Petition — Kahan v. United States

Su; reme Court, U.S

FILED

Hin 34 1978

IN THE

Supreme Court of the United States

October Term, 1977

no. 99-1772

CHAIM KAHAN,

SOLOMON WERCBERGER

AND

MOR WERCBERGER.,

Petitioners

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

NATHAN LEWIN

MARTIN D. MINSKER

MILLER, CASSIDY, LARROCA & LEWIN

2555 M Street. N.W. Suite 500

Washington, D.C. 20037

(02) 294-0400

Attorneys for Petitioners

a OOO

A TT ETE SRE ES TE ST I

THE CASILLAS PRESS. INC -1717 K Street N W —Westungton. 0. C.-223-1220

(i)

INDEX

_Pages

Sie ccek due vh babsssekes de eeeebnees 1

Ee ee eee eee ee 2

ee 2

CONSTITUTIONAL PROVISION INVOLVED .............. 2

Care cbe Wu eslee bes ouhedues he eSevecuneenes 2

ey EE ong GS NANG A a cu cececcedceceraceovesan 3

ee Pe NT WUE: oc cnccccecndccgesseeneeees S

C. The Court of Appeals’ Decision... ..... 2.2... 666000 e eee 6

REASONS FOR GRANTING THE WRIT ...............2545. 7

Is 4.555 660.0400 eben ene nese ecenteeocecess 14

DER div 65 .6:605.065:0005.0:550 ne bSREReeOCRCES la-2Sa

SE Grave dohndenseessecunesetaseasacai 26a-28a

EE 6.66 6d coebRdOn REESE DEC RCEOVOORC RS CEES 29a-30a

EE ci ska sae ek 6 bud eds eK bCD ECON EN AON 3la

RE Rar a OSs on ee al a eo 32a-33a

(ii)

TABLE OF AUTHORITIES

Cases: Page

Aguilar v. Texas.

St ne gcc ceweeeenes eens daueeeereseens 11

Andresen v. Marvland.

GE GED 6 vb cece deccccecocesceseneececessess 9

Franks v. Delaware.

No. 77-5176. cert. granted.

ee ee cn ccceseseseseoenscee éeneet 8

Spinelli v. United States.

SE ED 5 9 66.0664 640008 6 oebe ee neceeenes 9.11, 13

United States v. Astroff.

556 F.2d 1369 (Sth Cir.) rehearing en

banc granted. S64 F.2d 199(1977) . 2... 7-8

United States v. Carmichael.

489 F.2d 983 (7th Cir. 1973)len banc)... 2... ee ee 7.8

United States v. Galante.

547 F.2d 733 ( 2d Cir. 1976)

ee i Ee TOs « 0 coe 6060 5esoneseeneess 13

United States v. Harwood.

I, CED ccc ccecceseesutcenseneses 7,10

United States v. Hole.

cee ceneeeé ees auhaees 8

United States v. Karathanos.

531 F.2d 26 4d Cir.)

ee ee Se, GD «ccc cc cenevceseveaneeness 13

United States v. Luna,

525 F.2d 4 (6th Cir. 1975)

cert. denied, 424 U.S. WS (1976). 2... eee 8

United States v. Marihart.

492 F.2d 897 (8th Cir.)

cont. demted 449 U.S. GET (AGT) 2. ccc ccc reece csvcccs 8

(ili)

Page

United States v. Mormis.

477 F.2d 687 (Sth Cir.)

og 10

United States v. Park.

ee 8

United States v. Pond.

$23 F.2d 210 (2nd Cir. 1975)

cert. denied. 423 U.S. 105811976)... eee S

United States v. Roth.

PoE ee a 10.11. 12

United States v. Ventreseu.

I ig gn ae Waa s WW wna eRe ou eek bb wkcmn. 12

United States v. Viggiany.

433 F.2d 716 (2d Cir. 1970)

cert. dented. 401 U.S. 938 (1971) ae sw oe ae ee ae & ob aS} ee 13-14

Vitali v. United States.

eee, 13

Whiteley v. Warden.

I a a a 10.11.13

Zurcher. Stantord Daily.

46 U.S.L.W. 4546 (May 31. 1978)

(No. “6-1484. together with "6-1000)... 0. odd... a

Statutes:

CS 8 ORNS TRE og Da Gn a rn ae 3

AE EP ae PRR ea ee 3

Re elie RY oP ct Ls SY bia! ae

IN THE

Supreme Court of the United States

October Term, 1977

No.

CHAIM KAHAN,

SOLOMON WERCBERGER

AND

MOR WERCBERGER,

Petitioners

v.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (Appendix A., pp. la

- 2Sa, infra)’ is reported at 572 F.2d 923.’ The Memoran-

dum and Decision of the District Court of July 6, 1976 (Ap-

pendix B., pp. 26a - 28a, infra), is unreported.

‘All appendices to this petition will be cited as “pp. a. infra.”

The “Appellants’ Appendix” filed in the court of appeals will be cited

as “AA...”

*The panel that originally heard this case was District Judge Dooling.

Circuit Judge Webster (8th Cir.) and Circuit Judge Van Graafeiland (2d

Cir.). Judge Webster resigned before the panel's opinion was rendered.

2

JURISDICTION

The opinion and judgment of the court of appeals were

filed on March 7, 1978. A timely petition for rehearing and

suggestion for rehearing en banc were denied on May 1S,

1978 (Appendices C and D, pp. 29a - 31a, infra). This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether an FBI Agent’s unintentional, but negligent,

false statement of a material fact in an affidavit for a search

warrant invalidates the search.

2. Whether an affidavit which states that “‘several

thousand” cartons of commonly sold Schick razors were

seen at a warehouse in New York on the day following a

hijacking of the same kind of Schick razors in New Jersey

constitutes probable cause for search of the warehouse.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against un-

reasonabie searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affir-

mation, and particularly describing the place to

be searched, and the persons or things to be

seized.

STATEMENT

The petitioners are three individuals who operated the

“CBS Warehouse” located in Brooklyn, New York. After a

jury trial in the United States District Court for the Eastern

3

District of New York, petitioners were convicted on one

count of knowingly possessing stolen goods meved in in-

terstate commerce in violation of 18 U.S.C. § 659. They

were acquitted on a count charging conspiracy to receive

those goods in violation of 18 U.S.C. § 371. None of the

petitioners had any prior criminai record, but all have been

sentenced to three years’ imprisonment.

A. The Evidence

On March 11, 1975, a tractor-trailer en route from Con-

necticut to California with 6,910 cartons of Schick razors

and other toiletries was hijacked in New Jersey. Two days

later — on March 13, 1975 — a Special Agent of the FBI

applied for a warrant to search the CBS Warehouse on the

ground stated in his affidavit (Appendix E, pp. 32a - 33a,

infra) that he had:

reason to believe that there is presently being con-

cealed in the above-described premises a quantity

of cartons bearing the name Schnick, Inc., with

the Spec. No. 02-40 on the said cartons which car-

tons have been stolen from Interstate Commerce

in violation of Title 18, United States Code, Sec-

tion 659.

The facts stated to support this conclusion were as

follows: First, it was asserted that the FBI had received a

report of the hijacking of a tractor-trailer in New Jersey and

that the person making the report “further advised taking

from the trailor [sic] 6.910 cartons of Schnick razors and

toilet products’’ which were being shipped in interstate

commerce. The affidavit went on to say in a second num-

bered paragraph, that a ‘‘reliable confidential informant”

who had previously supplied reliable information (p. 33a,

infra):

*“Schick” was misspelled “Schnick” throughout the affidavit.

4

has stated, that he was in the above-described

premises known as CBS Warehouse on March 12,

1975. While in the above-described warehouse the

reliable informant observed several thousand car-

tons of Schnick super two bonded razors bearing

the Schnick, Inc., Spec. No. 02-40 on the cartons.

The search warrant was issued on the basis of this af-

fidavit on March 13, and FBI agents seized cartons of

Schick products from the warehouse during a search made

on that day. It was discovered subsequently that the ‘Spec.

No. 02-40” was not an identifying number designating a

particular shipment but was, as the district judge found.

“the manufacturer’s code number designating the type of

goods packaged in the carton (i.e., Schick II razors and

blades).” (Appendix B, p. 26a, infra) On this basis,

petitioners moved before trial for suppression of the cartons

seized in the warehouse on the ground that the affidavit —

which was the only evidence submitted to the magistrate

who issued the warrant (AA. 125a, 149a) — was totally in-

sufficient to establish probable cause. The district judge

noted initially that there was no challenge to ‘‘the reliability

of the supplied information.” (p. 27a, infra) Even though

there was no evidence whatever in the affidavit that tied the

cartons found at the CBS Warehouse to the hijacking on

the previous day and the products described were *‘so com-

mon that they ‘could be observed in hundreds of thousands

of places throughout the United States on that same day,””’

the judge held that the presence of ‘“‘several thousand”’ car-

tons of Schick razors in a warehouse on the day following a

hijacking was “extraordinary.” (p. 27a. infra) On this ac-

count, the district judge found that there was probable

cause to believe that “the goods seen by the informant were

likely to be the goods stolen the previous day,” and he

denied the motion to suppress (pp. 27a - 28a, infra).

