United States v. Spatuzza

• Decision Date: 21 May 1964
• Docket Number: No. 14291.,14291.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph SPATUZZA and James Cozzo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

331 F.2d 214 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph SPATUZZA and James Cozzo, Defendants-Appellants.

No. 14291.

United States Court of Appeals Seventh Circuit.

April 24, 1964.

Rehearing Denied May 21, 1964.

Maurice J. Walsh, George F. Callaghan, Chicago, Ill., for appellants.

John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., Frank E. McDonald, U. S. Atty., John Peter Lulinski, Richard T. Sikes, Asst. U. S. Attys., of counsel, for appellee.

Before HASTINGS, Chief Judge, and KNOCH and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Defendants, Joseph Spatuzza and James Cozzo, were indicted with Richard Bravieri and Anthony La Pore for possession of stolen goods in violation of section 659 of the Criminal Code, 18 U.S.C. § 659. Bravieri pleaded guilty; the other three defendants were tried by a jury and found guilty. Spatuzza and Cozzo appeal from the judgments sentencing them to terms of imprisonment. La Pore did not appeal.

In December, 1962, a van loaded with cosmetics was transported piggy-back by the New York Central Railroad from New Jersey to Chicago. Following arrival in the New York Central Transport Company's yard in Chicago, an attempt was made to deliver the goods to Cosmetics Distributing Company, the consignee, but the goods were refused. The van containing the goods was returned to the yard. The next day the van was missing.

On January 14, 1963, Federal Bureau of Investigation agents saw three men in a Ford automobile drive up to and enter a garage at 1302 West Erie Street, Chicago. Twenty minutes later a fourth man arrived, driving a tractor. He backed the tractor partially into the garage. The three men, identified by the agents as Cozzo, Spatuzza, and La Pore emerged from the garage to assist the driver. Spatuzza and La Pore removed boards from the garage door blocking the exit of the tractor and the stolen van. Cozzo stood by the side of the unit. He and La Pore then directed it out of the garage. These activities were observed by two agents from a vantage point 150 to 180 feet away and by other agents a block away.

The driver of the unit, Bravieri, was arrested as he drove east on Erie Street. Spatuzza was arrested as he followed the tractor and van in the Ford. The van contained a part of the stolen cosmetics which were valued at $37,000. As La Pore and Cozzo walked away from the garage, La Pore was arrested, but Cozzo escaped capture. He was apprehended three days later.

I.

Defendants contend that there was a fatal variance between the allegations of the indictment and the proof; that the indictment alleges that the goods were stolen from a depot of the New York Central System in Chicago, whereas it was proved that the van containing the cosmetics was stolen from the yard of the New York Central Transport Company. The difference between the words "depot" and "yard" is a matter of semantics. The words can be used interchangeably to describe the place where a railroad has its loading facilities.

Defendants also contend that the proof and indictment are at a variance because the indictment alleges that the goods were stolen from the New York Central System while the proof shows the goods were taken from the New York Central Transport Company. The word "system" is simply descriptive of the yard facilities used by the New York Central Railroad and its wholly owned subsidiary, the New York Central Transport Company. The variance was insignificant.

Defendant Cozzo maintains that he was not sufficiently identified and that there was no proof of his possession of the goods or knowledge of their stolen character. However, the evidence shows that three government agents saw Cozzo at the garage. Although they were unable to identify him by name, with the aid of a photograph they later recognized him as being one of the men at the garage. The defendants, including Cozzo, had been in the garage where boxes were found containing goods that were part of the shipment in question. They participated in moving the van containing the other part of the stolen merchandise out of the garage. Knowledge of the stolen character of goods may be established by circumstantial evidence. United States v. Allegrucci, 258 F.2d 70 (3d Cir. 1958). We hold there was sufficient evidence from which the jury could reasonably conclude that Cozzo participated in the possession of the merchandise knowing it had been stolen.

II.

FBI agent Grundler testified that he did not recognize Cozzo at the time he saw him at the garage but was able to identify him by name when he saw a photograph in the FBI office. At this point, Cozzo's attorney on cross-examination asked the witness, "And who gave you the photograph, if anyone?" Grundler answered, "That photograph is available along with many other photographs of known cartage thieves that we keep and —." Defendants contend this was a voluntary, unresponsive answer to the question, calculated to prejudice them. The court ruled the answer irrelevant, struck it from the record, and instructed the jury to disregard it. Defendants moved for a mistrial.

We hold that the district judge correctly denied the motion. The statement was elicited by Cozzo's counsel; it was responsive to the question. Although the answer was arguably prejudicial, the judge's admonition to the jury to disregard it was sufficient to prevent whatever harm could have resulted. Carter v. United States, 231 F.2d 232 (5th Cir. 1956).

Defendants argue that the judge erred in cutting off cross-examination of agent Grundler; that he should have allowed counsel to diminish the prejudice of the agent's "voluntary" statement and to place the witness in "a proper setting with regard to his training and relationship with the Government." Cross-examination is ordinarily limited to matters within the scope of the direct examination although it is within the discretion of the trial judge to permit cross-examination on collateral matters. United States v. Lawinski, 195 F.2d 1 (7th Cir. 1952). No error was committed by the district judge in limiting the cross-examination of the agent nor in denying the severance motion made by Spatuzza relating to the agent's statement.

III.

We find no merit in defendants' assertion that the district judge erred in denying the motion for a mistrial because of the Government's attempted proof of another offense. The evidence showed that the tractor was stolen shortly before it was driven to the garage. Although it is the general rule that proof of another...