United States v. Strauss, No. 71-1036 to 71-1039.

• Decision Date: 22 June 1971
• Docket Number: No. 71-1036 to 71-1039.
• Citation: 443 F.2d 986
• Parties: UNITED STATES of America, Appellee, v. Lewis M. STRAUSS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ilario ZANNINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph P. BALLIRO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Peter LIMONE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

443 F.2d 986 (1971)

UNITED STATES of America, Appellee, v. Lewis M. STRAUSS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ilario ZANNINO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Joseph P. BALLIRO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Peter LIMONE, Defendant, Appellant.

Nos. 71-1036 to 71-1039.

United States Court of Appeals, First Circuit.

June 7, 1971.

As Amended June 22, 1971.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., Robert V. Mulkern, and Fusaro & Fusaro, Worcester, Mass., were on brief, for appellants, Ilario Zannino and Peter Limone.

David Berman, Medford, Mass., with whom Zamparelli & White, Medford, Mass., was on brief, for appellant, Lewis M. Strauss.

Joseph J. Balliro, Boston, Mass., with whom Jay Merrill Forgotson, Boston, Mass., was on brief, for appellant, Joseph P. Balliro.

Edward F. Harrington, Special Atty., Dept. of Justice, with whom Herbert F. Travers, Jr., U. S. Atty., and Sidney M. Glazer, Atty., Dept., of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

The four defendants in these cases were convicted by a jury of transporting goods in interstate commerce knowing the same to have been stolen, in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2.¹ The evidence adduced at trial indicated that defendants Balliro and Strauss actually transported the goods in question and that defendants Zannino and Limone aided and abetted the commission of the offense.

The relevant facts date back to the robbery of Cortell's jewelry store in Boston, Massachusetts, on March 24, 1966, by Erwin Soroko and Charles Lombardi. After the robbery, Soroko and Lombardi met Soroko's girl friend (now his wife) Joanne at a suburban shopping center. The three drove to Joanne's parents' summer cottage in Northwood, New Hampshire, where they hid the stolen jewelry. The next day Soroko went to see defendant Balliro, his "contact man," and asked him to arrange to sell the merchandise. Balliro procured one offer, which Soroko rejected as too low.

The two met again "around 1 o'clock" on the afternoon of April 7 at the Intermission Lounge, a Boston bar owned by Balliro. Soroko indicated that he was anxious to sell the jewelry, and offered Balliro "a piece" of the proceeds. Balliro then left and returned "around half an hour to an hour later" to report that "Larry" (defendant Zannino) was "interested in the merchandise." At Soroko's request, Balliro arranged a meeting with defendants Zannino and Limone at the Intermission Lounge about 3:00 or 4:00 that same afternoon. At this meeting it was agreed that Zannino's appraiser (defendant Strauss) would look over the merchandise. The next day Soroko, Balliro, and Strauss drove to the New Hampshire cottage. After some dickering, Strauss made an offer of $60,000, which was accepted, and the three men brought the jewelry back to Boston. Soroko received payments personally from Zannino and Limone on two subsequent occasions.

In late 1966 Soroko was convicted in state court and sentenced to ten to twenty years for his part in this robbery. In 1970 he pleaded guilty in federal court to interstate transportation of the jewelry and received a six-month sentence, to run concurrently with his state sentence. Soroko and his wife Joanne were the chief prosecution witnesses at the trial of the instant cases.

Defendants Zannino and Limone contend that they cannot be convicted under 18 U.S.C. §§ 2314 and 2 since there was no evidence that they knew the jewelry was hidden outside Massachusetts.² But by its terms — interstate transportation of goods "knowing the same to have been stolen" (emphasis ours) — the statute makes clear that the only knowledge required is that stolen goods are being transported. United States v. Kierschke, 315 F.2d 315 (6th Cir. 1953); United States v. Tannuzzo, 174 F.2d 177, 180 (2d Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 38, 94 L. Ed. 493 (1949); cf. Pugliano v. United States, 348 F.2d 902 (1st Cir.), cert. denied, 382 U.S. 939, 86 S.Ct. 390, 15 L. Ed.2d 349 (1965). Defendants cite Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358, 98 L.Ed. 435 (1954), United States v. Sheridan, 329 U.S. 379, 67 S. Ct. 332, 91 L.Ed. 359 (1946), and Nicolopoulos v. United States, 332 F.2d 247 (1st Cir. 1964), where crimes of "causing" the interstate transportation of stolen checks and firearms have been held to require "knowledge on the part of the defendant, or, at least, reasonable grounds to know, that his conduct involves, or will result in, interstate commerce." Nicolopoulos, supra, 332 F. 2d at 248. The fact that courts faced with a provision of the statute involving the word "cause" may be said to have broadened the requirements of knowledge has no present relevance.

