United States v. Stephens
| Decision Date | 28 February 1974 |
| Docket Number | No. 73-1334-73-1337.,73-1334-73-1337. |
| Citation | 492 F.2d 1367 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lee STEPHENS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfonse BARTKUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Milton SILVERMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sam NORBER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
Joseph P. Zanglin (Court Appointed), Detroit Mich., on brief for Lee Stevens.
W. Robert Chandler (Court Appointed), Detroit, Mich., on brief for Bartkus.
Noel L. Lippman, Warren, Mich., on brief for Silverman.
Sanford Rosenthal, Southfield, Mich., on brief for Norber.
Kirby Patterson, U. S. Dept. of Justice, for appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Robert L. Keuch, Atty., Dept. of Justice, Washington, D. C., on brief.
Before PHILLIPS, Chief Judge, CELEBREZZE and LIVELY, Circuit Judges.
The four appellants and two others were jointly indicted for conspiracy to violate Title 18 U.S.C. §§ 2314, 2315 and 2 "by fraudulently and unlawfully transporting and causing to be transported in interstate commerce, goods and merchandise of a value exceeding $5,000 knowing the same to have been stolen, and receiving, storing, bartering, selling and disposing of goods and merchandise of a value exceeding $5,000 moving in interstate commerce, knowing the same to have been stolen." The indictment then described the part which each of the defendants allegedly played in the conspiracy and set forth a number of overt acts and the dates on which these acts were performed by various defendants. The indictment contained five counts relating to the alleged conspiracy, the various overt acts and charges of aiding and abetting. One defendant, Wayne Wakeford, was dismissed and a jury trial began on January 4, 1972 with the four appellants and one Robert "Bobby" Kahn as joint defendants. On February 9, 1972 this jury reported that it was unable to reach a verdict and was discharged. Prior to the commencement of the second trial the defendant Kahn pled guilty. On August 1, 1972 the jury returned a verdict finding the defendants Norber, Bartkus, Stephens and Silverman guilty as charged in count I of the indictment, Norber and Bartkus guilty under counts II and III and Silverman guilty under counts IV and V. The four appeals were consolidated and heard together in this court.
The goods which were stolen consisted of a truck-type trailer loaded with Bayer aspirin and other non-prescription drug products which was shipped from the Glenbrook Laboratories of Sterling Drug Company in Trenton, New Jersey to a distribution point at Chicago, Illinois on January 12, 1970. The shipment was by rail and it was proven that the trailer arrived at the Penn Central yard in Chicago. The loaded trailer disappeared from the Penn Central yard in Chicago before it could be delivered to the consignee and the empty trailer was found on a street in Chicago on January 19, 1970. All of the aspirin was not recovered but cases of aspirin identified as being parts of the shipment were recovered from a truck driven by the defendant Silverman in Detroit, from a building identified as the Castle City Furniture Company in Detroit and from a discount store in Cincinnati whose manager testified that it had been purchased from the defendant Silverman. The testimony of Sal Caracappa, an independent trucker, provided important links in the chain of conspiracy.
Caracappa testified that he was contacted on January 20, 1970 by Bobby Kahn whom he had known for about 15 years and hired to run a load of stolen aspirin from Chicago to Detroit. He was told by Kahn that the stolen cargo would be in a legitimate trailer to be picked up at Middle West Freight Lines in Chicago on the morning of January 21. When Caracappa arrived at the appointed place and met with Kahn he checked the loaded trailer and found that it did contain Bayer aspirin. Kahn rode part of the way to Detroit with Caracappa, but left the truck before it arrived at its destination. Caracappa then drove on to Detroit and pulled into a truck stop which had been designated by Kahn and waited in a conspicuous place. After a while a man identified by Caracappa as the defendant Stephens came to his truck and said, "I'm your man here in Detroit." Later in the evening of January 21 Caracappa was at the home of the defendant Stephens when four people arrived. These were identified as Bobby Kahn, a young woman named Marianna Soots, the defendant Norber and the defendant Bartkus. About 10:00 o'clock that night Caracappa overheard a conversation among the other men at Stephens' house concerning the ownership of the cargo. He went back to his truck and spent the night in the cab.
Caracappa then testified as to events which occurred on January 22 involving Norber, Kahn, Stephens and Bartkus. Before the day was over the trailer which Caracappa had brought from Chicago was unloaded at a warehouse near Fourth and Grand River in Detroit. The crew which unloaded the trailer was in the charge of Lee Stephens, and Kahn and Bartkus directed where the cartons which were taken from the trailer were to be placed on the second floor of the building. The witness testified that all four of the other men were involved in discussions concerning the unloading and placement of the cargo and that he saw Norber give an envelope containing money to Kahn. Thereafter Kahn paid Caracappa for hauling the goods. He also testified that he saw yellow slips of paper containing an inventory of the load while at Stephens' house and he positively identified the contents of the trailer as Bayer aspirin, Midol and related products.
