Petition — Bonamo v. United States

LED

FEB 21 1979

ee —————— 7 K R., CL ERW

IN THE

Supreme Court of the United States.

Octoser Term, 1978.

i £8-1294

FREDERICK J. BONAMO anv GERALD A. PINT,

PETITIONERS,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit.

JosepH ©, Detcore,

459 Broadway,

Everett, Massachusetts 02149.

Attorney for Petitioners

ADDISON C. GETCHELL & SON, INC, - THE LAWYERS’ PRINTER - BOSTON

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional and statutory provisions

Statement of the case

Reasons for granting the writ

Conclusion 12

Appendix A — Opinion of the Court of Appeals for

the Fifth Circuit 13

Appendix B — Judgment of the Court of Appeals

for the Fifth Circuit 36

Appendix C — Order of the Court of Appeals for

the Fifth Cireuit Denying Petition for Rehearing 37

ao wones np w eH

Table of Authorities Cited.

CasEs.

Nye & Nissen v. United States, 336 U.S. 613 (1949) 7

The Schooner Happet & Cargo v. United States,

2 U.S. (7 Cranch) 585 (1813) 8

United States v. Beil, 557 F. 2d 1313 (5th Cir. 1978) 10

United States v. Feola, 420 U.S. 671 (1975) 7, 10, 11

United States v. Gallagher, 565 F. 2d 981 (7th Cir.

1977) 8

United States v. Greer, 467 F. 2d 1064 (7th Cir. 1972) 8

United States v. Kilcullen, 546 F. 2d 435 (1st Cir.

1976), cert. denied 430 U.S. 906 (1976) 9n.

Wnited States v. Peoni, 100 F. 2d 401 (2d Cir.

1938) 7, 8

ii TABLE OF AUTHORITIES OITED

United States v. Wilson, 523 F. 2d 828 (8th Cir.

1975), cert. denied 434 U.S. 849 (1975) 9n,

CONSTITUTIONAL PROVISIONS AND STATUTES.

United States Constitution, Fifth Amendment 2

“Tenth Amendment 2,9

18 U.S.C. § 2 3, 6, 7

§ 111 10, 11

§ 371 3

§ 641 8

§ 659 8, 11

§ 1952 11

§ 2112 10n.

§ 2113(c) 11

§ 2314 2, 3, 8, 9, 10, 11, 12

§ 2315 8, 10

28 U.S.C. § 1254(1) 2

IN THE

Supreme Court of the United States.

Ocroser Term, 1978.

No.

FREDERICK J. BONAMO ann GERALD A. PINI,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit.

The petitioners, Frederick J. Bonamo and Gerald A.

Pini, pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Fifth Circuit.

Opinion Below.

A written opinion was issued on December 20, 1978, but

is not yet reported. A copy of this opinion is attached

hereto as Appendix A.

2

Jurisdiction.

The judgment of the Court of Appeals was entered on

December 20, 1978. A petition for rehearing was denied,

by per curiam order, on January 22, 1979. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

Questions Presented.

1. Whether parties, who participate in planning and

carrying out a purely intrastate theft, need not there-

after assist or be aware of a subsequent transportation

of the stolen goods in interstate commerce to be convicted

of both the substantive offense of interstate transporta-

tion of stolen goods and the crime of conspiracy to com-

mit that offense.

2. Whether, in a prosecution under 18 U.S.C. § 2314,

which proscribes the transportation of stolen goods in in-

terstate commerce, the ‘‘interstate commerce’’ require-

ment is jurisdictional only.

Constitutional and Statutory Provisions.

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

No person shall be . . . deprived of life, liberty

or property without due process of law;....

The Tenth Amendment to the United States Constitu-

tion provides:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the peo-

ple.

3

18 U.S.C. § 2 provides, in pertinent part:

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

18 U.S.C. § 371 provides, in pertinent part:

If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, or any agency thereof in any man-

ner or for any purpose, and one or more of such per-

sons do any act to effect the object of the conspiracy,

each shall be fined not more than $10,000.00 or im-

prisoned not more than five years, or both.

18 U.S.C. § 2314 provides, in pertinent part:

Whoever transports in interstate or foreign com-

merce any goods, wares, merchandise, securities or

money, of the value of $5,000 or more, knowing the

same to have been stolen, converted or taken by

fram”; ...

Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both.

be Statement of the Case.

After a jury trial in the United States District Court

for the Southern District of Florida, the petitioners and

three co-defendants, Jones, Franklin and Collaro were con-

victed of transporting stolen property in interstate com-

merce in violation of 18 U.S.C. § 2314 and of conspiring

to commit that offense in violation of 18 U.S.C. § 371. The

Court ordered entry of a judgment of acquittal for an-

other co-defendant, Sousa, who was charged in the con-

spiracy count only.’ Because Collaro was tried in ab-

1A seventh co-defendant, Van Zandt, was tried separately and

convicted on both counts of the indictment,

4

sentia, the Court allowed his motion for a new trial. At

his subsequent trial, he was found not guilty of both of-

fenses. Tne petitioners were each sentenced to imprison-

ment for seven years on the substantive count and for

three years on the conspiracy count, the sentences to run

concurrently.

The Court of Appeals affirmed the convictions of the

petitioners and denied their petition for rehearing.’