Zannino and Limone also suggest that Pereira and Nicolopoulos apply to them because, as aiders and abettors, they have been convicted of merely "causing" Strauss to transport the goods. This argument might have some merit had they been convicted under 18 U.S.C. § 2(b). See note 1 supra; United States v. Scandifia, 390 F.2d 244, 248-250 (2d Cir. 1968), vacated on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). However, the trial court instructed the jury under § 2(a), which, for purposes of culpability, places the aider and abettor in the shoes of the principal. As Judge Learned Hand explained in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938), the traditional definition of aiding and abetting now incorporated in § 2(a) has

"nothing whatever to do with the probability that the forbidden result will follow upon the accessory\'s conduct; * * * all that is required is that he in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, that he seek by his action to make it succeed." Id. at 402.

Several days after the jury reached its verdict defendants moved for a new trial on the basis of newly discovered evidence. After a hearing, the trial court denied the motion. The newly discovered evidence consisted of an entry in a notebook kept by George Timmons, a Boston police officer, indicating that he had seen Soroko "about 3:30 p. m," on the afternoon of April 7, 1966, at a meat market located on Blackstone Street, Boston, owned by one Murray Alpert. This evidence directly contradicted Soroko's testimony at trial that at 3:30 p. m. on April 7 he was in the process of negotiating with Zannino and Limone at the Intermission Lounge, one mile away from Blackstone Street. Had this evidence been introduced at trial, it might have cast some doubt on the credibility of Soroko's testimony.

At the hearing, Officer Timmons testified that he went to Blackstone Street with Officer Brooks of the Boston Police Department and Lieutenant De Furia of the Massachusetts State Police sometime after attending a probable cause hearing involving Charles Lombardi, who had recently been apprehended for his part in the Cortell robbery. That hearing took place on the morning of April 7. At the meat market, the officers asked for Soroko, learned that Alpert was expecting him, and returned to their car to wait for him. Officer Timmons testified that he had no independent recollection of what time Soroko arrived and that he did not know whether he had made the notation in his notebook that afternoon or on the following morning. The only independent recollection of the incident came from Lieutenant De Furia, who testified that it occurred "anytime after 12 o'clock to 1:00, 1:30 at the latest." At the hearing both Soroko and his wife Joanne, who had accompanied him to the market, testified that they had arrived there sometime between 11:00 a. m. and noon. They stated that, after going to the market, they returned to Winthrop to feed Joanne's children during their noon lunch break from school.

The trial judge ruled that defense counsel's failure to offer this evidence at trial was not due to any serious lack of diligence on their part. As the Supreme Court has noted, courts have traditionally applied two somewhat different tests for determining whether newly discovered evidence warrants a new trial. See United States v. Johnson, 327 U.S. 106, 111 n.5, 66 S.Ct. 464, 90 L.Ed. 562 (1946). The majority rule, derived from the case of Berry v. Georgia, 10 Ga. 511 (1851), requires that the evidence "must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929); accord, United States v. Craft, 421 F.2d 693 (9th Cir. 1970); Hudson v. United States, 387 F.2d 331 (5th Cir. 1967), cert. denied, 393 U.S. 876, 89 S.Ct. 172, 21 L.Ed.2d 147 (1968); Anderson v. United States, 369 F.2d 11 (8th Cir. 1966), cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L.Ed.2d 136 (1967).³ The Seventh Circuit rule, first announced in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), is somewhat less stringent. Under the Larrison rule a new trial must be granted if, on the basis of the newly discovered evidence, "(a) The court is reasonably well satisfied that the testimony given by a material witness is false and (b) That without it the jury might have reached a different conclusion." Id. at 87; accord, Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949). By "false" is meant deliberately false or "false swearing." See United States v. Johnson, 142 F.2d 588, 592 (7th Cir. 1944). The Second Circuit appears to have adopted the practice of testing the evidence against both standards, see United States v. Miller, 411 F.2d 825, 830 (2d Cir. 1969); United States v. Lombardozzi, 343 F.2d 127 (2d Cir.), cert. denied, 381 U.S. 938, 85 S.Ct. 1771, 14 L.Ed.2d 702 (1965), before refusing to grant a new trial.

At the conclusion of the hearing the trial judge...