On the eve of trial, the prosecutor disclosed that the

“supplied information” had not been accurate and that the

S

informant had, in fact, not seen any goods in the CBS

Warehouse on March 12 because he had not been in the

warehouse on that day. The facts developed at a hearing

were as follows: On March 12, the ‘‘reliable informant,”

Paul Pollari, had called FBI Special Agent Pecoraro, to

whom he had previously supplied information, and told

Pecoraro that he had driven a rented truck filled with

Schick razor products to the S&F Warehouse, a totally dif-

ferent warehouse in Brooklyn, with which petitioners had

no relation (AA. 309a, 325Sa - 327a, 329a - 330a). Pollari had

been told by a confederate in the scheme that another

truck, loaded at the same time with Schick products, was

being delivered by someone else to the CBS Warehouse

(AA. 309a, 317a, 318a, 325a - 327a, 330a). It was on the

basis of the information in this telephone call that the ap-

plication for the warrant was made, and that it was

erroneously stated to the magistrate that the informant had

been inside the warehouse on March 12.

It developed at the hearing that as a result of the in-

formant’s oral report to Special Agent Pecoraro, the CBS

Warehouse was placed under surveillance on the morning

of March 13. The waiting agents watched as products were

being unloaded into the warehouse at about noon on that

day.* When the search warrant arrived in the afternoon,

they entered the warehouse, seized cartons of Schick

products, and also took possession of relevant documents

supplied by the petitioners (AA. 192a - 193a, 260a. 268a).

B. The District Court’s Ruling

While noting that the affidavit had been erroneous, and

that the informant had not been present at the petitioners’

“No evidence relating to the surveiliance was presented to the

magistrate in the application for a warrant. The affidavit reflected only

the information regarding the activities of March 12.

6

warehouse on March 12, the district court ruled that the

search warrant was valid because the inaccuracy had been

immaterial. The judge reasoned that the misstatement was

“unimportant” since the informant ‘knew [that] part of

[the load of cartons] was going to . . . CBS [petitioners’

warehouse], and that would be delivered the next day.”

(AA. 268a - 269a) The Court responded to assertions by

petitioners that the error had been negligent by declaring

(AA. 418a):

Under the pressure of time that Mr. Pecoraro

testified to, if we talk about the standard of

negligence that usually applies . . . the agent was

not negligent . . . . I certainly find that both agents

did act reasonably, and Agent Colgan [who

received and filed Pecoraro’s oral application]

misinterpreted the statement . . . and | would

think that that’s the way I would interpret it, and

yes, that is the information he had gotten from

Pecoraro in transmitting what Pollari had told

him.

C. The Court of Appeals’ Decision

Affirming the petitioners’ conviction, the court of appeals

held that the affidavit on its face was sufficient because,

apart from the specification number, a finding of probable

cause might have rested upon the report that petitioners’

warehouse contained “several thousand Schick cartons”

which the informant had observed on the day after the

hijacking (Appendix A, pp. 12a, infra). The court of ap-

peals also upheld the district judge’s ruling that the

misrepresentation in the affidavit did not invalidate the

search warrant. It noted without comment the trial court’s

determination that the error was reasonable and asserted

that “{t}he record requires the conclusion that the

misstatement was not intentional.” (p. 16a, infra) The

.

Court distinguished previous decisions in the same circuit

by saying that they could not (p. 17a, infra):

be read as intimating that materiality alone in a

misstatement will invalidate a warrant absent

negligence or, very likely, something going beyond

simple negligence.

The court also concluded that the mistake was immaterial

because, although the informant had not seen the cartons

in petitioners’ premises as stated, *'|t}he critical content of

the statement was that part of the March 12th delivery went

to S&F and part to CBS, and Pollari was a competent in-

formant on the program that he was helping to execute.”’

(p. 17a, infra)

REASONS FOR GRANTING THE WRIT

1. There is a conflict among circuits regarding the proper

standard.

The decision of the court of appeals conflicts with the ap-

proach taken by other circuits to the same issue of material

misstatements of fact in affidavits supporting search war-

rants. Since first permitting criminal defendants to chal-

lenge the accuracy of affidavits underlying search war-

rants,” courts of appeals have struggled to decide when a de-

monstrated misrepresentation should result in the invali-

dation of a warrant. One ongoing controversy relates to the

state of mind of the affiant who utters the misstatements.

Circuits have differed over whether it is appropriate to

overturn a warrant when material error in the support-

ing affidavit was neither intentional nor the result of

recklessness on the part of the police. Compare United

‘See. e.g.. United States v. Carmichael, 4° F.2d 983 (7th Cir. 1973)

(en banc); United States v. Harwood. 470 F.2d 322 (10th Cir. 1972).

8

States v. Astroff, 556 F.2d 1369 (Sth Cir.) rehearing en banc

granted, 564 F.2d 199 (1977) (negligent misrepresentation

invalidates warrant), and United States v. Park, 531 F.2d

754 (Sth Cir. 1976) (invalidating warrant where “honest

mistake” in affidavit), with United States v. Carmichael.

489 F.2d 983 (7th Cir. 1973) (en banc) (warrant only tainted

by reckless or intentional falsehood), and United States v.

Marihart, 492 F.2d 897 (8th Cir.), cert. denied, 419 U.S.

827 (1974). Divergent resolutions of this issue have

generated confusion and disparities from one circuit to the

next in the degree of constitutional rélief afforded for sear-

ches predicated upon falsehoods. By ruling that a search

warrant remains valid if the record shows nothing “beyond

simple negligence”’ (p. 17a, infra) in making an affidavit.

the Second Circuit has further tangled this constitutional

thicket, and rendered a decision that adds to the un-

certainty in that circuit and elsewhere. Compare, e.g..

United States v. Pond, 523 F.2d 210, 213-214 (2d Cir.

1975), cert. denied, 423 U.S. 1058 (1976).’

Whether one views the error made in this affidavit as

“simple negligence’’ or something more, it is important

that recurrence of this kind of error be prevented if the

critical constitutional safeguard of the magistrate’s judg-

ment is to retain practical value. Recent decisions of this

Court have highlighted the importance of the warrant

Accord. United States v. Luna. $28 F.2d 4 (6th Cir. 1975) cert.

denied. 424 U.S. 965 (1976): United States v. Hole. 864 F.2d 298 (9th

Cir. 1977).

The issue in Franks v. Delaware, No. 77-5176, cert. granted. 98 S.Ct.

261 (Oct. 11, 1977), is whether challenges to the accuracy of affidavits

are permitted. But the general question of relief for any demonstrated

inaccuracies is implicated in the Franks case. Indeed, the issue of what

standard of culpability should predicate invalidation of a warrant foun-

ded on a misrepresentation has been raised in Franks and extensively

briefed by the Solicitor General as amicus curiae (Brief for the United

States as Amicus Curiae, 8-9, 21-30) and has also been addressed by the

parties (Brief for Respondent. 16-17; Reply Brief for Petitioners. 4-8).

9

process and have warned that when searches implicate First

Amendment interests, Fourth Amendment safeguards

must be “properly administered"’ with “particular exac-

titude.”” See Zurcher v. Stanford Daily, No. 76-1484

(decided May 31, 1978); compare Andresen v. Maryland.

427 U.S. 463 (1976). These decisions reflect increasing

reliance upon the meaningfulness of the protection

provided for privacy and other important constitutional in-

terests by the judicial warrant. The realization of that goal

requires substantial deterrence for material misstatements

of fact whenever any culpability whatever can be proved.

Here there was negligence when the FBI Agent failed to

ask the informant, at any time during their two con-

versations (AA. 261a - 263a), to clarify the circumstances of

the latter's purported observation of the stolen goods in the

petitioners’ warehouse. Even the gentlest probing by the

ugent in his discussion with his informant would have

revealed that the informant had not actually participated in

any delivery to the petitioners warehouse. A police officer

receiving information from a tipster may not be required to

verify the informant’s account independently, but he

should at least undertake an effort to probe his source for

the basis of his account before making any categorical

representations to a magistrate. Without that effort, there

is a serious possibility that the magistrate will be misled

when he decides whether to credit an informant’s report.

See Spinelli v. United States, 393 U.S. 410, 416 (1969).

As it stands. the district court's judgment that the agent

in this case behaved reasonably will encourage other agents

7 avoid raising troublesome questions when they receive

favorable tips from informants; both informant and agent

will avoid asking each other questions which might reveal

undesirable details.

Indeed, this Court’s view of the search warrant proce-

dure would justify imposition of a rule that would inval-

idate any warrant-authorized search based upon a mis-

10

representation of fact — irrespective of culpability — so

long as the misrerresentation was material. In this way, of-

ficials seeking warrants wouid have the greatest incentive to

determine accurately the facts they are representing to the

judicial officer.

On the question of materiaiity of the misstatement, the

courts below were plainly in error. The on/y basis for

crediting the information transmitted to the FBI Agent who

was the affiant was the statement in his affidavit that the

informant ‘‘was in the above-described premises known as

CBS Warehouse on March 12, 1975,”’ and that he there saw

cartons similar to those which had been hijacked. Indeed,

the court of appeals found that the affidavit was sufficient

because (p. 12a, infra):

the affiant recited as the basis of the informer’s

statement the informer’s presence in_ the

warehouse and his observation of the Schick

products; these factors made the informer a com-

petent witness of the facts he reported.

Under these circumstances, it was surely inconsistent for

the court of appeals thereafter to conclude that it was im-

material whether or not the statement regarding “‘the in-

former’s presence in the warehouse and his observation of

the Schick products” was truthful. The proper test for

materiality is to purge the affidavit altogether of the false

statement and then to determine its sufficiency to show

probable cause. United States v. Morris, 477 F.2d 657, 662

(Sth Cir.), cert. denied. 414 U.S. 852 (1973); United States

v. Harwood, 470 F.2d 322, 32S (10th Cir. 1972). Under that

standard it seems entirely clear that it the affidavit had not

included any reference to whére the informer had pur-

portedly been and what he had supposedly seen, there

would have been nothing to connect the premises to be

searched with the offense or the merchandise thought to be

stolen. See Whiteley v. Warden, 401 U.S. 560, 567 (1971);

United States v. Roth, 391 F.2d SO7, 511 (7th Cir. 1967).