During the trial, it was shown that sometime during the

eveniag of May 27, 1977, four books (or portfolios) con-

taining Audubon prints were stolen from the Audubon

House in Key West, Florida. It was stipulated that these

four books had a value of approximately $400,000.00.

The government’s chief witness was Roy Louis Morrell,

who was named as an unindicted co-conspirator. Morrell

testified that he lived with Van Zandt and was employed

by Van Zandt as an accountant. Morrell testified that on

the evening of May 27, 1977, he took part in a burglary

of the Audubon House in Key West, Florida. He stated

that his job was to sit in a Ford Grenada and listen to

a police scanner, while some of the other defendants ac-

tually entered the building. He stated that on the pre-

vious evening of May 26, 1977, he was present at a meet-

ing in a room of the Pier House motel. Also present at

the meeting were the defendants Van Zandt, Pini, Bo-

namo, Jones, Sousa and Collaro. Bonamo, Pini and Collaro

had come to Key West from Boston. The main conversation

at this meeting was about. the burglary. The witness

stated that there was an agreement that there would be

a robbery and that these people would be involved. At

this meeting, the parties allegedly discussed who would

do what. Bonamo was supposed to unlock the house; Pini

* Co-defendants Jones and Franklin also appealed their convic-

tions. Jones subsequently withdrew his appeal in exchange for

a different sentence. In the same opinion issued on December 20,

1978, the Court of Appeals reversed Franklin’s convictions,

ES Se

5

and Collaro were supposed to enter and remove the books;

Van Zandt was supposed to stand watch in a park across

the street; Morrell (the witness) was supposed to watch

from the automobile; and Jones was supposed to pick up

the books from in front of the Audubon House. Morrell

testified that someone mentioned that the books would go

‘‘up north,’’ but that he did not know who mentioned it.

He reiterated that the only thing discussed at the meet-

ing was the burglary and that disposition of the books

was not discussed.

Morrell testified that, on the actual night of crime, he

was standing watch in a park near the Audubon House

and at about 7:00 p.m., Van Zandt drove up in the Gra-

nada. Also in the car were the defendants, Pini, Bonamo,

Collaro and Sousa. Morrell and Sousa stayed in the car,

Van Zandt went to the park, and the others dispersed

toward the Audubon House. Sometime later, Bonamo

came back to the car and stated to Morrell that he had

done his job. Bonamo then left the scene with Sousa.

Thereafter, Pini and Collaro came back to the car and

said that they needed a screwdriver. Van Zandt and Pini

did find a screwdriver in the car. Then, Van Zandt went

back to the park and the other two headed back toward

the house. Later Van Zandt came back near the car and

made a phone call. Thereafter Jones drove by in a truck

and parked in front of the Audubon House. The witness

testified that he never observed any books being taken

from the house, or being picked up by Jones. He also

testified that after the burglary on May 27, 1977, he never

again saw Bonamo, Pini or Collaro in Key West, and that

they did not know where the books would be taken.

Morrell testified that the next day, May 28, 1977, fol-

lowing Van Zandt’s directions, he sent a telegraphic

money order to Kester Buchanan in North Carolina, A

6

day or two thereafter Buchanan arrived in Key West

and a meeting was held at Van Zandt’s apartment. Van

Zandt, Morrell, Buchanan and Jones were present at the

meeting. At this meeting, for the first time, disposition

of the books was discussed. The parties discussed trans-

porting the books up the Keys to Miami, and then even-

tually to North Carolina.

Kester Buchanan, another unindicted co-conspirator,

testified that he was a resident of North Carolina and that

he received a call from Van Zandt asking him to come to

Key West. He corroborated Morrell’s testimony that

there was a meeting between Van Zandt, Morrell, Jones

and himself. The witness stated that Van Zandt described

the burglary to him. He stated that Van Zandt told him

that he paid Bonamo $30,000.00 to shut off the alarm. He

testified that he picked up the books the following morning

from a warehouse in Key West and that the defendant

Franklin helped him load the books into his car. He then

drove his car to Miami, following Van Zandt and Jones in

another car. After Miami, he continued to North Carolina

alone. The witness testified that he never saw or talked

to Bonamo or Pini in Key West.

Although the indictment made no mention of 18 U.S.C.

§ 2, at the government’s request the Court instructed the

jury at trial’s end that the defendants were also charged

with having violated its provisions.

Reasons for Granting the Writ.

1. In its opinion, the Fifth Circuit held that the peti-

tioners, who participated in planning and carrying out an

intrastate theft, need not thereafter assist or be aware of

a subsequent transportation of the stolen goods in inter-

state commerce to be convicted of both the substantive

offense of interstate transportation of stolen goods and

the crime of conspiracy to commit that offense. This hold-

7

ing is a departure from all accepted and traditional con-

cepts of criminal liability, is in conflict with the applicable

decisions of this Court and represents an unprecedented

expansion of federal criminal jurisdiction.

In reaching its conclusion, the Court relied on a line of

decisions holding that knowledge of the use of interstate

facilities is not a prerequisite to criminal liability. The

Court, however, has confused the concept of knowledge of

a jurisdictional element with the concept of knowledge of

the crime itself, in this case a transportation of stolen

goods. The Court has, in essence, stated that a person can

be guilty of a crime, even though he neither assisted in

nor was aware of the commission of that particular crime.

