United States v. Schwartz, 364.
| Decision Date | 22 October 1945 |
| Docket Number | No. 364.,364. |
| Citation | 150 F.2d 627 |
| Parties | UNITED STATES v. SCHWARTZ et al. |
| Court | U.S. Court of Appeals — Second Circuit |
James Dempsey, of White Plains, N. Y. (Bartholomew A. Moynahan, of New York City, and Sidney Fischman, of Spring Valley, N. Y., of counsel), for appellant.
John F. X. McGohey, U. S. Atty., of New York City (John C. Hilly, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Writ of Certiorari Denied October 22, 1945. See 66 S.Ct. 97.
The appellant was indicted with four other defendants but was the only one against whom the case went to trial, a severance having been granted as to the defendant Colonna and three other defendants having pleaded guilty. One of the three, James Stegman, became a witness for the prosecution and testified as to the appellant's participation in the crimes charged; the other two, Florindo Isabella and Jack Kaps, did not testify. It was stipulated, however, that Kaps was willing to do so but, if called, would be unable to identify the appellant. Schwartz did not takes the stand and did not offer any proof; he rested at the conclusion of the Government's case. The jury found him guilty on both counts of the indictment, and the court imposed a sentence of ten years on count one and two years on count two to run consecutively.
Count one of the indictment charged the defendants with violating 18 U.S.C.A. § 409 by stealing from a Mack truck 495 cases of Scotch whiskey "moving as a part of a foreign shipment of freight consigned by James Martin & Co., Ltd., Leith, Scotland, to McKesson & Robbins, Inc., at No. 111 Eighth Avenue, New York, N. Y." Count two of the indictment charged a conspiracy by the defendants to meet in Hoboken, New Jersey on August 3, 1942 for the purpose of boarding a Hoboken-West Twenty-Third Street ferry, holding up the Mack truck carrying the whiskey described in count one, kidnapping its drivers, stealing the whiskey, and concealing it in a garage owned by the defendant Jack Kaps in Brooklyn, N. Y.
At the trial evidence was presented which would justify the jury in finding that the following facts were established. James Martin & Co., Ltd., Leith, Scotland, shipped 1000 cases of Scotch whiskey under a bill of lading providing for delivery at the Port of New York, running to the Manufacturers Trust Company, or its assigns, and bearing the notation, "Notify McKesson & Robbins, Inc., 111 Eighth Avenue, New York, N. Y." The cases were invoiced to McKesson & Robbins. Before the arrival of this whiskey on the steamer at Hoboken, New Jersey, McKesson & Robbins had paid the Manufacturers Trust Company, and the latter had assigned the bill of lading to them. McKesson & Robbins had also paid the freight charges but not the customs duty and taxes on the shipment. On the morning of August 3, 1942 McKesson & Robbins sent a bonded Mack truck operated by two of its employees to Pier 1 in Hoboken to pick up 495 cases of the whiskey and deliver them to its bonded warehouse at 111 Eighth Avenue, New York. It had previous to this date picked up 500 cases. The remaining five cases were kept out to go into the Public Stores for examination by Government appraisers. The 495 cases were loaded on the truck which then proceeded to the Hoboken-West Twenty-Third Street Ferry. It was followed aboard the ferry-boat by an automobile occupied by the defendants Schwartz, Isabella and James Stegman. When the ferry reached its slip at Twenty-third Street in New York City, the two men who were driving it were held up by Schwartz and Isabella at the point of revolvers, and were forced, after leaving the ferry, to stop the truck and get into the automobile in which Stegman had followed the truck. Stegman then drove the truck to Kaps' garage in Brooklyn, where the whiskey was unloaded. The empty truck was driven back to New York and abandoned. In the meantime Schwartz and Isabella had held the two truck drivers in captivity in some unidentified building.
The main contention of the appellant is that the...
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