11

2. The decision of the court of appeals sustaining the suf-

ficiency of the affidavit on its face conflicts with decisions of

this Court.

The court of appeals’ ruling sustaining the affidavit on its

face conflicts with two well-established principles of this

Court's Fourth Amendment jurisprudence, even apart from

the misstatement of facts.

First, in testing the sufficiency of an affidavit to support

a magistrate’s probable cause determination under the

Fourth Amendment, this Court has ruled that ‘‘an other-

wise insufficient affidavit cannot be rehabilitated by

testimony concerning information possessed by the affiant

when he sought the warrant but not disclosed to the issuing

magistrate."’ Whiteley v. Warden, 401 U.S. 560, 565 n.8

(1971). See Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964).

Thus, ‘‘i]f an affidavit is the only matter presented to the

issuing magistrate, as in this case, the warrant must stand

or fall solely on the contents of the affidavit."’ United States

v. Roth, 391 F.2d 507, 509 (7th Cir. 1967).

Second, no affidavit can sustain a probable cause deter-

mination unless it sets forth information that links the

premises to be searched (or the person to be arrested) to the

particular crime thought to have been committed. See

Whiteley v. Warden, 401 U.S. 560, 567 (1971); Spinelli v.

United States, 393 U.S. 410, 418 (1969); id. at 423 (Mr.

Justice White concurring).

Absciutely nothing on the face of the affidavit in this case

linked the premises to be searched to the particular goods

beiteved to be stolen!

First, respecting the goods stolen, the face of the affidavit

says only that on March 11, 1975, 6,910 cartons of Schick

razors and toilet products which were being shipped from

Connecticut to California were hijacked.

12

Second, respecting the premises to be searched, the face

of the affidavit says onlv that the informant. “|wJhile in the

above-described warehouse [on SOth Street, Brooklyn, New

York] . . . observed several thousand cartons of Schnick

super two bonded razors bearing the Schnick, Inc., Spec.

No. 02-40 on the cartons.”

The court of appeals conceded that the specification

number was of far less value for identifying purposes than

might have first appeared (pp. Ila. 12a. ‘nfra). The court

went on, nonetheless, to hold that probable cause had been

demonstrated by the report that an informant had ‘‘seen

several thousand Schick cartons in a Bush Terminal

warehouse on the day following the highjacking of 6910

such Schick cartons.”’ (p. 12a, infra) That finding was

logically insupportable. The fact that the informant ob-

served cartons in the petitioners’ warehouse ‘on the day

following the highjacking” implied nothing about the date

on which the cartons were deposited at the warehouse. Sin-

ce the cartons may have arrived weeks before they were ob-

served by the informant, the date of his observation was

irrelevant. The inference drawn from the large number of

cartons seen in the warehouse was equally dubious. While

the presence of a substantial quantity of goods in a private

residence may be remarkable, there is nothing unusual

about a warehouse which contains a great number of boxes

and crates. Indeed, it would be surprising to find a

warehouse containing any sort of product in less than con-

siderable quantity. See United States.v. Roth, 391 F.2d 507,

511 (7th Cir. 1967). And nothing in the affidavit suggests

that the number of boxes was unusually high for a normal

warehouse.

The court of appeals’ finding of probable cause was not

the result of a ‘““commonsense”’ reading of the face of the af-

fidavit. Compare United States v. Ventresca, 380 U.S. 102.

109 (1965). In light of the informant's failure to link the

Petitioners with the actual goods that were stolen, the af-

13

fidavit could only have been read as indicating probable

cause if the court itself supplied ‘‘essential details critical”

to the determination. United States v. Karathanos, 531

F.2d 26, 31 (2d Cir.), cert. denied, 428 U.S. 910 (1976). In

this respect, the instant case parallels the situation presen-

ted to this Court in Spinelli v. United States, 393 U.S. 410.

(1969), where the Court rejected a finding of probable cause

based on facially normal activity when “nothing alleged . . .

would [have] permit[ted] the suspicions engendered by the

informant’s report to ripen into a judgment that a crime

was probably being committed.’ Jd. at 418: see United

States v. Galante, S47 F.2d 733, 736 n.1. (2d Cir. 1976) (dic-

tum), cert. denied, 431 U.S. 969 (1977). No matter how

liberally an affidavit is to be construed, it cannot form the

basis for a search warrant if it offers no information that

tends to link the subjects of a search with evidence of a

crime. See Whiteley v. Warden, 401 U.S. 560, 567 (1971).

Under the standard applied by the court of appeals, a

magistrate could permit a warrant to issue to search any

Storage area Known to contain a large, but normal, quantity

of goods of a type and brand that have recently been stolen.

That is plainly not the law. Otherwise, the FBI could have

searched all warehouses stocking Schick razors on the East

Coast on the morning of March 13, 1975.

The two cases cited by the court of appeals to support its

conclusion — Vitali v. United States, 383 F.2d 121 (1st Cir.

1967), and United States v. Viggiano, 433 F.2d 716 (2d Cir.

1970) cert. denied, 401 U.S. 938 (1971) — are inapposite. In

Vitali, the First Circuit upheld a warrant based not only

upon an allegation that a large quantity of goods had been

observed on the property to be searched, but upon the

assertion that the manufacturer of the goods only sold them

to certain customers, of which the owner of the searched

property was not one. Similarly, in Viggiano, inferences

might have been drawn from an informant’s observation

14

that a quantity of goods in a residential garage and storage

room bore labels naming out-of-state addresses. and from

the correlation between the dates of two hijackings and the

dates when the defendant claimed to the informani to have

‘‘just purchased” the goods being held in the residential

storage areas. 433 F.2d at 717. In neither case was a

warrant sustained simply because the premises to be sear-

ched contained products of the same type or brand as the

items stolen.

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

NATHAN LEWIN

MARTIN D. MINSKER

MILLER. CASSIDY. LARROCA & LEWIN

2555 M Street. N.W. Suite 500

Washington. D.C. 20037

(202) 293-6400

Counsel for Petitioners

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 1430 — September Term, 1976.

(Argued August 15,1977 Decided March 7, 1978.)

Docket No. 77-1216

United States of America.

Appellee.

—against—

Chaim Kahan, Solomon Wercberger

and Mor Wercberger,

Defendants-Appellanis.

Before:

Van Graafeiland and Webster*, Circuit Judges

and Dooling**, District Judge.

The appeal is from a judgment of the United States

District Court for the Eastern District of New York, Jacob

Mishler, Chief Judge, convicting appellants, after a jury

trial, of willfully and unlawfully receiving and having in

their possession goods stolen from an interstate <hipment of

freight knowing the goods to have been stolen.

Affirmed.

*Judge Webster (of the 8th Circuit, sitting by designation) having

resigned, this decision is rendered by Judges Van Graafeiland and

Dooling, who are in agreement, pursuant to the Rules of this Court, §

0.14(b).

**Of the Eastern District of New York, sitting by designation.

2a

Milton S. Gould (Shea Gould Climenko &

Casey), Ronald H. Allenstein and Lawrence

B. Sutter, of Counsel, for Appellants.

Paul F. Corcoran (David G. Trager, United

State Attorney and Bernard J. Fried, of

Counsel), for Appellee.

Dooling, D-/.:

At about 9:00 P.M. on March 11, 1975, a Time D.C.

tractor-trailer carrying 6,910 cartons of Schick products in-

terstate was highjacked in Parsippany, New Jersey. On

March 12th. 1784 cartons of the products were delivered to

the S & F Warehouse. and 1673 (or 1654 or 1606) cartons

were delivered to the CBS Warehouse, operated by the

three defendants. On March 13th, at least 3,032 of the

Schick products were delivered to CBS warehouse. Agents

of the Federal Bureau of Investigation watched the delivery,

and, after it was completed, seized 5,072 cartons of the

Schick products at the CBS warchouse under a search

warrant obtained while the Agents had the warehouse un-

der surveillance. The defendants have been convicted of

unlawfully receiving and possessing 5,072 cartons of Schick

products stolen from an interestate shipment knowing the

same to have been stolen. They were acquitted of a count

charging them with conspiracy to receive and have in their

possession the cartons of Schick products stolen from in-

terstate commerce.’

‘The alleged co-conspirators were defendants Manuel V. Gomez.

Stanley Diamond, Vincent Jimmy) Santa and Frank Joseph Maloney.

Stanley Diamond entered a plea of guilty to the conspiracy count. The

case against Santa and Gomez was severed and they were tried on a

superseding indictment with Joseph De Luca and James and Patrick De

Fillippo. All five were convicted of guilty possession and conspiracy.

3a

Appellants contend that certain declarations of an

alleged co-conspirator made after appellants’ arrest should

not have been received in evidence, that evidence

Suggesting that they had received stolen property under

similar circumstances five weeks earlier should not have

been received, and that the evidentiary fruits of the search

and seizure of March 13th should have been suppressed

because the affidavit on which it rested was insufficient and

rested on a material misstatement of fact.

The evidence was essentially simple. Carroll Bridgeforth,

the driver of the Time D.C. tractor-trailer combination,

testified that he and his co-driver James Lester picked up a

trailer loaded with Schick products at the New Haven, Con-

necticut, terminal between seven and seven-thirty on the

evening of March 11, 1975 to drive it to Winchester,

Virginia en route to the shipment’s ultimate destination in

California. At about 9:00 P.M., near the junction of In-

terstate Route 80 with Route 287 in New Jersey, a car forced

them off the road and three or four armed men highjacked

the truck at gunpoint. Bridgeforth, kept in the highjackers’

car until released, with Lester, in Staten Island near mid-

night, testified that he heard one highjacker say to the other

at about 11:30 P.M. that “‘the buyer was well satisfied with

the load.”