In United States v. Feola, 420 U.S. 671, 696 (1975), this

Court recognized that it may not be necessary to show

knowledge of the facts giving rise to federal jurisdiction

for conviction of a substantive offense embodying a mens

rea requirement. In order to possess the requisite mens

rea, a person must have knowledge of the particular crime.

According to the opinion of the Fifth Circuit, however, the

mens rea requirement is unnecessary. Such a holding

ignores a defendant’s right to due process of law.

In the instant case, the petitioners did not participate

in the subsequent interstate transportation of stolen goods.

Accordingly, their convictions could only be supported

under a theory of ‘‘aiding and abetting’’. 18 U.S.C. ¢ 2.

To be an ‘‘aider and abettor’’ requires that a defendant

associate himself with the venture, that he participate in

it as in something that he wishes to bring about and that

he seek by his action to make it succeed. Nye & Nissen v.

United States, 336 U.S. 613, 619 (1949); United States v.

Peon, 100 F. 2d 401, 402 (2d Cir. 1938). There must be

participation at some stage of a venture accompanied by

knowledge of the result and intent to bring about that re-

8

sult. United States v. Peoni, supra at 402. The Fifth Cir-

cuit concluded that the petitioners need not assist in or

have knowledge of the interstate transportation. Such a

conclusion is contrary to the applicable decisions of this

Court and contrary to the traditional concepts of criminal

liability.

Tt must be noted that the Court’s finding that the evi-

dence supported the petitioners’ convictions of the sub-

stantive charge was based upon the existence of evidence

that the petitioners participated in the actual theft of the

goods. It is respectfully submitted that this participation

is insufficient to support a conviction of the substantive

crime. To hold otherwise is contrary to the statutory

designation of crimes as embodied in Title 18 of the United

States Code. Congress has specifically designated stealing

(18 U.S.C. §§ 659 and 641), transportation of stolen goods

(18 U.S.C. § 2314) and receiving or selling stolen goods

(18 U.S.C. § 2315) as separate and distinct crimes. A find-

ing that one who steals goods aids and abets one who sub-

sequently transports those goods effectively obliterates

the distinction between the various proscribed activities.

Such a construction would eliminate the need for the

statutory offense of stealing. See United States v. Greer,

467 F. 2d 1064, 1068 (7th Cir. 1972). Moreover, the theft

of anything requires some transportation of the stolen

articles; otherwise there would be no theft. The crime

committed, however, is stealing, not transportation. The

crime charged clearly must be the crime committed. United

States v. Gallagher, 565 F. 2d 981, 984 (7th Cir. 1977). In

The Schooner Happet & Cargo v. United States, 2 U.S.

(7 Cranch) 585 (1813), Chief Justice Marshall stated at

page 587:

The rule that man shall not be charged with one

crime and convicted of another, may sometimes cover

9

real guilt, but its observance is essential to the pres-

ervation of innocence.

Likewise, a man who commits one crime should not be con-

victed of another.

The Court’s decision represents an expansion of federal

criminal jurisdiction, a condonation of the federal govern-

ment’s prosecution of state crimes. Concededly, the jur-

isdiction of the federal government to prosecute the inter-

state transportation of stolen goods cannot be contested.

This jurisdiction does not extend to the prosecution of the

intrastate theft, merely because the stolen goods subse-

quently moved in interstate commerce, Section 2314 was

enacted by Congress pursuant to the powers granted to

it by the Commerce Clause of the United States Constitu-

tion. The Tenth Amendment, however, insures that all

other power not explicitly delegated to the United States

is reserved to the states. One of these reserved powers is

the authority to prosecute state crimes. The Court’s opinion

necessarily affects the delicate balance between federal

and state power and allows the federal government to in-

trude upon the power reserved solely to the states,

2. It is respectfully submitted that under 18 U.S.C.

§ 2314, the interstate transportation requirement is more

than jurisdictional only. The Fifth Circuit, following deci-

sions from other circuits, held that to establish a substan-

tive violation of 4 2314 the government need only show

knowledge that the goods were stolen, ‘“‘together with the

actual fact that they were transported interstate.’’? Ac-

cordingly, the Court then concluded that the petitioners

need not have knowledge that the goods travelled inter-

state. In upholding the petitioners’ conspiracy convictions,

®See United States v. Kilcullen, 546 F. 2d 435 (1st Cir. 1976),

cert. denied 430 U.S. 906 (1976); United States v. Wilson, 523

F’, 2d 828 (8th Cir. 1975), cert. denied 434 U.S, 849 (1975).

10

the Court relied on this Court’s analysis in United States v.

Feola, supra, and concluded that knowledge of the facts

establishing federal jurisdiction is not a necessary element

of the crime of conspiracy to violate § 2314. The Court has

thus made a determination that the ‘‘interstate commerce’”’

requirement of 18 U.S.C. § 2314 is jurisdictional only.

The petitioners contend that the holding and dicta of Feola

are not applicable to the instant case. In Feola, this Court

determined that the ‘‘federal officer’’ requirement found

in 18 U.S.C. § 111, which proscribes assault upon certain

federal employees, was jurisdictional only. Consequently,

this Court held that the government need not show that a

defendant, in a conspiracy trial, had knowledge of the facts

that serve to establish federal jurisdiction. In reaching its

decision, this Court noted that the crime of assault would

have been committed whether or not the intended victim

was a federal officer. In such a situation it is clear that

the ‘‘federal officer requirement’’ is jurisdictional only.

