United States v. Smolin

• Decision Date: 12 June 1950
• Docket Number: Docket 21649.,No. 216,216
• Citation: 182 F.2d 782
• Parties: UNITED STATES v. SMOLIN.
• Court: U.S. Court of Appeals — Second Circuit

182 F.2d 782 (1950)

UNITED STATES v. SMOLIN.

No. 216, Docket 21649.

United States Court of Appeals Second Circuit.

Argued May 12, 1950.

Decided June 12, 1950.

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Irving H. Saypol, United States Attorney, New York City, for appellee, Bruno Schachner, Frederick H. Block, John M. Cunneen, Assistant United States Attorneys, all of New York City, of counsel.

Herbert Zelenko, New York City, Richard C. Machinski, Brooklyn, N. Y., for appellant.

Before SWAN, AUGUSTUS N. HAND and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This appeal is from a conviction after trial by jury on an indictment in two counts filed December 22, 1948.

The first count charged the appellant and four others, Vito Hordon Cordo, Arthur Lief, Pasquale William Di Pinto, and Sam Schatz, with the substantive crime of possessing goods they knew had been stolen while a part of an interstate shipment of freight. The second count charged the same defendants and others unknown with conspiring to commit the crime alleged in the first count. Cordo, Lief and Di Pinto all pleaded guilty. Schatz and Smolin were tried together and both were convicted. Smolin was sentenced on the substantive count but sentence on the conspiracy count was suspended and he was placed on probation. He alone has appealed.

On the evidence adduced at the trial, the jury could have found as follows: On April 26, 1946 a truckload of merchandise arrived at the Whisenant Transfer Company, Inc., 417 East 37th Street, New York City from Malden, North Carolina. The shipment was then checked against the freight bills by the Whisenant Company's General Traffic Manager, Mr. Leeds. He noted that each carton or bale had on it the name and address of its consignor and the consignee. On Monday, April 29, upon arriving at the terminal, Mr. Leeds was advised that the locks on the terminal doors were broken and that the doors had been separated a bit. Upon entering the terminal, he found that some 23 cartons and bales of rayon and cotton fabrics and piece goods were missing. Lief, Cordo and Di Pinto had on Saturday, April 27 backed a truck into the terminal and loaded it with some 20 or 21 cartons and bales, according to Cordo; some 19 or 20, according to Di Pinto; and some 20 or 21, according to Lief. Di Pinto then drove the truck to a parking lot across the street from Cordo's home in Brooklyn, where it remained until Monday morning. After a telephone call by Cordo to one, Minkhoff, Di Pinto and one Varelli drove the truck on Monday morning to a garage at 17th Street and 10th Avenue, New York, where they commenced to unload with the help of two brothers named Boruck. The truck was, however, reloaded and Di Pinto, Varelli and the Boruck brothers drove the truck to Tenth Avenue, between 14th and 15th Streets, where they loaded its contents onto an empty trailer. The Borucks and Minkhoff then returned to the garage, having with them a roll of piece goods. On the following day, Cordo through one, Di Mario, met the defendant Schatz in the latter's offices at the National Flag Company on 21st Street. Cordo told Schatz that he had a load of stolen goods and asked if Schatz could get rid of it. Schatz said that he could not buy it but that he had someone who could handle it. Cordo went downstairs where he met Lief and told him that Schatz had a buyer for the merchandise. They then went upstairs where Schatz telephoned appellant Smolin and told him that he had a "good buy" on "woolens." Smolin told him to send them down and that he would take a look. Schatz said to him, "I think, Irving, if you buy this goods there will be a commission there for us." "Well," replied Smolin, "let me buy it." After the phone call Schatz told Cordo and Lief to take the merchandise to 809 Broadway, where they would see a "Mr. Daly." He was the defendant Smolin. Cordo rented a truck; Varelli and another drove it back to the trailer on Tenth Avenue and loaded it; and Cordo, Lief and Schatz went to 809 Broadway, which was a store leased by Smolin. There they met Smolin and Cordo told him "We got a load coming over here — I believe it is dress goods." Cordo said "I am kind of leery about unloading the load because it is stolen goods." Smolin told him not to worry, because there was a parade going on and the police would be busy with it. The truck arrived, and Varelli and Lief unloaded 20 or 21 cartons and bales from it. These were taken into Smolin's store and there opened. While they were being opened Cordo observed that there were names and addresses on the outside of them. Smolin said he was satisfied with the merchandise and Cordo and he agreed upon a price of $4500. Smolin asked for a receipt, but Cordo refused, saying, "I am not giving you no bill for stolen merchandise." Smolin told him not to get excited and that he would take it anyway. Smolin gave Cordo and Lief $2,000 each in cash and told Cordo to go on the following day to "Daly's," a store on 14th Street owned by Smolin, for the remainder of the purchase price. Smolin asked Cordo to remove the empty cartons and bales, but the latter refused. Smolin then asked someone from the store to take them away and burn them, and to make sure that they were burnt. At lunch that day, Schatz asked Smolin "How much commission is there going to be for us?" Smolin replied, "$500." The following day, Cordo accepted $300 from Smolin as the remainder of the purchase price.

Subsequently, Cordo, Lief and Di Pinto were apprehended, indicted and pleaded guilty as already stated. Cordo went to Schatz and asked for money, saying that his and the others' case was "up." Schatz gave him $25 and said, "Please don't implicate us in on this." Cordo then asked Schatz where he could get in touch with Smolin, and Schatz arranged an appointment for Cordo with Smolin at the latter's 14th Street store, but Smolin did not keep it. Before Cordo was to be sentenced, however, he did reach Smolin by telephone and the latter told him "You are not getting no money out of me. You can do what you please. You don't even know me." Cordo then made a statement to the F. B. I. implicating Smolin and Schatz, and the latter were arrested.

Appellant claims, first, that there was insufficient evidence to permit the jury to find that the goods that were stolen from the Whisenant Company's terminal were those that he bought. Some 23 cartons and bales were, however, missing from the terminal and the thieves, Cordo, Di Pinto and Lief, testified that they had taken some 19 to 22 cartons and bales, and that 20 or 21 were sold to appellant. Those stolen weighed, according to the Whisenant traffic manager about 300 to 400 pounds. According to Cordo, those he and the others stole weighed from 100 to 400 pounds. Appellant argues that there is no proof that other goods were not substituted for those stolen during the time that they were in the truck across the street from Cordo's home or in the trailer parked on Tenth Avenue. He, however, had the burden to show that there was a substitution. Cf. United States v. S. B. Penick & Co., 2 Cir., 136 F.2d 413; Cataneo v. United States, 4...