Paul Pollari testified that at about 7:00 or 7:30 o'clock in

the evening of March 11th, Jimmy De Fillippo telephoned

him to say that he had ‘“‘work”’ for Pollari in the morning.

On the next morning Jimmy De Fillippo called for Pollari

at his house at 7:00 or 7:30 o’clock. He had with him his

brother Patty De Fillippo and Manny Gomez. The four

drove together to a truck rental station in Brooklyn and

rented two straight trucks and a van. Pollari and Gomez

drove one truck, Patty De Fillippo the other truck, and Jim-

my De Fillippo the van. They drove together to a trailer

yard in Brooklyn in which there were about 30 to 40

trailers. One was a Time D.C. trailer parked midway in the

yard, and not visible from the street. When Pollari, Gomez

4a

and the De Fillippos reached the yard, Joe De Luca and

Vinnie (Jimmy) Santa were already there. The Time D.C.

trailer was opened and Pollari saw that it was packed to the

back with razor blades. One of the rented trucks was

backed up to the trailer and Santa, De Luca, the De Fillip-

pos and Pollari loaded both the rental trucks full from the

trailer. Santa sent Pollari and Gomez with their truckload

to the S & F Warehouse on Flushing Avenue near the Navy

Yard with a sketchily filled out “Shipping Order”’ copy of a

bill of lading not indicating any carrier, but reciting that

the goods had been received at Clinton, Connecticut from

Schick and were “‘Consigned to International Tradiuig

Co.,"" at the “Destination S & F Warehouse,”’ by the

‘Route Building 77,"’ and naming as the “Delivery Carrier

— Brooklyn Navy Yard.’’ The description of the article was

“Razors & Blades’’ followed by “Hold for Shipment.”

There was no shipper or carrier signature on the document.

When Santa sent Pollari and Gomez to S & F Warehouse,

he told Pollari, who had expected to go with Jimmy De

Fillippo, that De Fillippo was going to CBS with the other

rented vehicle. Gomez and Pollari drove to the S & F

Warehouse and unloaded their truck until about 5:30 in

the afternoon; they then left with about a quarter of the

load still on the truck.’ Pollari and Gomez drove back to

the lot, found Santa and De Luca there, and refilled the

rented truck they were driving from the Time D.C. truck.

The De Fillippo brothers had not yet returned. Santa in-

structed Pollari and Manny to park their loaded truck at

Gomez's house overnight and to go to CBS the following

‘The FBI recovered 1784 cartons of Schick products from S & F

warehouse on March 13. 1975, together with the shipping order copy of

the bill of lading identified by Poliari.

Sa

morning. That evening Pollari called Special Agent Pe-

coraro of the FBI and informed him of what was going on.’

The next morning Gomez and Pollari drove their loaded

truck to the CBS warehouse in Brooklyn. There the three

defendants came out, looked into the truck, supplied the

truckmen with skids, and showed them how to stack the

cartons so that they would not fall. Later the De Fillippos

arrived with Schick products and they too were unloaded

and al! the Schick cartons were taken by fork-lift truck and

elevator into the CBS warehouse. The unloading of the

truck and vans was not completed until 3:00 or 4:00 o’clock

in the afternoon. The rented vehicles were returned and

then Pollari and the De Fillippos went to the house of

“Tommy Reel’’ and there met De Luca, Santa and one

Stabino. Santa then told Pollari that “the FBI had hit the

place, CBS. ten minutes after we left,”’ but, said Santa, ‘‘we

have nothing to worry about, it’s on their end.’’ Santa then

paid $700 to Pollari and each of the De Fillippos.

The CBS warehouse had been under FBI surveillance

from about nine o'clock on the morning of March 13. The

Special Agents had learned of the Time D.C. theft by

teletype on March 12, 1975, and had specification numbers

of the products that had been on the trucks. They observed

the Schick products being unloaded from the rented trucks

and saw the defendants receiving the stolen goods; they

could see that products being unloaded were Schick

products, and Agent Pecoraro knew and recognized Pollari

and Gomez. While the Special Agents were watching the

delivery of the Schick products, a search warrant was ob-

tained and the Agents executed the warrant. 5072 cartons

of Shick products from the Time D.C. truck were located

on the premises. Defendants Kahan and Mor Wercberger

were to some extent interviewed. Defendant Kahan said

that he had documents for the 1673 cartons of Schick

*Pollari had been working with Special Agent Pecoraro as an in-

former for a “‘couple” of years.

6a

products received on March 12th and Mor Wercberger

produced a uniform straight bill of lading for 1654

packages of ‘Razors and Blades’. The bill of lading dif-

fered from the one Santa had given to Pollari to cover the S

& F delivery on the preceding day only in reading

“Destination c/o CBS Warehouse, Route Foot of SO Sr”

rather than “Destination S & F Warehouse, Route

Building 77°’, and in reciting receipt of 1654 packages.

Defendant Mor Wercberger also produced a CBS form of

bill of lading, a copy of which, he said, he had issued to the

truckman on March 12, 1975. It recited that an unnamed

carrier had received from CBS Warehouse, Inc. ‘1 load

blades’’ consigned to “INT Trucking’; it was signed by

defendant Mor Wercberger.

No carrier document purported to cover the receipt by

CBS of 3,032 cartons of Shick products on March 13th

Mor Wercberger produced the original of a straight bill of

lading on the CBS form, reciting an unnamed carrier's

receipt from CBS of ‘'3032 car.’’, described as ‘‘3 loads’”’

consigned to “Int'l Trucking”’.

Further documents related to the March 12th delivery in-

cluded an unsigned handwritten receipt on a CBS form

which recited the receipt from an unnamed person of 1606

cartons of Schick products, a signed typewritten receipt

form of CBS Warehouses, Inc., dated March 13th, for 1606

cartons of Schick products received for account of In-

ternational Trucking Co., and typewritten inventory cards

covering the 1606 cartons. However, nothing was produced

for the 3,032 cartons delivered on March 13th except the in-

complete straight bill of lading on the CBS form. Neither

defendant Kahan nor defendant Mor Wercberger could

identify International Trading Company; Mor Wercberger

said that he was not familiar with the company and had

never before done business with it. After his arrest, Mor

Wercberger produced from his wallet a statement of Tereza

Merchandising Corp. (unrelated to the present case) on the

7a

back of which there was a handwritten list of 3,290 cartons

of Schick products. Mr. Wercberger testified that he made

up the list on the loading dock at CBS on March 13th

before the drivers left, but did not put the descriptive detail

of the list on the bill of lading form because truckmen are

interested only in getting a receipt for the right number of

packages. The numbers on the list and on the bill of lading

form, however, are not in agreement.

The cartons of Schick products delivered on March 12th

and 13th to the S & F and the CBS warehouses were re-

turned to Time D.C. and by Time D.C. were returned to

Warner Lambert, the manufacturer of the Schick products.

The Warner Lambert return record accounts for 6905 of

the 6910 cartons that had been on the highjacked truck;

seven cartons were recorded as retained by the FBI. The

evidence was that the manufacturer’s cost of the product

was over $81,000 and its invoice price to the trade was over

$248,000.

Five weeks earlier the FBI had visited CBS in connection

with a report that goods allegedly stolen from Whitehall

Laboratories were in the CBS warehouse. A Special Agent

testified that on February 4, 1975, after the FBI had been

advised of the Whitehall theft, agents of the FBI went to the

CBS warehouse, advised Mor Wercberger that part of the

stolen Whitehall products were believed to be located in the

CBS warehouse, and he requested and received his per-

mission to search that warehouse for the Whitehall products,

and found a large quantity of them. Mor Wercberger

supplied to the FBI the shipping order copy of a hand-

written bill of lading; again, the instrument gave no

carrier’s name and recited that the products had been

received at an unindicated place on “2-1-1975” from

‘Whitehall Labs. Inc.”, “‘Consigned to A. Perez,

Destination San Paulo, Brazil, Route C/O C.B.S.

Warehouse Foot of 50 St. Brooklyn, N.Y.’’. “Delivering

Carrier’’ line was blank. The form was dated ‘‘2/3/7S” in

the space provided for describing the articles shipped; it

8a

listed 976 packages of Whitehall products.* The delivery

arrived at CBS on February 3, 1975, Mor Wercberger

testified, and the consignee, A. Perez, was unknown to him.

The Government showed that Whitehall Laboratories

had shipped a large quantity of Anacin, Dristan and other

products via National Farms Lines from its Hammonton,

New Jersey. plant. to its Dallas. Texas, warehouse on

January 30,1975. The shipment comprised 2,250 cases of

proprietary drugs and toilet preparations weighing 36,804

pounds. The shipment did not reach Dallas, Texas. The

Whitehall products were taken from the CBS warehouse on

February 5, 1975 under a search warrant with the consent

of defendants. All the packages seized from CBS, except

five packages retained by the FBI, were returned to

Whitehall on February 6, 1975, by the FBI through Laurel

Hill Trucking Company.

Mor Wercberger testified that the original of the

Whitehall bill of lading was never presented to CBS, and

the goods allegedly consigned to A. Perez were never

demanded from CBS by anyone — other than the FBI.