The jurisdictional fact in Feola was merely a matter of

‘‘status’’: the fact that the victims of the intended assault

were federal officers.

The interstate transportation requirement in 18 U.S.C.

§ 2314 is more than jurisdictional only. See United States

v. Beil, 557 F. 2d 1313, 1320 (Sth Cir. 1978) (Coleman, J.

dissenting).* The defendants in Feola did not have to do

anything to confer federal jurisdiction. Likewise, a de-

fendant charged under 18 U.S.C. § 2315, which proscribes

receiving, selling or concealing stolen property which has

moved in interstate commerce, need not do anything to

confer federal jurisdiction. That the property moved in-

* Beil involved a conspiracy to violate the Dyer Act (18 U.S.C.

§ 2112), which proscribes the interstate transportation of stolen

motor vehicles. Judge Coleman opined that interstate transporta-

tion is more than jurisdictional in a Dyer Act case; that it is an

element of the crime ‘tself. United States v. Beil, supra at 1321,

11

terstate is merely a matter of ‘‘status.’’ The jurisdictional

fact is also a matter of status in most federal crimes: 18

U.S.C. § 659 (theft of goods in interestate commerce) ;

18 U.S.C, § 2113(¢) (receiving or possessing money stolen

from a bank); 18 U.S.C. § 1952 (use of interstate facilities

to carry on illegal activity). In addition, federal jurisdic-

tion attaches in many cases where the proscribed activity

takes place on federal property. In such case, the jurisdic-

tional fact is a matter of ‘‘situs.’’ In all such cases, the

defendant need not do anything to confer the federal

jurisdiction.

Under 18 U.S.C. § 2314, however, before federal juris-

diction attaches, a defendant must take specific action, i.e.

transport the property across a state line. Without such

action a crime has not been committed, unlike the above

mentioned examples where a crime would have been com-

mitted whether or not federal jurisdiction attached. It

must be noted that most individual states, by statute, have

proscribed stealing and receiving or concealing stolen

property, but few, if any, have proscribed transportation

of stolen property.

In Feola, this Court held at 696, ‘‘that where knowledge

of the facts giving rise to federal jurisdiction is not nec-

essary for conviction of a substantive offense embodying

a mens rea requirement, such knowledge is equally irrele-

van. to questions of responsibility for conspiracy to com-

mit that offense.’’ Consequently, whether the facts giv-

ing rise to federal jurisdiction are jurisdictional only or

an element of the crime itself is a question which arises

in all federal prosecutions. This Court merely determined

that the federal element in 18 U.S.C. § 111 is jurisdic-

tional only. This Court, however, did not decide whether

the federal element is jurisdictional only in‘ all federal

crimes, apparently leaving this decision to the various Cir-

cuit Courts. |

12

It is respectfully submitted that the ‘‘interstate trans-

portation’’ requirement of 18 U.S.C. § 2314 is more than

jurisdictional only, but an element of the crime itself, be-

cause of the specific action required before federal juris-

diction attaches. An ultimate determination of this ques-

tion is important because of its effect upon prosecutions

for both substantive ard conspiratorial offenses, as well

as its effect upon the determination of criminal liability.

This is an important question of federal law which has

not been, but should be, settled by this Court.

Conclusion.

For the foregoing reasons it is respectfully submitted

that the petition for a writ of certiorari should be granted.

Respectfully submitted,

JOSEPH C. DELCORE,

459 Broadway,

Everett, Massachusetts 02149.

Attorney for Petitioners

13

Appendix A.

UNITED STATES OF AMERICA,

PuLaIntTiFF-APPELLEE,

Vv.

GORDON W. FRANKLIN, FREDERICK J. BONOMO,

GERALD A. PINT,

DereNDANTS-APPELLANTS.

No. 78-5056.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1978.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA,

Before JONES, AINSWORTH and HILL, Circuit

Judges.

AINSWORTH Circuit Judge:

Gerald Pini, Frederick Bonomo' and Gordon Franklin

appeal their convictions on charges of transporting stolen

goods in interstate commerce, knowing the same to have

been stolen, in violation of 18 U.S.C. § 2314,? and of violat-

? We adopt the spelling ‘‘ Bonomo,”’ which was. used in the indict-

ment, although the transcript and appellant’s brief spell the name

**Bonamo.”’

218 U.S.C. § 2314 provides in pertinent part:

Whoever transports in interstate or foreign commerce any

goods, wares, merchandise, securities or money, of the value

of $5,000 or more, knowing the same to have been stolen, con-

verted or taken by fraud; ... Shall be fined not more than

$10,000 or imprisoned not more than ten years, or both.

14

ing 18 U.S.C. § 371° by conspiring to violate 18 U.S.C.

§ 2314, asserting numerous errors in their trial. The conten-

tions that Bonomo and Pini advance are meritless and

we therefore affirm their convictions. However, we find in-

sufficien evidence to support Franklin’s convictions and

reverse.