The witness Wayne Wakeford was originally indicted with the appellants, but the charges against him were dismissed prior to the first trial. He was an employee of the defendant Silverman, who also did business as Scot Beauty Supply, and he testified to activities in which he, Silverman, Norber and Stephens were involved in moving smaller loads of Bayer aspirin in Detroit and from Detroit to Cincinnati, Ohio. The testimony of Wakeford related the movement of cases of aspirin to the Castle City Furniture storeroom and he also testified to a visit to the warehouse at Fourth and Grand River with Silverman at which time he saw 800 to 1,000 cartons of Bayer aspirin on the second floor. His testimony concerning the storage of Bayer aspirin at Castle City Furniture, meetings at Greenfield's Restaurant, the visit to the warehouse at Fourth and Grand River and the delivery by Silverman of aspirin to a discount store in Cincinnati all verified previous testimony given by Detective Sergeant Hagstrom of the Michigan State Police who had conducted a surveillance of Silverman in January and February of 1970. On February 18, 1970 Silverman and Wakeford were arrested by Michigan authorities. Cases of Bayer aspirin were seized from a U-Haul truck that they were driving at the time of their arrest and from the Castle City Furniture building all pursuant to a search warrant issued after their arrest. These were later identified as being included in a group of cartons introduced in evidence.
The general manager of the discount store in Cincinnati who had purchased two loads of aspirin from Silverman testified that they were offered to him at 18 to 20 per cent below cost. Some of the aspirin were sold immediately to a business known as Goldsmith operated in the same building with the discount store, and in turn portions of this purchase by Goldsmith were traced to two other wholesale druggists in the Cincinnati area. Some of the cartons of aspirin received by each of these four Cincinnati businesses were recovered by the FBI and introduced into evidence along with those taken from the U-Haul truck and the Castle City Furniture storeroom. The labels had been cut from the boxes recovered in Cincinnati, which corroborated the testimony of Wakeford that the cases of aspirin which he hauled to the Castle City Furniture storehouse had had the labels cut.
Two employees of Glenbrook Laboratories testified. The witness Bannister was the shipping foreman at Trenton, New Jersey on the date the merchandise which eventually disappeared was loaded and dispatched. He described the use of control numbers by the manufacturer that served to identify the particular batch from which each container of aspirin was manufactured. He stated that this control number appeared at two places on each carton of aspirin and that the cartons also contained consecutive numbers and that this information was noted on a withdrawal sheet as the cases of aspirin were loaded on the trailer. He introduced the withdrawal sheet, the bill of lading for the particular shipment which was later stolen and the control sheets which gave further information about each control item. He described in great detail the contents of the trailer, identifying the number of cases of aspirin and other products, broken down as to the size containers in each case. He further stated that the control number appears on each bottle and tin of Bayer aspirin in addition to appearing on the shelf carton in which they are enclosed and on the shipping case. The witness pointed out that some of the cartons were mixed cases. These were cartons which contained aspirin made from the last portion of one batch of ingredients and the first part of the next succeeding batch. These cases contained two sets of control numbers and were specially designated with a white sticker. The witness testified that it would be impossible for a box containing the numbers shown on the various shipping documents which were filed as exhibits to have gone to any destination except Chicago. He also stated that an empty shipping case later recovered could be identified as part of a particular...
To continue reading
Request your trial
-
United States v. Narciso
...but it is clear that the inquiry depends on "the good sense and experience of trial judges" subject to appellate review. U. S. v. Stephens, 492 F.2d 1367 (6th Cir. 1974). Generally, the Court must determine if the contents of the 302 were read to and approved by the potential witness, were ......
-
U.S. v. Gibbs
...particular questions.' " United States v. Mahar, 801 F.2d 1477, 1495 (6th Cir.1986) (brackets in original) (quoting United States v. Stephens, 492 F.2d 1367, 1374 (6th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 93, 42 L.Ed.2d 83 (1974)). A witness cannot meet the reasonable-fear-of-prosecu......
-
State v. Maluia
...which had been compiled from the handwritten notes were made available to appellant's counsel.' Finally in United States v. Stephens, 492 F.2d 1367, 1377 (6th Cir. 1974), the court stated the rule in the sixth circuit as 'This court has held that when an agent destroys his rough notes of an......
-
Tyler v. State
...381 U.S. 913, 85 S.Ct. 1535, 14 L.Ed.2d 434 (1965); Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967); United States v. Stephens, 492 F.2d 1367, 1374-75 (6th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 93, 42 L.Ed.2d 83 (1974); United States v. Zapata, 871 F.2d 616, 624 (7th Cir.1......
-
Table of Cases
...721 F.3d 380 (6th Cir. 2013), 210 United States v. Stauffer Chem. Co., 464 U.S. 165 (1984), 249, 250 United States v. Stephens, , 492 F.2d 1367 (6th Cir. 1974), 150 United States v. Sterlin, Nos. 10-13418, 10-13676, 10-13678, 2012 WL 1001969 (11th Cir. Mar. 26, 2012), 280, 281 United States......
-
The Privilege Against Self-Incrimination
...privilege in a separate proceeding); In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir. 1979); United States v. Stephens, 492 F.2d 1367, 1374 (6th Cir. 1974). f. Successive Prosecutions in Multiple Jurisdictions. Double jeopardy principles do not bar one jurisdiction from pr......
-
Table of Authorities
...Co. , 464 U.S. 165 (1984) ........................................................................... 204 United States v. Stephens , 492 F.2d 1367 (6th Cir.), cert. denied , 419 U.S. 852 (1974).............. 142 United States v. Stephenson , 53 F.3d 836 (7th Cir. 1995) ..........................
-
The Privilege Against Self-Incrimination
...F.2d 1067, 1075 (6th Cir. 1990); In re Folding Carton Antitrust Litig. , 609 F.2d 867, 871 (7th Cir. 1979); United States v. Stephens , 492 F.2d 1367, 1374 (6th Cir. 1974); United States v. Seavers , 472 F.2d 607, 610-11(6th Cir. 1973). e. Double jeopardy principles do not bar one jurisdict......