The Government produced the evidence of a handwriting

expert that the bill of lading covering the Whitehall

products allegedly consigned to A. Perez, the bill of lading

covering the 1654 packages of razors and blades consigned

to International Trading Co. c/o CBS Warehouse and the

bill of lading covering 1784 razors and blades consigned to

International Trading Co. at S & F Warehouse were all

written (or printed) by the same hand, as was an exemplar

furnished as being that of one Frank Joseph Maloney.

*The 976 cases of seven product varieties listed on the ‘A. Perez”’

shipping order corresponded to the entire number of seven of the

product items on the Whitehall transfer invoice; that is, the articles

located at CBS included all of the Anacin, Neet and “*Prep H”’ items on

the transfer invoice, and included none of the remaining eleven items.

9a

The Government showed through a witness from the car

rental company that Manny Gomez had rented an

automobile on March 10th and returned it on March 21st.

The Time D.C. driver, Bridgeforth, said that the rental car

resembled the highjackers’ car. Bridgeforth had recalled

that the car’s license plate contained the numbers 538. The

license plate of the car leased to Manny Gomez was 738

ZAO.

The defendants testified. Mor Wercberger testified that

he was treasurer of CBS, that it had been in business for

two years at the time in question, that Chaim Kahan was

president and Solomon Wercberger was secretary of CBS

and that Mor and Solomon Wercberger were brothers.

Mor Wercberger testified that CBS did receive the ship-

ments of Schick products on March 12 and 13, 1975, but

did not know that the goods were stolen. He said CBS had

been expecting from Tereza Merchandising Corp. a ship-

ment, which would include razor blades of an unknown

kind, in a quantity large enough to fit into a 20-foot con-

tainer; that when the Schick products arrived, he figured

they were from Tereza. Since the Schick products arrived as

loose cartons, not palletized as Tereza’s goods usually were,

he said that he telephoned to Tereza while the Schick

products were still being unloaded and complained about

the mixture of stock styles. Tereza told him, Mor Werc-

berger further testified, that they were not to expect Schick

products from Tereza but Wilkinson blades. Mor Werc-

berger testified that CBS did receive a Wilkinson blades

shipment later. He testified that because the shipment con-

tained only 1,606 cartons he refused to countersign the bill

of lading, which listed 1,654 cartons. Instead, he said, he

gave his own bill of lading form to the truck driver covering

‘1 load blades”’ without specification of any number of car-

tons. The inventory cards for the March 12 delivery, he

said, were prepared on the morning of March 13 before the

arrival of the FBI.

Mor Wercberger denied he or CBS purchased the Schick

10a

products received on March 12th and 13th, and denied that

he or CBS engaged in business as a dealer, wholesaler or

retailer of goods. He testified that neither the consignee

named in the instruments relating to the two deliveries of

Schick Products nor anyone else came forward to demand

the Schick products of CBS — other than the FBI.

Mor Werberger sought to explain his failure to draw any

inference from the manifold irregularities in the documen-

tation covering the Whitehall and Schick product deliveries

by producing a number of other shipping documents that

were, in one or another respect, imperfectly completed.

They certainly demonstrated that there had been other in-

stances of careless practice, but none exhibited the ex-

tremes of irregularity that characterized the deliveries of

February 3rd, March 12th and March 13th, nor the

marked differences between the number of packages

delivered and number listed in the purported documen-

tation, nor such a sequence of self-evidently suspicious

deliveries as those of March 12th and March 13th. The last

mentioned circumstance is particularly significant because

Mor Wercberger and Chaim Kahan testified that they did

not expect the March 13th delivery, even after the March

12th delivery was made.

The evidence amply supported the conviction on the sub-

stantive charge of receiving goods which have been stolen

while moving as an interstate shipment of freight, knowing

them to have been stolen. The appellants’ contention is that

the conviction is tainted by the admission of evidence that

was timely objected to and should have been excluded.

1. It is argued that the motion to suppress the evidence

seized on March 13th under the search warrant should have

been granted because the affidavit upon which the warrant

was granted was insufficient on its face and, in addition,

contained a material misstatement of fact.

Chief Judge Mishler denied appellants’ pre-trial motion

in a written opinion. The affidavit, dated March 13, 1975,

was made by Special Agent Patrick Colgan. It stated that

lla

Colgan had reason to believe that there was concealed in

the CBS warehouse a quantity of cartons bearing the name

Schick, Inc., with the Spec. No. 02-40 on the cartons which

had been stolen from interstate commerce. The sup-

porting facts Colgan recited were (1) a report from Lester, a

Time D.C. employee, that a Time D.C. trailer was high-

jacked on March 11, 1975 and 6910 cartons of Schick

razors and toilet products were taken, which cartons were

being shipped from West Haven, Connecticut to Anaheim,

California and (2) that a reliable confidential informant

(who had previously supplied information to the FBI which

led to the arrest of one individual for theft of $75,000 worth

of stolen merchandise and whose information also led to

the recovery of approximately $25,000 of highjacked

property and the arrest of two individuals in connection

with that highjacking) had stated that he was in the CBS

warehouse on March 12th and while there observed several

thousand cartons of Schick super two-bonded razors

bearing the Schick, Inc., Spec. No. 02-40 cartons.

The affidavit is sufficient if it is read as saying that the in-

formant saw in the CBS warehouse the same cartons that

the Time D.C. driver had reported as stolen from his truck

on the preceding day. The argument made is that, con-

cededly, ‘Spec. No. 02-40" does not identify particular lots

of products but only a product variety, and, hence, it could

not fairly be inferred that the cartons seen at CBS were

those stolen on the previous day. But, as the Court said in

United States v. Ventresca, 1965, 380 U.S. 102, 109. ‘‘The

affidavit in this case, if read in a common sense way rather

than technically, shows ample facts to establish probable

cause and allow the [Magistrate] to issue the search

warrant.’’ Here, the affidavit is in the strongest possible

form. It is based on the victim’s description of the goods

stolen from him and an eyewitness statement that he saw

the described goods in the place to be searched. There is no

contention that the informant, the affiant or the Magistrate

had before them anything to make them suspicious that the

12a

description lacked ultimate specificity. Cf; United States v.

Gomez Londono, 2d Cir. 1977, 553 F.2d 805, 810-811. Had

they noted the abstract possibility that the description

“super two bonded razors bearing the Schick, Inc., Spec.

No. 02-40 on the cartons” was not necessarily a precisely

specific identification, the warrant must have issued on the

probable cause implicit in a successful informant’s report

that he had seen several thousand Schick cartons in a Bush

Terminal warehouse on the day following the highjacking

of 6910 such Schick cartons. Cf. United States v. Viggiano,

2d Cir. 1970, 433 F.2d 716. Judge Aldrich pointed out, in

Vitali v. United States, 1st Cir. 1967, 383 F.2d 121, 122 that

‘‘Where goods are of a common nature and not unique

there is no obligation to show that the ones sought

(here a substantial quantity of [Speidel] watch bands)

necessarily are the ones stolen, but only to show cir-

cumstances indicating this to be likely.”

United States v. Karanthanos, 2d Cir. 1976, 531 F.2d 26,

does not point to a different conclusion. The seemingly

smail but, as the majority found, critically important defect

in the affidavit was that the informer’s statement to the af-

fiant omitted to say how the informer learned (rather than

surmised) that the aliens with whom he had been living and

working had entered the country illegally: that is, the af-

fidavit would have been sufficient if the affiant had said

that the informer said that at least eight other persons

working at the restaurant told him that they were illegal

aliens rather than saying that the informer had said that

“eight other persons known to him to be illegal aliens were

employed at’’ the restaurant (531 F.2d at 30). The dif-

ference was precisely that between empty opinion and com-

petent evidence. Cf. Spinelli v. United States, 1969, 396 U.S

410, 418, 423 (concurring opinion). Here, the affiant

recited as the basis of the informer’s statement the in-

former’s presence in the warehouse and his observation of

the Schick products; these factors made the informer a

l3a

competent witness of the facts he reported.° See Spinelli v.

United States, supra, 393 U.S. at 419.

On the eve of trial the Government learned and advised

opposing counsel and the court that the “‘informant”’ relied

on in the affidavit — Pollari — had not been in or at the

CBS warehouse on March 12th but on March 13th. Chief

Judge Mishler thereupon conducted a hearing at which he

heard the testimony of Special Agent Colgan, the affiant in

the affidavit, and Special Agent Pecoraro, the Agent to

whom Pollari reported on the evening of March 12th.

Pecoraro’s testimony at the hearing was the following:

When his informant called him at 11:00 P.M. on March

12th, Pecoraro asked him if he had any knowledge of a

tractor-trailer of Schick products that had been high-

jacked. The informant said *‘Peppi, we have the load.’’ The

agent asked, “‘Who has the load?”’ and the informant said,

‘Jimmy and Santa has it and I worked for him today

unloading it.’’ The Agent asked, ‘“‘Where is the load now?”’

The informant answered, “It’s on the location in Brooklyn.

We took two loads out today, we took one to CBS

Warehouse and took two to Brooklyn Navy Yard to S & F”’.

Asked who was working with him, the informant said Jim-

my and Patty De Fillippo and Manny Gomez, and he men-

tioned Joe De Luca, though not as one of the deliverers. The

informant said also that on the next day he was going to

take another load to CBS Warehouse. Pecoraro, with two

other agents, met the informant the next morning; the in-

formant reiterated that the Schick Products were being

‘United States v. Roth. 7th Cir. 1967, 391 F.2d S07. discussed in the

Government's Brief. page 37. footnote 29, necessarily found insufficient

an affidavit in which the affiant wholly failed to state the basis of the

“information from a confidential informant that the electric blenders

were... in the building” or the date as of which his “information”

spoke. The affidavit rested. then, on a Special Agent's statement that

he saw “a large number of boxes” bearing the brand name of the stolen

blades through a window in a food store and warehouse complex.