I. Facruat BackGrounD

Appellants were indicted and convicted for their alleged

participation in a plot, organized by one Francis de Forrest

Van Zandt, to steal four ‘‘elephant folios’’ of John James

Audubon bird prints, containing 435 prints worth a total

of more than $400,000, from the Audubon House in Key

West, Florida. Pini and Bonomo arrived in Key West,

Florida, from Boston on Wednesday, May 25, 1977, two

days before the Audubon House was burglarized. Accord-

ing to the testimony at trial of Van Zandt’s accountant,

Roy Louis Morrell, Jr., a coconspirator who testified for

the Government, both Pini and Bonomo were among those

attending a meeting on Thursday, May 26, at the Pier

House Motel. There, Van Zandt and the others went over

the plans for the burglary, discussed the subsequent disposi-

tion of the Audubon prints, and determined the role of

each participant in. the proposed theft. Bonomo’s task was

to pick the lock of the Audubon House and disable the alarm

system, while Pini and another man would break into the

case containing the elephant folios and carry the prints

§ Under 18 U.S.C. § 371,

If two or more persons conspire-either to commit any offense

against the United States, or to defraud the United States, or

any agency thereof in any manner or for any purpose, and

one or more of such persons do any act to effect the object of

the conspiracy, each shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

Bo te

15

.

from the building.t Morrell testified that after this meet-

ing, the plotters went to the Audubon House, intending

to commit the theft; however, the sound of an alarm and

the fear that someone remained inside the building led

them to withdraw.

They returned the next evening, Friday, May 27, and car-

ried out the burglary. Morrell related that Bonomo went

toward Audubon House and returned shortly thereafter,

saying ‘‘I’ve done my job, now the others will have to do

theirs.’’ Pini took a crowbar from the back seat of the car

from which Morrell was keeping watch and headed for the

building. A short time passed and Pini came back, explain-

ing that the crowbar was too large to pry open the folio’s

ease and saying that he needed a screwdriver. Pini and

Van Zandt drove off in the lookout car, according to Mor-

rell, returning in approximately 25 minutes with a screw-

driver that Pini then carried toward the House. After a

short while, Pini came back out to get Van Zandt, explaining

that the folios were too heavy for two men to carry; Van

Zandt went in to assist. About 20 minutes later, Van Zandt

left the building and made a phone call, and approximately

10 minutes after that another participant Tim Jones, pulled

up in a pickup truck. Van Zandt and Pini loaded the folios

into the back of the truck, which Jones then drove off, and

Van Zandt took Pini and Morrell in the lookout car back

to his condominium.°

The next morning, following Van Zandt’s instructions,

Morrell drove to the warehouse to which Jones had taken

*During his testimony, Morrell identified a photograph of

Joseph Collaro as the man who was to accompany Pini into the

building, Collaro was tried separately, after the trial of appel-

lants, and acquitted of both the substantive charge and the con-

spiracy offense.

5 According to Morrell, the man he identified as Collaro also

helped load the prints into the truck and accompanied the others

back to Van Zandt’s condominium,

16

the stolen art and asked appellant Gordon Franklin, who

worked there, ‘‘if everything was okay.’’ Franklin replied,

‘*Yes.’’ On Sunday, May 29, Kester Buchanan arrived in

Key West. Buchanan testified that Van Zandt had called

him on Friday afternoon at his home in North Carolina,

describing an ‘‘emergency’’ and asking him to come to Key

West ‘‘immediately’’ and that in response to Buchanan’s

request for funds Van Zandt ordered Morrell to send him

a telegraphic money order.

According to Buchanan’s testimony, on Monday morn-

ing, May 30, he conferred with Van Zandt, Morrell and

Jones. The four then drove to the warehouse, and appel-

lant Franklin helped them load the folios, now wrapped in

green plastic into the trunk of Buchanan’s car. Jones and

Van Zandt took a separate automobile to Miami, followed

by Buchanan, who continued on to his home in North Caro-

lina, there to await further instructions. On the stand,

Buchanan recounted Van Zandt’s telephone call approxi-

mately 5 days later asking him to take the prints to New

York. When Buchanan replied that he was unavailable,

Van Zandt sent Morrell to pick up the folios and transport

them northward. Morrell was later apprehended in New

Jersey with one of the folios in his possession and he sub-

sequently pled guilty in a federal court in New Jersey to

the charge of interstate transportation of stolen property,

receiving a sentence of five years’ probation. Buchanan

pled guilty in the United States District Court for the

Southern District of Florida, the same court where these

appellants were tried, to a charge of conspiring to trans-

port stolen property in interstate commerce and was await-

ing sentencing at the time of his testimony at the trial.

Appellants Pini, Bonomo and Franklin were indicted and

tried along with Tim Jones, among others.* The jury found

® Also indicted were Van Zandt, Collaro, and Susan Sousa who,

according to Morrell, had been in the lookout car with him during

17

the four men guilty of violating the substantive provisions

of 18 U.S.C. § 2314, as well as conspiring under 18 U.S.C.

§ 371 to violate section 2314. Bonomo and Pini each re-

ceived concurrent sentences of seven years for the substan-

tive crime and three years for the conspiracy offense.

Franklin was sentenced to concurrent terms of seven years

on the substantive conviction and four years for the con-

spiracy charge.’

II. Tue Cuarms or Bonomo anp Print

A. Sufficiency of the Evidence

Pini and Bonomo first claim that the district court erred

in denying their motions for judgments of acquittal, since

the evidence was insufficient to support a guilty verdict on

either the substantive offense or the conspiracy charge. We

disagree, as the record plainly demonstrates the presence

of sufficient evidence to sustain appellants’ convictions

under both counts of the indictment.

a portion of the burglary. The district court granted the motion

of Sousa’s counsel for a judgment of acquittal. As previously noted,

Collaro was tried separately and acquitted. Because Van Zandt’s

lawyer was involved with another case and thus unavailable at the

time of trial, the court granted Van Zandt’s motion for severance.

