United States v. Sherman

• Decision Date: 29 December 1948
• Docket Number: No. 28,Docket 21001.,28
• Parties: UNITED STATES v. SHERMAN et al.
• Court: U.S. Court of Appeals — Second Circuit

171 F.2d 619 (1948)

UNITED STATES v. SHERMAN et al.

No. 28, Docket 21001.

United States Court of Appeals Second Circuit.

December 29, 1948.

Zeitz, Harris & Moscowitz, Harold Cowin, Joseph Aronstein, and Eugene F. Bannigan, all of New York City, for Maimone.

Saul L. Harris, of New York City, for Sherman.

Vine H. Smith, of Brooklyn, N. Y., for Whelen.

Joseph Aronstein, of New York City, for Gramaldi, argued for appellants.

J. Vincent Keogh, U.S. Atty., and Edward S. Szukelewicz, both of Brooklyn, N.Y., for appellee.

Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.

L. HAND, Chief Judge.

Sherman and Whelan appeal from convictions under counts one and three of the indictment here at bar; Gramaldi and Maimone appeal from convictions under counts two and three. The first count was for stealing goods while they were moving in foreign commerce; and second count was for receiving, and having possession of, the same goods, knowing them to be stolen; the third count was for a conspiracy to steal and conceal the goods. Sherman's appeal is based upon the insufficiency of the evidence to support a verdict in a criminal prosecution, and upon several other points, only one of which it will be necessary to consider: i. e. the admission in evidence of the contents of a written statement of the chief witness for the prosecution. Whelan's appeal is based (1) upon the failure of the prosecution to prove that the goods were moving in foreign commerce; (2) upon the misjoinder of charges and of defendants; and (3) upon the erroneous admission of declarations of some of the co-defendants. Gramaldi's appeal is based (1) upon the insufficiency of the evidence; (2) upon a remark of the district attorney; and (3) upon a portion of the judge's charge to the jury. Maimone's appeal is based (1) upon the insufficiency of the evidence; and (2) upon the fact that the crime, if any, was not committed in the Eastern District of New York. The following is a statement of the facts as the jury might have found them, if they accepted the testimony of the prosecution's chief witness, Oliva, an informer who had been a confederate of the accused.

Sherman and Whelan, in company with several others, not including Gramaldi and Maimone, met in a saloon in Brooklyn, known as "Ponzo's Bar," on March 4, 1946, to agree upon a place where they could temporarily deposit some bales of duck canvas, which they had already planned to steal from a truck that was to carry them to the "docks" on the following day. On the fifth they seized and drove away the truck with the bales on board, while the driver had gone to a steamship office to secure from the carrier the papers which would evidence his delivery of the bales. Sherman and Whelan rode the truck to the agreed place, called "Paul's," unloaded the bales, and abandoned the truck. On the eighth Gramaldi and Oliva went to "Paul's," put the bales on another truck, and drove to a place called "Kaplan's" in Manhattan, where they, assisted by Maimone and another of the accused, called Mastromarino, unloaded and deposited them, and from where they were later disposed of. Oliva did not testify that Gramaldi and Maimone were present when the bales were stolen; or that Sherman and Whelan were present when they were delivered at "Kaplan's." However, if the jury believed his testimony, Sherman and Whelan were guilty of the theft and were indeed among the prime movers in the undertaking.

Sherman argues that this evidence, even though it might serve in a civil action, was not cogent enough to sustain a conviction; but this rests upon a misconception of the law. The question, whether a judge shall submit the evidence to a jury for a verdict, is no different in a criminal prosecution from the same question in a civil action; in each it is whether the evidence will rationally support a finding in favor of the party having the affirmative. The only added protection given the accused in a prosecution is that the jury must be satisfied of his guilt beyond a reasonable doubt. This we have held many times;¹ and we should affirm Sherman's conviction, were it not for the admission of the statement that we have mentioned, which got into the case in the following way. After his arrest Oliva made a written statement to an officer of the Federal Bureau of Investigation, in which he did not mention Sherman as being connected with the transaction at all; and said that it was Whelan who had been the driver of the truck. At the trial, however, he testified, not only that Sherman was a party to the theft, but that it was he who drove the truck. Sherman put in the written statement to impeach this testimony; and to break the force of the impeachment the judge allowed the prosecution to get before the jury part of the contents of a second written statement, made by Oliva to an officer a few weeks after the first, in which he told the story as he had testified on the stand.

