United States v. Wainer

• Decision Date: 18 November 1948
• Docket Number: No. 9536.,9536.
• Citation: 170 F.2d 603
• Parties: UNITED STATES v. WAINER.
• Court: U.S. Court of Appeals — Seventh Circuit

170 F.2d 603 (1948)

UNITED STATES v. WAINER.

No. 9536.

United States Court of Appeals Seventh Circuit.

November 18, 1948.

Richard G. Finn, of Chicago, Ill., for appellant.

Otto Kerner, Jr., Jack Arnold Welfeld, and John J. Kelly, Jr., Asst. U. S. Attys., all of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and SPARKS and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The defendant-appellant was indicted with six other individuals and Crosstown Liquor Mart, Inc., a corporation, for a violation of 18 U.S.C. Sec. 409,¹ and for a conspiracy to violate said section. After a plea of not guilty and without withdrawing the same, all of the defendants made a motion to quash the indictment, which was overruled by the court. The appellant's motion for a separate trial was likewise overruled. In our view of the case, it will not be necessary to discuss these motions. A jury was waived and the case tried by the court. At the conclusion of the Government's case, all of the defendants on their motions for acquittal were dismissed on the conspiracy count and all except the appellant on the substantive count. At the conclusion of all the evidence, the appellant made a written motion for acquittal which was denied. He was found guilty, and from judgment pronounced on this finding, he has appealed.

The appellant's last motion presents the sole question for our consideration, namely: Was the evidence sufficient to support the conviction?

The indictment under which the appellant was convicted charged that the defendants "did unlawfully, knowingly, wilfully and feloniously receive and have in their possession certain goods and chattels, to wit, 535 cases of Schlitz beer, which said beer was a part of an interstate shipment * * * knowing the same to have been stolen."

We shall assume, without reciting all the facts, that the beer in question was stolen from an interstate shipment on or about May 10, 1946. Did the appellant receive and possess this beer knowing it had been stolen? The evidence most favorable to the Government shows that the appellant's brother was one of the owners of the defendant Crosstown Liquor Mart, Inc., hereafter referred to as Crosstown, and one Robert J. Burns, Jr., had been a bartender at Crosstown, where the defendant became acquainted with him in 1944. The appellant was a whiskey broker and went frequently to Crosstown to pick up telephone calls that had been left for him concerning business matters, and he spent considerable time loafing about the place. The appellant was not employed by Crosstown nor did he have any financial or other interest therein. In May 1946, he met Burns, Jr., in the package room at Crosstown and in the course of the conversation, Burns told him he was helping his father, who ran a tavern. The appellant asked him how the beer situation was, and Burns said his father had connections where he could obtain all the beer he wanted. The appellant told Burns that any time his father had more beer than he wanted to let the appellant know, as he knew Crosstown was interested in some beer. Later, on May 18, 1946, the appellant again saw Burns, Jr., at Crosstown. Burns asked the appellant if Crosstown still needed some beer, to which the appellant replied that it did. Burns said his father would let Crosstown have about two hundred cases, that his father had a small place and was crowded. Burns, Jr., did not know the price of the beer but returned later with his father and introduced him to the appellant. The appellant agreed to purchase from Burns, Sr., two hundred cases of beer at $4 per case, with an allowance of 75¢ per case on the returned cases. The regular price for this beer was $2.65 a case. Burns, Sr., said that he would deliver it that night about eight o'clock, as soon as he was relieved by his bartender.

When the appellant and his wife returned that evening about nine o'clock to Crosstown, the appellant saw some Schlitz beer being unloaded in the storeroom of Crosstown. A police officer named Majher was standing by at the time. The beer was being unloaded at the place usually used for loading and unloading. The appellant told Burns, Jr., who was there, that Howard Siats, another co-defendant who was acquitted and who was secretary and treasurer of Crosstown, would pay Burns for the beer. Shortly thereafter, the appellant and his wife went home. The beer was stored in the usual place in Crosstown's storeroom and remained there unconcealed until June 3, 1946.

Shortly after five o'clock on the evening of June 3, the appellant entered Crosstown. Officer Glazer of the Alcohol Tax Unit was there. Glazer saw some beer being loaded into a truck and he asked the appellant for an invoice for it. The appellant said that he did not have any invoice for the beer. There is no evidence that the appellant ever handled or issued any invoices for anything around Crosstown.

Officer Donovan of the Chicago Police and Officer Foley of the Federal Bureau of Investigation came into Crosstown about this time. Foley exhibited his credentials to the appellant and asked him who he was. The appellant replied that he was the boss.² Foley asked the appellant if he had an invoice for the beer stacked in the Crosstown storeroom. The appellant said he had no invoice. Upon being asked by Foley where he had obtained the beer, the appellant without hesitation told him he had obtained it from Burns, a tavern owner near Sixty-third and Harper, and the appellant promised to point out Burns to Foley if he came in Crosstown that evening. Foley pointed to the stack of beer in the storeroom of Crosstown and said: "Mr. Wainer, this beer has been stolen." This is the first evidence that anyone told the appellant the beer had been stolen.³ Officer Donovan corroborates Officer Foley.

There was some evidence by the...