He was convicted on both counts of the indictment at his subse-

quent trial.

7 Jones was committed to the custody of the Attorney General

for treatment and supervision pursuant to the Federal Youth Cor-

rections Act, 18 U.S.C. § 5010(b), as extended by 18 U.S.C. ¢ 4216,

until discharged by the United States Parole Commission as pro-

vided in 18 U.S.C. ¢ 5017(c). Section 5017(c) provides that

‘*Ta] youth offender committed under § 5010(b) of this chapter

shall be released conditionally under supervision on or before the

expiration of four years from the date of his conviction and shall

be discharged unconditionally on or before six years from the date

of his conviction.’’ Jones originally appealed his conviction, but

dropped the action in exchange for government ‘‘accommodation’’

to his motion for resentencing to a definite term as an adult offender.

18

1. The Substantive Offense

In challenging their convictions for the substantive of-

fense, appellants stress the absence of any evidence that

they took part in or facilitated the interstate transporta-

tion of the stolen art. Essentially, they contend that their

participation ended with the burglary itself, and therefore

that they cannot have violated 18 U.S.C. § 2314.

That statute provides in pertinent part that ‘‘[w]ho-

ever transports in interstate or foreign commerce any

goods, ... knowing the same to have been stolen,... [s]hall

be fined not more than $10,000 or imprisoned not more than

ten years, or both.’’ We follow the unvarying lead of our

fellow circuits in holding that to establish a substantive

violation of section 2314 the Government need only show

knowledge that the goods were stolen, ‘‘together with the

actual fact that they were transported interstate.’’ United

States v. Kilcullen, 1 Cir., 1976, 546 F.2d 435, 445 n.15, cert.

denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582; United

States v. Cowden, 1 Cir., 1976, 545 F.2d 257, cert. denied,

430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; United States

v. Wilson, 8 Cir.,1975, 523 F.2d 828, cert. denied, 434 U.S.

849, 98 S.Ct. 158, 54 L.Ed.2d 117; United States v. Ludwig,

8 Cir., 1975, 523 F.2d 705, 707; United States v. White, 6

Cir., 1971, 451 F.2d 559, 559-60, cert. denied, 405 U.S. 1071,

92 S.Ct. 1522, 31 L.Ed.2d 804 (1972); United States v.

Mingoia, 2 Cir., 1970, 424 F.2d 710; United States v. Kier-

schke, 6 Cir., 1968, 315 F.2d 315, 317, 318; United States v.

Tannuzzo, 2 Cir., 1949, 174 F.2d 177, 180.8 See United States

v, Kelly, 5 Cir., 1978, 569 F.2d 928, 934.

8 This court has taken the same approach in dealing with two

analogous statutes. In United States v. Doolittle, 5 Cir., 507 F.2d

1368, cert. denied, 423 U.S. 1008, 96 S.Ct. 439, 46 L.Ed.2d 380

(1975), the appellants had been convicted of using interstate wire

and telephone facilities to carry on illegal gambling operations,

19

Though the plain language of section 2314 requires

knowledge that the goods were stolen, it imposes ‘‘no re-

quirement ... that the accused knew, foresee, or intend

that instrumentalities of interstate commerce will be used.’’

United States v. Powers, 9 Cir., 1971, 487 F. 2d 1160-1161.

This is so because the statute ‘‘is aimed at the evils of

theft, fraud, and counterfeiting and not at the regulation

of interstate transportation. Suppression of movement of

the fruits of theft and fraud is only the means to the end

of suppressing theft and fraud themselves. The sole rea-

son for conditioning the statutes’ prohibitions upon use

of interstate commerce is to provide a constitutional basis

for the exercise of federal power.’’ United States v.

Roselli, 9 Cir., 1970, 482 F.2d 879, 891, cert. denied, 401

U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). Accordingly,

whether Pini or Bonomo assisted or was aware of the

actual interstate shipment of the Audubon folios has no

in violation of 18 U.S.C, § 1952. The district court had ‘‘specifi-

eally found that two defendants lacked actual knowledge of the

use of interstate facilities in the gambling operation.’’ The Doo-

little court concluded that ‘‘this lack of specific knowledge is legal-

ly irrelevant. The words of section 1952 do not require specific

knowledge of the use of interstate facilities and we agree with

the decisions in other Circuits that such knowledge is not a pre-

requisite to criminal liability thereunder.’’ Id. at 1872. Similarly,

in Nelson v. United States, 5 Cir., 1969, 415 F.2d 483, the defend-

ant was convicted of receiving stolen property in violation of 18

U.S.C. § 2113(¢), which prohibits the receipt or possession of any

property or money ‘‘knowing the same to have been taken from

a bank.’’ Section 2113(f) defines ‘‘bank’’ to include all financial

institutions whose deposits are insured by the Federal Deposit In-

surance Corporation. Although the evidence showed that the de-

fendant knew that the money he received had been stolen from

a bank, the Nelson court asked ‘‘whether it must be shown that

the appellant knew the additional fact{ ] ... that the bank was

FDIC insured’’ and answered in the negative: ‘‘[p]roving that

the bank was insured by the FDIC is simply an additional ele-

ment of jurisdictional proof which must be shown by the Govern-

ment at the trial.’’ Jd. at 486,

20

bearing on the validity of their convictions for the sub-

stantive offense.’

