United States v. Russo, 7763.

Decision Date10 November 1941
Docket NumberNo. 7763.,7763.
PartiesUNITED STATES v. RUSSO.
CourtU.S. Court of Appeals — Third Circuit

Anthony A. Calandra, of Newark, N. J., for appellant.

Charles M. Phillips and Richard J. Hughes, both of Trenton, N. J., for appellee.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The defendant was found guilty of receiving and having in his possession, with intent to convert to his own use, certain goods which had been stolen while in transit in interstate commerce, the defendant allegedly having knowledge that the goods had been stolen.

The indictment was laid under the Act of February 13, 1913, as amended January 21, 1933, c. 16, 47 Stat. 773, 18 U. S.C.A. § 409, which, in so far as it is material to the matter contained in the indictment, provides that "* * * whoever * * * with intent to convert to his own use any goods * * * which are a part of * * * an interstate * * * shipment * * * shall * * * receive or have in his possession any such goods * * *, knowing the same to have been stolen; * * * shall * * * be fined * * * or imprisoned * * *."

The defendant assigns for error the alleged insufficiency of the indictment and several matters occurring at trial, including the trial court's refusal of the defendant's request at the close of the trial for a directed verdict of acquittal. In the view we take of the case, it is unnecessary for us to consider any more than the latter assignment. A review of the material evidence adduced at trial impels the conclusion that it was insufficient to warrant the jury's finding that the defendant had knowledge that the goods, whereof he was merely a constructive possessor, had been stolen. The facts in the case are substantially without dispute.

The defendant Russo and one Ventre were partners in the operation of a garage and trucking business in Newark, New Jersey. Ventre managed the garage and had charge of the business done there, while Russo's job was to drive a truck in outside service. The firm also leased space in the garage to a local trucking company which made daily use of the inside of the garage as a terminal for freight transference. It was Russo's practice when he had finished his day's work to park his truck on the street outside the garage. Thereafter it would be put inside by an employee of the trucking company after they had withdrawn their trailers from the loading platforms in the garage. When Russo would return for his truck in the morning, he would find it again parked on the street outside the garage. He entered the garage only occasionally, — usually to receive his share of the firm's earnings which Ventre would have ready for him. In addition to the truck which Russo operated on the outside, and of which he was the owner, he and Ventre severally owned two other trucks which, not being in regular use, were stored in the garage. Some time between Saturday afternoon, July 9, and Monday morning, July 11, 1938, a number of cartons of cigarettes, which had been stolen while being moved in interstate commerce, were placed on the Ventre and Russo trucks which were stored inside the garage and tarpaulins were placed over the stolen goods. The goods remained there until July 13, when they were seized by men from the Federal Bureau of Investigation. At the same time Ventre and one or two others who were then about the garage were arrested. Russo was arrested later the same day at Paterson, New Jersey, while en route with his service truck. Both Ventre and Russo were indicted for receiving and having in their possession, etc., the stolen interstate shipment, knowing the goods to have been stolen. Ventre pleaded guilty.

There was no evidence that Russo had been in the garage between July 9 and July 13 or that he knew that there was anything loaded on his truck which was stored in the garage. The closest any government witness placed Russo to the stored trucks while the stolen goods were upon them was outside of the garage and it was testified by government witnesses, and was undisputed, that the goods on the trucks could not be seen by any one outside the garage. Russo himself admitted to having been outside the garage on the mornings of July 11, 12, and 13, when he obtained for his daily work his truck parked on the street in front of the garage. Ventre, who appeared as a witness for the government, was specifically unable to say that Russo had any knowledge that a portion of the cigarettes was on his stored truck, or that he had any knowledge whatsoever of the stolen property.

Viewing the evidence in the light most favorable to the government, as the jury's verdict of guilt requires, it is still quite apparent that Russo's possession of the stolen cigarettes was no more than constructive at most. The absence of any direct proof of Russo's possession renders that certain. His possession rested alone upon his ownership of one of the stored trucks upon which a portion of the stolen cigarettes was found.

The learned trial judge was of the opinion that Russo's possession of the stolen property, although impliedly established, was sufficient to warrant an inference that he knew that the goods had been stolen. In so ruling, the learned court below relied upon the authority of ...

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28 cases
  • Hale v. United States, 26318.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 15 d2 Abril d2 1969
    ...v. United States, 302 F.2d 603, 608 n. 8 (9th Cir. 1962). 9 See Espinoza v. United States, 317 F. 2d 275, 276 (9th Cir. 1963). 10 123 F.2d 420 (3d Cir. 1941). 11 Barfield v. United States, 229 F.2d 936, 942 (5th Cir. 1956) (concurring opinion). 12 United States v. Casalinuovo, 350 F.2d 207,......
  • Howard v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 6 d3 Dezembro d3 1967
    ...speculative "double" or "pyramided" inferences (United States v. Ross, 92 U.S. 281, 283-284, 23 L.Ed. 707 (1875); United States v. Russo, 123 F. 2d 420, 422 (C.A. 3, 1941). Rosenberg v. United States, 120 F.2d 935, 937 (C.A. 10, 1941); Nations v. United States, 52 F.2d 97, 105 (C.A. 8, 1931......
  • United States v. Casalinuovo
    • United States
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    • 2 d1 Agosto d1 1965
    ..."boss" of liquor store where beer whose purchase he had arranged was being stored in usual storage place for beer); United States v. Russo, 123 F.2d 420, 422 (3d Cir. 1941) (appellant and co-defendant owned garage and truck within it, but appellant seldom entered and was unaware of stolen c......
  • Bryan v. United States 13 8212 14, 1949
    • United States
    • U.S. Supreme Court
    • 16 d1 Janeiro d1 1950
    ...Court. First Circuit: Enrique Rivera v. United States, 57 F.2d 816; Third Circuit: United States v. Di Genova, 134 F.2d 466; United States v. Russo, 123 F.2d 420; Ridenour v. United States, 14 F.2d 888; Eithth Circuit: Pines v. United States, 123 F.2d 825; Scoggins v. United States, 255 F. ......
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