14a

unloaded from a Time D.C. trailer, that a portion of the

load had gone to CBS and a portion to S & F and that he

and his associates were going to deliver the remainder of

the load to CBS. The informant had also said that he had

seen the number 0240 on thousands of the Schick cartons.

Pecoraro and agent Dowd went to CBS and at about 11:45

P.M. saw Pollari and Gomez arrive in the rented truck and

unload Schick products to the CBS loading dock.

Pecoraro interpreted his informant’s words as meaning

that he had participated in the first CBS delivery on March

12th, and he discovered his error only on the Friday before

the trial started. Pecoraro called Colgan twice on the mor-

ning of March 13th after taking up the surveillance of the

CBS warehouse, first to alert him to stand by ready to apply

for a warrant and, later, after observing the arrival of the

rented truck and vans and the commencement of the

delivery to the defendants-appellants, to ask Colgan to

proceed to obtain the warrant, but he could not say that he

told Colgan what he had been oserving at the CBS

warehouse.

Special Agent Colgan’s testimony at the hearing was the

following:

Colgan was at the United States Attorney’s office in the

Eastern District at about 10:00 A.M. or 10:30 A.M. on

March 13th when he received a telephone call asking him to

stand by a telephone in connection with the continuing in-

vestigation of the Schick products highjacking a matter

with which he was already familiar. At around 11:45 to

12:30 A.M. [P.M.] Agents Pecoraro and Dowd telephoned

him. Pecoraro told Colgan that his confidential source had

‘old him the night before and that morning.

“that this confidential source had unloaded the trailer-

load of Schick Products that he knew had been stolen

in New Jersey.”’

Pecoraro informed Colgan of the matter related to the in-

1Sa

formant’s reliability. Colgan said that Pecoraro told him

that

‘*. .. the confidential source supplied him with the in-

formation that he, the source, had helped unload the

stolen Time D.C. trailer containing the Schick products

on a day also before March 13th. This informant also

advised that he helped load a number of rented

trucks with the Schick Products, and that these rental

trucks went to two separate Brooklyn warehouses.

. that one warehouse was called S & F

Warehouse and the other was CBS Warehouse, S0Oth

Street and Ist Avenue in Brooklyn. Further, the in-

formant advised that he had delivered on March 12th

a shipment that did go to the CBS Warehouse, and

also supplied one identifying number of Schick

Products as 0240 as being in the cartons, a large num-

ber of the cartons delivered to CBS.”

Agent Dowd, the case Agent, gave him background data on

the case, and advised Colgan that he did not know that the

number 0240 was particular to the stolen shipment. Coigan

checked through the FBI office in New Haven and was ad-

vised that the number was definitely part of the shipment of

Schick Products that had been highjacked in New Jersey.

On the basis of these data, Colgan signed the affidavit on

which the warrant was granted. When he had the warrant,

he went directly to CBS. a distance of three miles, arriving

there about 4:00 P.M.

Colgan was the Special Agent who had been at CBS on

February 4th in connection with the Whitehall

Laboratories seizure, and he had that limited acquaintance

with defendants Kahan and Mor Wercberger. The March

13th search at CBS under the warrant resulted in the

seizure of the 5072 cartons of Schick products as well as in

the production of the ‘“documentation’’ relating to the

deliveries of March 12th and 13th.

l6a

Colgan thought that the information in the affidavit was

given to him before and did not relate to the delivery of

March 13th, and that the informant had delivered part of

the stolen shipment to CBS on March 12th and knew that

another part of it had been delivered to S & F. Colgan did

not hear anything to the contrary until about a week or ten

days before the hearing. While he had spoken to Pecoraro

and Dowd during the same telephone call at about midday

on March 13th, he did not realize that they were on sur-

veillance at CBS, nor did he learn that the March 13th

delivery was under way and that the informant was par-

ticipating in it. The Magistrate signed the warrant at about

3:30 P.M. or 3:45 P.M.; the evidence indicates that the

March 13th delivery had been completed at that time.

Chief Judge Mishler denied the motion to suppress. He

found that the affidavit was in error because of a misin-

terpretation of the informant’s statement to Pecoraro. The

error was considered unimportant because the informant's

significant information was that he had the stolen load and

that it was going in part to S & F and in part to CBS. It was

concluded that the credibility of the informer and of the in-

formation he furnished had been shown. Defendants

argued that the fact that the Agents’ misstatement was in-

nocent would not validate the warrant because their error

was due to culpable negligence (cf. United States v. Gon-

zales, 2d Cir. 1973, 488 F.2d 833, 837-838), but the Court

found that, under the pressure of time that Pecoraro

testified to, he was not negligent but acted reasonably.

The record requires the conclusion that the misstatement

was not intentional. Plainly, a correct statement either of

Pollari’s activities and observations on March 12th, in-

cluding the arrangements for the delivery to CBS on March

13th, or of Pecoraro’s and Dowd’s observations on the 13th,

or of both could not have weakened, but would have

strengthened the affidavit; there was no occasion to mistate

or conéal. The testimony of Colgan and Pecoraro reveals

nothing that suggests any possible reason for making a

ee

17a

misstatement, and contains nothing that would support an

inference that they were not frank with the court. Rather,

the contrary is established by the manner in which they

testified to the times at which Pecoraro reported Pollari’s

statements to Colgan and at which Colgan learned that

Pecoraro and Dowd had the March 1 3th delivery under sur-

veillance from beginning to end. Neither Gonzales nor

United States v. Pond, 2d Cir. 1975, 523 F.2d 210, 213-214,

can be read as intimating that materiality alone in a

misstatement will invalidate a warrant absent negligence

or, very likely, something going beyond sim ple negligence.

See United States v. Pond, supra, 523 F.24 at 214(".. . we

agree that the most that can be said . . . is that the agent

made the statement ‘negligently.’ *’)

The materiality of the statement must be examined from

a second point of view. Ordinarily, if a material statement is

wrong, the consequence is a material misstatement. But the

disaparity between the statement made and the perfectly

true statement may be immaterial as Chief Judge Mishler

found it to be in this case. That is, the statement was not

materially wrong. The critical content of the statement was

that part of the March 12th delivery went to S & F and part

to CBS, and Pollari was a competent informant on the

program that he was helping to execute.

2. Defendants contend that the court should have ex-

cluded the evidence of the dealings with the Whitehall

goods. The argument is that it was not shown that the

Whitehall goods were stolen, and, if that was shown, there

was no evidence that defendants received the Whitehall

goods knowing them to be stolen.

The evidence was offered on the issue of defendants’

knowledge that the Schick products were stolen property.

The Government abundantly showed that the Whitehall

products were stolen. United States v. Leonard, 2d Cir.

1975, F.2d 1076, 1090-1091, has made it clear that the

‘similar act’’ relied on as evidence of intent need be proved

only by a preponderance of the evidence. The Government

18a

bore its burden of proof when it showed that the Whitehall

drugs were shipped to Whitehall’s Texas warehouse from

Connecticut and did not arrive, but were soon found in a

Brooklyn warehouse under the shipping order c»py of a bill

of lading of an unnamed carrier consigned to *‘A. Perez’’ in

Brazil, that the goods were taken by the FBI and returned

to Whitehall, and that no one thereafter appeared, with or

without the original “A. Perez” bill of lading, to demand

the goods of CBS.

The Government did not have to show that the defen-

dants knew when they received them that the Whitehall

products were stolen. That has been settled in this district,

so far as concerns a charge of receiving stolen goods

knowing them to be stolen, since United States v. Brand. 2d

Cir. 1935. 79 F.2d 605. See also United States y. Baum, 2d

Cir. 1973, 482 F.2d 1325, 1330-1331; United States vy.

Schaffer, 2d Cir. 1959, 266 F.2d 435. 442: cf. United States

v. Seeman, 2d Cir. 1949, 115 F.2d 371, 373: United States y.

Antrobus, 3d Cir. 1951. 191 F.2d 969, 971. As Leonard

pointed out, 524 F.2d at 1090-1091 (commenting on the

contention that ‘‘similar acts’’ should be admitted only if

proved by “‘plain, clear and conclusive’ evidence):

“This view appears to rest on a misconception. Similar

act evidence is admitted to show willfulness and for

other purposes, not because it may indicate the com-

mission of crime but in spite of that ... . While ‘the

Due Process Clause protects the accused against con-

viction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with

which he is charged.’ Jn re Winship. 397 U.S. 358. 364.

... the ‘fact’ here is willfulness, not each subsidiary

fact offered to establish it.”

The function of the Whitehall evidence was to persuade the

jury that, if a person has twice within a short time received

a large shipment of stolen goods under strikingly similar

circumstances (that is, similar “documentation,” receipt

within a day or two of the highjacking, absence of any later

PAT ot Bins. 2.

19a

demand for the goods by the supposed consignee, igno-

rance of the identity of the consignee) the supposition that

the warehouseman did not know the goods were stolen is

greatly weakened, and an inference of guilty knowledge is

given strong support. As Judge Learned Hand said in

Brand (79 F.2d at 606):

**

. the competence of such evidence does not

depend upon conformity with any fixed conditions,

such as upon direct proof of scienter, or the identity of

the thief in the earlier instance, or of the victim, or the

number of instances in which the accused received

stolen goods, or the similarity of the goods stolen.

These are all relevant circumstances but not neces-

sary constituents. Nor can we see any basis for

distinguishing between knowledge and intent in such

cases. The judge must decide each time whether the

other instance or instances form a basis for sound in-

ference as to the guilty knowledge oi the accused in the

transaction under inquiry; that is all that can be said

about the matter.”