Viewing ‘‘the evidence and all reasonable inferences

flowing therefrom in the light most favorable to the Gov-

ernment,’’ United States v. Cadillac Overall Supply Co.,

5 Cir., 1978, 568 F.2d 1078, 1084; Glasser v. United States,

315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942),

we find sufficient evidence to support appellants’ convic-

tions on the substantive charge. The actual fact that the

stolen prints were transported interstate stands uncontro-

verted, and both Pini and Bonomo concede not only knowl-

edge of the prints’ stolen character but also participation

in the actual theft.

2. The Conspiracy Charge

Appellants Pini and Bonomo contend also that

‘‘there was insufficient evidence, either direct or circum-

stantial to show that they were members of a conspiracy,

the purpose of which was to transport stolen goods in in-

terstate commerce.” This contention must also fail, as

we reject appellants’ assumption that, to prove a conspiracy

under 18 U.S.C. § 371 to violate section 2314, the Govern-

ment had to establish knowledge on the part of Bonomo

and Pini that the Audubon folios were to be transported

interstate. Instead, we adopt the well-established view

® Unlike the current language of section 2314, an earlier ver-

sion of the statute referred to persons ‘‘causing or procuring’’

the interstate transportation of stolen property. This language

was later ‘‘omitted as unnecessary’’ in view of 18 U.S.C, § 2 and

its definition of ‘‘principal.’’ Historical and Revision Notes, 18

U.S.C.A, § 2314. 18 U.S.C. § 2 provides that anyone who ‘‘aids,

abets, counsels, commands, induces or procures’’ the commission

of an offense against the United States ‘‘is punishable as a prin-

cipal.’’ Although the indictment made no mention of section 2,

at the Government’s request the district court instructed the jury

at trial’s end that the defendants were also charged with having

violated its provisions,

21

that knowledge of the jurisdictional element—here, the in-

terstate shipment of the stolen goods—‘‘is as irrelevant

to the purposes of the general conspiracy statute as it is

to the purposes of the substantive statutes.’’ United

States v. Roselli, supra, 432 F.2d at 892.

On its face, the federal conspiracy statute’? does

not support ‘‘the proposition that to be guilty of conspiracy

a defendant in effect must have known that his conduct

violated federal law.’’ United States v. Feola, 420 U.S.

671, 687, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975). Rather

than add any essential elements to substantive statutes,

the conspiracy law merely prohibits ‘‘an agreement by two

or more persons to commit the substantive crime(s].’’

United States v. Roselli, supra, 432 F.2d at 891; United

States v. Feola, supra, 420 U.S. at 687, 95 S.Ct. at 1265.

In United States v. Feola, the Supreme Court held that

knowledge of the fact establishing federal jurisdiction, in

that case that the victim of one’s assault was a federal

officer, was not a necessary element of a conspiracy un-

der section 371 to violate 18 U.S.C. § 111, which prohibits

an assault on a federal officer while he is engaged in his

official duties. The Court reasoned that requiring knowl-

edge of the jurisdictional element would not serve the two

main values expressed in our law of conspiracy. 420 U.S.

at 963, 95 S.Ct. at 1268. Writing for the Feola majority,

Justice Blackmun identified as the first of these values

the ‘‘protection of society from the dangers of concerted

criminal activity.’’ He observed ‘‘[t]hat individuals know

that their planned venture violates federal as well as

state law seems totally irrelevant’’ to this purpose of

conspiracy law and concluded that ‘‘the act of agreement

1018 U.S.C. § 371 makes it unlawful when ‘‘two or more per-

sons conspire ... to commit any offense against the United States

. , and one or more of such persons do any act to effect the

object of the conspiracy .. .’’

22

to commit the crime is no less opprobrious and no less

dangerous because of the absence of knowledge of a fact

unnecessary to the formation of criminal intent.’’ Jd. As

articulated in Feola, the second value underlying our con-

spiracy law relates to the inchoate nature of conspiracy.

At some point between the mere preparation and actual

consummation of a crime, the likelihood of the act’s com-

mission is great enough and the criminal intent so de-

veioped as to ‘‘warrant[] preventive action,’’ and the law

of conspiracy marks the agreement to participate in crim-

inal activity ‘‘as an event of sufficient threat to social

order to permit the imposition of criminal sanctions for

the agreement alone, plus on overt act in pursuit of it...’’

The Supreme Court reiterated that ‘‘we fail to see how

the agreement is any less blameworthy or constitutes less

of a danger to society solely because the participants are

unaware which body of law they intend to violate,’’ and

declared ‘‘that imposition of a requirement of knowledge

of those facts that serve only to establish federal juris-

diction would render it more difficult to serve the policy

behind the law of conspiracy without serving any other

apparent social policy.”’ Jd. 95 S.Ct. at 1269.

