report for Over and Returned Freight. When the dock supervisor went to reload it the next day, he found it to be missing. Late in December, agents of the Federal Bureau of Investigation, after obtaining the signed permission of appellant, searched his home and discovered the compressor in the rear of his basement behind cartons and under a tarpaulin. One of the FBI agents testified that appellant stated he was minding the compressor "for a guy" and didn't care to disclose his name for fear he would get him into trouble. At trial, appellant testified he had ordered a compressor from a man at the Ramp Restaurant parking lot and that he had purchased it from him in September or October of 1958 for $160. He further testified he had seen the man selling various things for over a period of two years but did not know his name. Three of appellant's fellow workers at the Spector terminal also testified concerning this individual, but they were equally unable to identify him by name.

Initially, appellant urges that the admission of the waybill pertaining to the shipment of the air compressor into evidence was error. The government tendered it for admission to establish the interstate character of the shipment. Under Section 659 of Title 18, the waybill or other shipping document of such shipment is prima facie evidence of the place of origin and the place of destination. The court, however, correctly recognized that admission of the waybill itself into evidence was to be tested by the ordinary rules and concluded that it was admissible pursuant to the Federal Business Records Act, 28 U.S.C. § 1732(a). The Act provides:

"(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

"All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

"The term `business,\' as used in this section, includes business, profession, occupation, and calling of every kind."

Specifically, appellant's objection is grounded upon the fact that the witness who testified concerning the waybill and its preparation did not actually prepare it himself nor did he directly supervise its preparation. Rather, Mr. Dillman, Spector's Newark terminal manager, testified to the company procedures concerning preparation of waybills in general and indicated that they were prepared at the point of origin within the Spector transportation system. Where Newark was the point of origin they were prepared under his supervision, but since this shipment had originated with another carrier it was waybilled by Spector when delivered to it at Peoria, Illinois....