United States v. Rappy

• Citation: 157 F.2d 964
• Decision Date: 13 January 1947
• Docket Number: Docket 20290.,No. 36,36
• Parties: UNITED STATES v. RAPPY.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

157 F.2d 964 (1946)

UNITED STATES v. RAPPY.

No. 36, Docket 20290.

Circuit Court of Appeals, Second Circuit.

November 6, 1946.

Writ of Certiorari Denied January 13, 1947.

Louis H. Solomon, of New York City, for appellant.

Martin J. McLaughlin and John F. X. McGohey, U. S. Atty., both of New York City, for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

Writ of Certiorari Denied January 13, 1947. See 67 S.Ct. 501.

L. HAND, Circuit Judge.

Rappy appeals from a conviction for possessing, in company with one, Essig, goods, stolen while they were being imported into the United States.¹ He raises three questions: (1) The sufficiency of the proof that the goods found in Essig's possession were stolen during importation; (2) the failure to prove possession by him, as distinct from Essig; (3) the admission in evidence of a written statement, taken in preparation for trial, from one, Moskowitz, a witness for the prosecution. The facts in outline were as follows: The steamer, "Yaka," arrived at the Port of New York in November, 1945, carrying a number of cartons of Swiss watch movements. The custom authorities set apart upon the pier two of these cartons for examination, of which, when they came to be removed, one was found to have been rifled. Another carton of those described on the "Yaka's" manifest was missing upon the outturn. On December 3rd, Rappy telephoned to one, Weinstein, asking him whether he could use some watch movements; Weinstein said "no," but that he might find a buyer. Later Rappy and Essig went to Weinstein's office where was also one, Moss, a decoy. Essig produced two sample watch movements of the same kind as those described on the manifest; and later Essig bought about 1300 such movements which, in Rappy's presence, Essig said had been stolen in France. Essig also said that he was giving Rappy one dollar for each movement out of ten dollars, the agreed price. Rappy, Essig and the decoy were arrested as they left Weinstein's office. Earlier Rappy, over the telephone, had offered to one, Moskowitz, a haberdasher, watch movements which Rappy described as "hot" — a thieves' word for stolen — but Moskowitz would have nothing to do with them. After his arrest Rappy went to Moskowitz's shop and told him, if he should be interviewed, not to tell any government agents of their telephone talk.

The documents, put in evidence by the prosecution to prove that the watch movements had been imported, were of four kinds. First, was the manifest of the "Yaka" which recorded the cartons as part of the cargo; second, were the bills of lading delivered for the cartons; third, was a "delivery record book" kept by a contractor employed by the steamship company, in which truckmen in New York had written receipts of delivery of the cartons; fourth, were some official records kept by Custom House officials. The last were proved to be official documents, and became competent as such to prove their contents. As to the first three the prosecution apparently meant to avail itself of § 695, Title 28 U.S.C.A., and supposed that it had fulfilled the conditions of that statute, when it proved that the documents had been kept "in the regular course of any business" of the steamship company. That was not quite enough, for it is in addition necessary to show that "it was the regular course of such business to make such memorandum or record at the time." Rappy objected generally that the "proper foundation had not been laid" for the admission of the documents; and, although from his cross-examination his objection appears really to have been because the witness had no first hand acquaintance with the recorded transactions, nevertheless we might have found some embarrassment in sustaining the ruling, if the supporting testimony had not in fact supplied the missing proof. We take judicial notice that it is the uniform maritime "course of business" for the master, or the mate, when he issues bills of lading to enter upon them cargo, and only cargo, which has come over the rail, or at least what the carrier has already received; and that he does this at approximately the time of receipt. Hence to prove that a given bill of lading was issued in the regular course of the ship's business is also to prove that it was the duty of the entrant to make the entries as records of the facts recorded. As to the manifests we also take judicial notice that they are made up from the bill of lading, and that it is part of the duty — usually of the mate or other executive officer — to prepare them at the time the ship breaks ground, or soon thereafter. They are evidence that the ship has actually lifted the cargo described, when taken in connection with the bills of lading themselves. As to the "delivery record book," the contractor of the steamship kept it, and the consignees' truckmen...