United States v. De Vivo, 394

• Decision Date: 09 July 1957
• Docket Number: Docket 24638.,No. 394,394
• Citation: 246 F.2d 773
• Parties: UNITED STATES of America, Appellee, v. Joseph S. DE VIVO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

246 F.2d 773 (1957)

UNITED STATES of America, Appellee, v. Joseph S. DE VIVO, Appellant.

No. 394, Docket 24638.

United States Court of Appeals Second Circuit.

Argued June 4, 1957.

Decided July 9, 1957.

Douglas P. Null, New York City, for appellant.

Paul W. Williams, U. S. Atty., for the Southern Dist. of New York, New York City (Robert W. Bjork and Robert Kirtland, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

Joseph S. DeVivo was found guilty by a jury on two counts of an indictment charging him with the substantive offense of possession of stolen merchandise with knowledge of the fact that it was stolen (Count 2) and with conspiracy to steal goods from a truck moving in interstate commerce (Count 3), in violation of 18 U.S.C. §§ 371 and 659; and he appeals from the judgment of conviction entered upon the verdict and from the two four-year concurrent sentences imposed upon him by Judge Weinfeld.

There is direct and uncontroverted evidence that on October 17, 1956, a large aluminum trailer truck containing 1787 cases of Vitalis Hair Tonic left the Bristol Laboratories, Inc. in Syracuse, New York, on its way in interstate commerce to the Bristol-Myers Company plant at Hillside, New Jersey. This trailer truck was, during the morning of October 18, 1956, parked at Pier 26, North River, New York City, stolen and driven away that same morning and later found abandoned in the Bronx. When the FBI closed in and made arrests on November 6, 1956 the stolen merchandise was found stored in the basement of premises owned by Mrs. Marguerite Schaefer at 3872 Boston Road, Bronx County, New York, not far from the place where the trailer truck was recovered.

A reversal of the judgment is sought because of the alleged insufficiency of the evidence to warrant the submission of the case against appellant on either the conspiracy count or on the one charging the substantive offense. It is also claimed that it was substantial and prejudicial error to receive the testimony of one Mucchiello over the objection of defense counsel. We find no merit in either of these contentions.

A recital of the sequence of events in chronological order will, we think, serve to clarify the simple issues involved and demonstrate the sufficiency of the evidence to sustain the conviction of appellant on both counts.

The Onondaga Freight Corporation was the carrier, and it had a small office at 79 Laight Street, New York City, three blocks from Pier 26, North River. At this office information was received of the forthcoming arrival of trucks from Syracuse and elsewhere and the necessary instructions for parking, routing and changing drivers were issued from this office. Sometimes the waybills were pushed under the door of this office and data concerning truck arrivals and other particulars were regularly received at this office over a teletype machine and these messages were hung on the wall of the office. A message concerning the arrival of the interstate shipment of Vitalis from Syracuse, showing the number of the trailer (234), its origin and destination, was received and posted in this manner at the Onondaga office and hangers-on or those seeking such information for illicit purposes had access to this message.

Truck drivers congregated in the vicinity and two in particular, Sam Perrone and Anthony J. Potenza were seen on numerous occasions in and about the premises prior to October 18, 1956 by the terminal manager of Onondaga, who testified at the trial. Another Onondaga employee testified that he saw Perrone looking at the teletype on a prior occasion and told him to stop. After the theft, and in the afternoon of October 18, 1956, Perrone and Potenza were observed unloading the stolen cases of Vitalis from the truck at Mrs. Schaefer's premises.

There is, of course, no direct proof that those charged in the indictment (DeVivo, Pagano, Perrone and Potenza) observed the Onondaga operations and conspired to steal one of the trucks. But the essential data for such an undertaking were available to Perrone and Potenza, who became so obviously involved, by fingerprints and otherwise, that they and Pagano pleaded guilty to the second count of the indictment before the trial was over. The first count, charging the theft, was dismissed against all but Pagano.

On October 15, 1956, two days before the theft of the truck and its contents, John A. Pagano, using the assumed name "John Browitz," appeared at Mrs. Schaefer's premises and after some discussion rented the store in the basement, which...