There was no error in the admission of the Whitehall

evidence and the Court’s instruction on it was more

favorable to defendants than the law required it to be.

3. Appellants give great emphasis to the supposed error

in admitting the testimony of an informer, Cogar, con-

cerning declarations made by alleged co-conspirators after

the defendants were arrested. The testimony, relevant to

the conspiracy count, if admissible at all, was of the sort

Judge Friendly commented on in Leonard (524 F.2d 1084):

‘*... the prosecutor chose to imperil a good case by in-

troducing a line of evidence that added little but was

bound to be a prolific breeder of substantial claims of

error...”

That the jury found the testimony valueless may well be the

meaning of its verdict of not guilty on the conspiracy count.

Cogar, like Pollari, was an undercover informer from July

20a

1974 until May 1975, working with federal agents other

than those with whom Pollari was working. Neither Cogar

nor Pollari knew that the other was an undercover in-

former. The theory on which the evidence was admitted was

that the conspiracy embraced the receiving, possessing and

paying for the Schick products, and not confessing or in-

forming when arrested.

Cogar testifed that he knew Jimmy Santa, Stanley

Diamond and Manny Gomez and on occasion met them at

the dress shop of his father-in-law, and that on March 14,

1975, the day after defendants’ arrest, while Cogar was at

work in the shop Santa, Diamond and two others were

present; Santa was reading a newspaper and then passing

the paper to Diamond and pointing to a news item, he

asked, ‘‘What do you think of the rabbis?”’ To this, Cogar

testified, Diamond answered, “‘Don’t worry, don’t worry,

they’re stand-up people.”’ Cogar said that he later looked at

the article Santa had pointed to: its headlines related to the

Schick highjacking. Later the same day, Cogar testified, he

was at Tommy Reel’s house to play cards and Santa and

Diamond were also present. Diamond told him that the

persons earlier referred to were not rabbis but Orthodox

Jews® who wore black hats and beards; on the same oc-

casion he heard Diamond tell Santa, referring to the ‘‘rab-

bis”, ““They’re tough people, they won't get anything about

of them.” Cogar further testified that on March 19th at

Tommy Reel’s for a card game with Santa, his brother,

Manny Gomez and Diamond, he heard Diamond ask Santa

if he had got any more money and heard Santa answer that

“he was going to see them, the rabbis, on Saturday about

gettting the rest of the money.” After Santa left the room,

Cogar said that Diamond told him that not the Italians, as

people supposed, but the Jewish people have all the money,

and that the money “‘that they had received was brand new

one hundred dollar bills with the wrappers that had the

*The evidence was that defendants were Orthodox Jews of a very strict

sect.

2la

Star of David on it.’’ Cogar added that Diamond was

referring to ‘the money that they had gotten from the rab-

bis.’’ He said Diamond made other remarks, such as that

the money was “‘buried and not in banks,” that ‘the money

could never be, you know, shown.”

Cross-examination developed that in the period in

question Cogar had become an informant to avoid

prosecution for credit card fraud, was a paid informant,

“earned’’ money unloading highjacked trucks and

disposing of the goods with Santa, Diamond, and his

father-in-law, but at the same time furnished information

to the Government in all cases in which he helped with such

unloading, and gathered intelligence information for the

Government in the course of daily card games which the

Government furnished him money to attend. Cogar

testified that a few months before March 1975S he was ad-

dicted to heroin, but in March 1975 had become an oc-

casional user of heroin, having started to use methadone

“to come down.”’

Near the commencement of Cogar’s testimony, the Court

instructed the jury that it could not consider the con-

versations between Santa and Diamond made after defen-

dants’ arrest as evidence against defendants if they con-

cluded that upon arrest defendants were no longer mem-

bers of the conspiracy, and could consider the con-

versations as evidence against them only if they found that

the defendants had become members of the conspiracy,

that Diamond and Santa were members of the conspiracy

and that the conspiracy continued through the dates of the

conversations. In the final instructions to the jury the

Court, after the general charge on conspiracy, explained

the defense contention: that tne accused, if shown to have

been conspirators, were not such after their arrest; em-

phasized that Diamond's statements could be considered

only if the jury found as facts that the defendants and

Diamond were members of the conspiracy; and that the

Diamond declarations were made to advance the purposes

22a

of the conspiracy, and that the declarations were made

when the defendants were still members of the conspiracy.

The instructions continued:

“But, whether or not the defendants were members of

the conspiracy or continued to be after their arrest, are

fact questions fer the jury. You take into consideration

the purpose and object of the conspiracy, and you

determine whether this was really a sale of the goods as

the government contends and if it was the sale of the

goods, whether payment for the goods was part of the

purpose of the conspiracy, and whether they still were

part of the conspiracy for those purposes. But, again I

says, that is a fact question. If you find against the

government on the issue and in favor of the defen-

dants, that after the arrest the defendant could not

have been part of the conspiracy, then whatever

Diamond said even if he were a member of the con-

spiracy, cannot be charged against them, no longer an

act, no longer a part of it. Of course, I caution you that

you must also find from the evidence that Diamond

was a member of the conspiracy. If he was not a mem-

ber of the conspiracy then, of course, what he said can-

not in any event be charged to these defendants.”

Appellants argue first that the indictment did not charge

a conspiracy that extended to appellants buying and paying

for the Schick products and that, in the common case, a

sale of stolen goods to one who knows they are stolen is not,

without more, a conspiracy. However, an indictment need

not allege every circumstance of a conspiracy so long as it

unmistakably identifies the conspiracy charged. Wong Tui

v. United States, 1927, 273 U.S. 77, 80-81. Here, moreover,

the third overt act alleged in the indictment was the second

of the Diamond conversations, though it is dated March

14th. The indictment thus disclosed the particular cir-

cumstance, but it charged conspiracy to receive and possess

without adding conspiracy to buy. There was neither

SEM

a

23a

variance nor surprise in presenting in support of the con-

spiracy to receive and possess evidence that the conspiracy

embraced the further circumstance of payment, an obvious

and expectable element although not charged as the gist of

the conspiracy. See United States v. Fischetti, Sth Cir. 1971,

450 F.2d 34, 40; Danielson v. United States, 9h Cir. 1963,

321 F.2d 441, 443; Medrano v. United States, 9th Cir. 1961,

285 F.2d 23, 26.

The case is not one in which a simple sale of goods known

to be stolen is charged as a conspiracy between seller and

buyer, as in United States v. Zeuli, 2d Cir. 1943, 137 F.2d

845, which itself recognized that the ‘‘doctrine”’ is confined

to the instance where the indictment charges or the proof

shows no more than the sale transaction. More was charged

here, and the evidence presented to the jury was not simply

evidence of knowing receipt of stolen property. At the very

threshold of the matter the appellants concerted their ac-

tivities, innocent or guilty, in receiving and possessing the

allegedly stolen property. Beyond that there was evidence

that at least as early as 11:30 P.M. on March IIth, the

night of the highjacking, a ‘‘buyer’’ — not necessarily ap-

pellants — had expressed satisfaction with the stolen

property; appellants accepted the March 12th delivery, ac-

cepted the International Trading Company shipping order

copy of the bill of lading, set up the internal inventory

documentation, prepared in part the invoice to the ‘‘In-

ternational Trading Company’’. received the second de-

livery from the same highjacking, and put into operation,

when interrogated, the scheme of internal documentation

keyed to the shipping order furnished by Santa and, it may

be inferred, delivered by the De Fillippo brothers. See

United States v. Mayer, 6th Cir. 1975, 512 F.2d 637, 647-

648; United States v. Cook, Sth Cir. 1972, 461 F.2d 906, 910

(footnote 3); United States v. Jackson, 6th Cir. 1970, 422

F.2d 975, 977-978; cf. United States v. Untiedt, 8th Cir.

1974, 493 F.2d 1056, 1058-1059 [typographical error in

citation corrected |.

24a

The argument that there was no evidence of appellants’

complicity in a conspiracy to buy authorizing the court to

admit evidence of the declaration bearing on payment (cf.

United States v. Geaney, 2d Cir. 1969, 417 F.2d 1116, 1120)

is without substance. ‘The evidence just re'.rred to made

out appellants’ complicity in the conspiracy by a fair

preponderance of the evidence.

It is too easy to argue that the conspiracy was at an end

when the object of the conspiracy as charged was realized in

appellants’ receipt and possession of the stolen property;

the conspiracy that existed in fact, and which included the

receipt and possession charged in Count One, the jury

could find, embraced payment as its last term, and implied

the need to identify the ones who were to pay. The evidence

of Cogar, if believed, functioned to identify appellants as

the persons Santa referred to as “the rabbis’’ connected

with the highjacked Schick products, and to present San-

ta’s statement that he was going to get from appellants

“the rest of the money.”’ The most obvious, although not

the necessary, interpretation of the verdict vi not guilty on

the conspiracy count may well be that the jury did not

believe Cogar. But the Court was not free to rule as a matter

of law that the conspiracy did not include payment by ap-

pellants as a term (cf. United States v. Jackson, supra) or to

rule that the conspiracy ended with the seizure and arrests.