Concededly the second statement was not competent unless the admission of the impeaching statement made it so, for when Oliva made it he had the same motive to fabricate — the hope of lenity — that he had while on the stand.² Rationally, it is true, the fact that he changed his story so soon after making the contradictory statement, may have added to the persuasiveness of his testimony; and for that matter most persons would probably consider any earlier consistent account, in some measure at least, confirmatory of a witness's testimony. The reason for its exclusion is because it has not been made on oath rather than because it has no probative value, although courts have often spoken as though it had none. However, such a statement is as incompetent when the witness has been impeached by an inconsistent statement, as when he has not been. So the Supreme Court decided many years ago;³ and although the point has apparently never come up again in that court, the lower federal courts have several times applied or recognized the doctrine.⁴

It is true that, when the witness's testimony was not impeached, but only "aspersed" by the defendant's counsel, we held that the admission of such a corroboratory statement was harmless error,⁵ but we should scarcely have warrant for doing so here. Sherman's connection with the stealing of the truck was of course crucial under the first count, and nearly so under the third. Oliva's failure to include him in his first version might well have thrown doubt upon his later testimony; and, as we have just said, his early correction of that version was, rationally, not an inconsiderable circumstance. The prosecutor certainly thought so, for he used it in summing up the case to the jury. We cannot be certain that it made no difference in the verdict, and Sherman's conviction must be reversed and the cause remanded as to him. Obviously, so far as the second statement had any effect whatever upon Whelan, it strengthened his defense.

Whelan's chief insistence is that the goods had not begun to move in foreign commerce. The evidence about this was that the sellers had labelled the bales with the names of the consignees and their addresses: "Mombassa, Kenya, British East Africa"; and had put them on the truck of a man, named Cohen, who had contracted to carry them to the dock where they were to be delivered to the steamship company. As we have said, the truck had come near enough to the dock for the driver to go after his receipt; but Whelan argues that, as the bales had not yet come into the possession of the carrier, they had not entered foreign commerce. His chief reliance is Coe v. Errol⁶ and United States v. Yellow Cab Co.⁷ In United States v. Fox⁸ we discussed Coe v. Errol, supra, and we have nothing to add to what we then said. The situation then before us was the same as that at bar except that the truck driver had there already received the bill of lading from the railway clerk. It may be argued that this changed the possession from the truck owner to the railroad, though that is doubtful, but in any event we think it irrelevant. It is true that the Eighth Circuit in Wolk v. United States⁹ implied that interstate commerce did not begin before delivery to a common carrier; but we did not agree with them in United States v. Fox, supra;⁸ and we do not now. We then made it the test that the goods should leave the possession of the shipper, and come into the custody of someone who without more than inevitable pauses was to pass them along. The Third Circuit went even further in United States v. Gollin¹⁰ for the truck which was stolen was the seller's, and had merely moved from the loading platform to where a driver was to mount it to take it out of the state. United States v. Yellow Cab Co., supra⁷ may be thought to look the other way; and it does caution us against too ready an assumption that all parts of an uninterrupted journey which begins in one state and ends in another are interstate commerce. It may be difficult by any general proposition to distinguish between the continuous journey of persons and of goods; but the court certainly intimated that there might be a distinction in specific instances when it said 332 U.S. on page 231, 67 S.Ct. on page 1567, 91 L.Ed. 2010: "Moreover, what may fairly be said to be the limits of an interstate shipment of goods and chattels may not necessarily be the commonly accepted limits of an individual's interstate journey." We do not believe that this decision has recognized the doctrine implicit in Wolk v. United States, supra,¹¹ and we adhere to our ruling in United States v. Fox, supra.¹²

Whelan's objection is without substance that the declarations of the other confederates after the theft should not have been admitted against him or Sherman. These were admissible because the jury might conclude that the theft included a successful disposal of the bales, and did not end with the deposit of the bales at "Paul's" on the fifth. For instance, when Westo told Oliva that Sherman...