United States v. Borelli, 2d Cir., 336 F.2d 376, 389-390;

United States v. Frangese, 2d Cir. 1968, 392 F.2d 954, 964;

United States v. Harris, 7th Cir. 1976, 542 F.2d 1283, 1300-

1301; cf. United States v. Fischetti, Sth Cir. 1971; 450 F.2d

34, 41; United States v. Annunziato, 2d Cir. 1961, 293 F.2d

373, 376-378. There was before the court, when the case

went to the jury, not only Cogar’s testimony, but the whole

sequence of events including appellants’ insistence to the

FBI Agents that the Schick products were innocently

warehoused under documents, however dubious, which

they produced, and Pollari’s testimony that Santa paid him

and the De Fillippos the sum of $700.00 each on March

25a

13th, after the seizure. There was no question of Santa’s

complicity in the conspiracy, and the Diamond declarations

derived their significance only as they identified appellants

as the persons with whom Santa was continuing to deal in

connection with his disposition of the highjacked Schick

products. That Diamond himself was a conspirator, the

jury could find, followed from his participation in the con-

versation with Santa to which Cogar testified; he was not in

those conversations a mere observer. It was not error for the

court to rule, in ultimate substance, that the jury could find

from the evidence, if they accepted it as truthful, that the

declaration about obtaining payment from appellants,

identified through the Diamond declarations, could be

found to be in furtherance of the conspiracy, and that the

conspiracy could be found to extend beyond the seizure and

arrest and until the time when the March 14 conversation

took place.

It is not necessary to consider whether the evidence was

independently admissible on the substantive count,

although it would appear no less admissible on the issue of

knowledge (cf. United States v. Wilson, 7th Cir. 1974, 506

F.2d 1252, 1257), nor to consider whether, if it should not

have been admitted, it was so prejudicial as to require

reversal of the convictions. Cf. United States v. Floyd, 2d

Cir. 1977, 555 F.2d 45; United States v. Stanchich, 2d Cir.

1977, 550 F.2d 1294, 1298-1300.

Judgments affirmed.

26a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

—against—

MANUEL V. GOMEZ, STANLEY DIAMOND, 75 CR 762

VINCENT SANTA, FRANK JOSEPH : Memorandum

MALONEY, CHIAM KAHAN, SOLOMON of Decision

WERCBERGER and MOR WERCBERGER. : and Order

July 6, 1976

MISHLER, CH. J.

Defendants Chiam Kahan, Solomon Wercberger and

Mor Wercberger move pursuant to F.R.Crim.P. 41(f) to

suppress certain evidence seized, pursuant to a search

warrant on March 13, 1975, on the ground that the sup-

porting affidavit fails to show probable cause. The affidavit

of Patrick Colgan, special agent of the Federal Bureau of

Investigation, states that he was advised that a truck

carrying 6,910 cartons of Schick razors and toilet products

was hijacked on March 11, 1975. A reliable informant ad-

vised Agent Colgan that he was at the CBS warehouse

located at the foot of SOth Street in Brooklyn, New York on

March 12, 1975, and “observed several thousand cartons of

Schnick [sic] super two-bonded razors, bearing the Schnick

[sic] Inc., Spec No. 02-40 on the cartons.”” The supporting

affidavit claims, and the government concedes, that the

designation “Spec No. 02-40” is not an inventory number

identifying the goods, but, instead, the manufacturer’s code

number designating the type of goods packaged in the car-

ton (i.e., Schick II razors and blades). Briefly, defendants’

argument is that the information that thousands of cartons

a

ee ed

Wim

27a

of Schick razors and blades were seen in a warehouse on

March 12, 1975 is not a sufficient basis for the reasonable

belief that they were part of the same load of 6,910 cartons

of Schick razors, blades, and toilet products hijacked the

day before.’

Neither the reliability of the informant nor the reliability

of the supplied information is challenged. See Aguilar v.

State of Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964), Spinelli

v. United States, 392 U.S. 410, 89 S.Ct. 584 (1969). The

question presented on this motion is whether the un-

derlying facts in the affidavit (the hijacking of a truck con-

taining thousands of cartons of Schick razors and toilet

products on March 11, 1975, and the presence of several

thousand of Schick razors at the warehouse searched on

March 12, 1975), assuming them to be true, were sufficient

to draw a reasonable inference that the razors at the

warehouse were part of the hijacked load. Vitali v. United

States, 383 F.2d 121 (ist Cir. 1967).

Affidavits supporting search warrants are to be tested

and interpreted in a common sense and realistic manner.

United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741

(1965). The facts and circumstances must do more than

arouse a suspicion that contraband is on the premises, but

it need not rise to the level of proof necessary to convict.

Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302

(1949). The issue is whether the goods seen by the in-

formant were likely to be the goods stolen the previous day.

Defendant argues that these products are so common

that they “‘could be observed in hundreds of thousands of

places throughout the United States on that same day.”’

(Affidavit by Steven Thal, p. 5). While possible, it is

unlikely that many places would have thousands of cartons

of Shick razors on hand. The affidavit established that the

quantity of razors observed at the warehouse on the day

following the hijacking was extraordinary.

The court finds that the affidavit sufficiently demon-

strated probable cause to believe that the cartons of Schick

28a

razors at the CBS warehouse were part of the load hijacked

on March 11, 1975.

The motion to suppress is denied, and it is

SO ORDERED.

/s/ Jacob Mishler

U.S.D.J.

NOTE

‘The affidavit states that the goods “were being shipped from

Schnick [sic], Inc.. West Haven, Conn. to Anahiem. California.”

fe. 5 ade

29a

APPENDIX C

UNITED STATES COURT OF APPEALS

Second Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the fifteenth day

of May , one thousand nine hundred and seventy-

eight.

Present:

HON. ELLSWORTH A. VAN GRAAFEILAND

HON. WILLIAM H. WEBSTER

Circuit Judges

HON. JOHN F. DOOLING

District Judge

United States of America,

Plaintiff-Appellee.

v.

Manuel V. Gomez, Stanley Diamond, Vincent San-

ta, a/k/a Jimmy Santa, Frank Joseph Maloney,

Chaim Kahan, Solomon Wercberger, Mor Werc-

berger,

Defendants

Chaim Kahan, Solomon Wercberger.

Mor Wercberger,

Defendants-Appellants.

A petition for a rehearing having been filed herein by

counsel for the defendants-appellants, Chaim Kahan,

Solomon Wercberger and Mor Wercberger.

30a

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

A. Daniel Fusaro

Clerk

MN

3la

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the fifteenth day of

May, one thousand nine hundred and seventy-eight.

United States of America,

Plaintiff-Appellee,

Vv.

Manuel V. Gomez, Stanley Diamond, Vincent San-

ta, a/k/a Jimmy Santa, Frank Joseph Maloney,

Chaim Kahan, Solomon Wercberger, Mor Werc-

berger.

Defendants,

Chaim Kahan, Solomon Wercberger,

Mor Wercberger,

Defendants-Appellants.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by coun-

sel for the defendants-appellants, Chaim Kahan, Solomon

Wercberger, and Mor Wercberger, and no active judge, or

judge who was a member of the panel, having requested

that a vote be taken on said suggestion.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

IRVING R. KAUFMAN

Chief Judge

32a

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

AFFIDAVIT FORA

SEARCH WARRANT

-against-

(T.18, U.S.C., 659)

PREMISES KNOWN AS CBS WAREHOUSE,

INC.. A MULTI-STORY RED BRICK

BUILDING KNOWN AS BUILDING NO.

58 LOCATED AT THE FOOT OF SOTH

STREET. BROOKLYN, NEW YORK

Defendant.

EASTERN DISTRICT OF NEW YORK, SS:

PATRICK F. COLGAN, being duly sworn, deposes and

says that he is a Special Agent of the Federal Bureau of In-

vestigation, duly appointed according to law and acting as

such.

Your deponent has reason to believe that there is presen-

tly being concealed in the above-described premises a

quantity of cartons bearing the name Schnick, Inc., with

the Spec. No. 02-40 on the said cartons which cartons have

been stolen from Interstate Commerce in violation of Title

18. United States Code, Sectien 659.

The facts tending to establish the grounds for the issuan-

ce for a search warrant for the above-described premises

are as follows:

(1) A communication to the Federal Bureau of Inves-

tigation from a Mr. James Lestar, an employee of Time-

D.C. Trucking Corp., of Secaucus, New Jersey, that a

trailor owned and operated by Time-D.C. Trucking Corp..,

and bearing California License Plate No.: WY6336 was

!

33a

hijacked on March 11, 1975. Mr. Lestar further advised

taking from the trailor 6,910 cartons of Schnick razors and

toliet products which cartons were being shipped from the

Schnick, Inc., West Haven, Conn. to Anahiem, California.

(2) A reliable confidential informant, who has pre-

viously supplied information to the Federal Bureau of In-

vestigation which information has resulted in the arrest

of one individual for the theft of approximately Seventy-

Five Thousand Dollars ($75,000) worth of stolen mer-

chandise and who's information has also lead to the recovery

of approximately Twenty-Five Thousand Dollars ($25,000)

worth of hijacked property and the arrest of two individuals

in connection with that hijacking has stated, that he was in

the above-described premises known as CBS Warehouse on

March 12, 1975. While in the above-described warehouse

the reliable informant observed several thousand cartons of

Schnick super two bonded razors bearing the Schnick, Inc.,

Spec. No. 02-40 on the cartons.

WHEREFORE, your deponent respectfully request that

a search warrant be issued authorizing Special Agents of

the Federal Bureau of Investigation to enter in day the

premises known as CBS WAREHOUSE, INC., A MULTI-

STORY RED BRICK BUILDING KNOWN AS

BUILDING NO. 58 LOCATED AT THE FOOT OF SOTH

STREET, BROOKLYN, NEW YORK, and there to search

and seize the above-described property to the end that the

same may be dealth with according to law.

Patrick F. Colgan, Jr.

Sworn to before me this

13th day of March, 1975

VINCENT A. CATOGGIO

UNITED STATES MAGISTRATE

EASTERN DISTRICT OF NEW YORK