We find persausive the Feola analysis’! and the rea-

soning of the Ninth Cireuit’s earlier decision in United

States v. Roselli, supra, which, like this case, involved an

alleged conspiracy to violate section 2314. Therefore, we

hold that knowledge of the facts establishing federal juris-

diction is not a necessary element of the crime of conspir-

Though the issue in Feola was limited to the application of

section 371 to 18 U.S.C. § 111, the Court stated a broad holding,

declaring ‘‘that where knowledge of the facts giving rise to fed-

eral jurisdiction is not necessary for conviction of a substantive

offense embodying a mens rea requirement, such knowledge is

equally irrelevant to questions of responsibility for conspiracy to

commit that offense.’’ 420 U.S. at 696, 95 S.Ct. at 1269.

oe St cen rele

23

acy under 18 U.S.C. § 371 to violate section 2314.” Accord:

United States v. Anderson, 9 Cir., 1976, 532 F.2d 1218,

1230, cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Hd.2d

107; United States v. Newson, 10 Cir., 1976, 581 F.2d 979,

981; United States v. Greer, 7 Cir., 1972, 467 F.2d 1064,

1071, cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d

590 (1973); see United States v. Viruet, 2 Cir., 1976, 539

F.2d 295, 297 (knowledge of fact that hijacked truck was

moving in interstate commerce not an essential element

of conspiracy to violate 18 U.S.C. § 659, which prohibits

the unlawful taking, with intent to convert to one’s own

use, of goods moving as an interstate shipment of freight) ;

United States v. Lefaivre, 4 Cir., 1974, 507 F.2d 1288, 1299,

cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762

(1975) (knowledge that interstate facilities were used not

a necessary element of conspiracy to violate 18 U.S.C.

§ 1952, which prohibits interstate travel or the use of in-

terstate facilities, including the mails, to engage ‘‘in aid

of racketeering enterprises’’); United States v. Falco, 9

Cir., 1973, 478 F.2d 1376, 1378 (knowledge that stolen

property belonged to the Government unnecessary to sup-

port conviction for conspiracy to violate 18 U.S.C. § 641,

which prohibits the knowing conversion or unauthorized

sale of any ‘‘thing of value of the United States’’).”

12 Moreover, although we decide today that knowledge of the

fact of interstate transportation is irrelevant to guilt under either

section 2314 or section 371 as applied to that substantive provi-

sion, we note in passing a further detail of witness Morrell’s tes-

timony. Morrell said that it was mentioned at the May 26 Pier

House meeting that the Audubon folios would be going ‘‘up north’’

after the robbery. The jury could reasonably infer from this

testimony that Bonomo and Pini, both of whom attended the

meeting, knew that the stolen art would be transported interstate.

13 Our disposition of this issue not only follows the holding in

Feola and agrees with all available direct authority, but also com-

ports with this court’s decisions in at least four analogous areas.

Nelson v. United States, 5 Cir., 1969, 415 F.2d 483, involved a

24

Unless we believe that ‘‘the jury must necessarily

have had a reasonable doubt,’’ United States v. War-

ner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404

U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971), regarding

one of the essential elements of the conspiracy, we can-

not conclude that the evidence was insufficient to support

the guilty verdicts the jury returned against Bonomo and

Pini under the second count of the indictment. First, the

Government must have shown the existence of the con-

spiracy: ‘‘an agreement by two or more persons to com-

bine efforts for an illegal purpose.’’ Jd.; United States v.

Bright, 5 Cir., 1977, 550 F.2d 240, 241. After once again

defendant convicted of both the substantive offense of violating

18 U.S.C. § 2113(¢) and conspiracy under section 371. Section

2113(c) makes unlawful the receipt or possession of any property

or money, ‘‘knowing the same to have been taken from a bank,’’

which section 2113(f) defines to include all financial institutions

whose deposits are insured by the Federal Deposit Insurance Cor-

poration. The Nelson court concluded that the Government need

not show knowledge on the part of the defendant of the bank’s

federally insured status since ‘‘[p]roving that the bank was in-

sured by the FDIC is simply an additional element of jurisdic-

tional proof which must be shown by the Government at the trial.’’

415 F.2d at 486. Likewise, in United States v. Muncy, 5 Cir.,

1976, 526 F.2d 1261, we applied the reasoning of Feola, concluded

that ‘‘[i]nterstate transportation is a jurisdictional element’’ of

18 U.S.C. § 2315, which prohibits the receipt of stolen goods that

are a part of or moving in interstate commerce, knowing them to

have been stolen, and announced that ‘‘knowledge of jurisdic-

tional facts is not required in determining guilt of either the sub-

stantive offense or the conspiracy offense.’’ Jd. Finally, in two

cases dealing with the Dyer Act, 18 U.S.C. §§ 2312, 2313, which

prohibits the transportation of motor vehicles in interstate com-

merce and the receipt, concealment or storage of vehicles that

are a part of interstate commerce, with knowledge that the ve-

hicles were stolen, we held that proof of knowledge that the ve-

hicles moved in interstate commerce was unnecessary to support

a conviction for conspiracy to violate the Act. United States v.

Beil, 5 Cir., 1978, 577 F.2d 1313, 1315; Gurleski v. United States,

5 Cir., 1968, 405 F.2d 253, 269, cert. denied, 395 U.S. 981, 89

S.Ct. 2140, 23 L.Ed.2d 769 (1969),

25

viewing the evidence in the light most favorable to the

Government, we find that the jury need not have had a

reasonable doubt as to whether the conspiracy existed.

Once that element is established, the connection of each

defendant to the conspiracy must be demonstrated. United

States v. Warner, supra, 441 F.2d at 830; United States

v. Bright, supra, 550 F.2d at 242. Here, there is ample

evidence connecting both Pini and Bonomo to the conspir-

acy. Morrell testified that both men attended the meeting

that planned the burglary and determined the assignment

of each conspirator; he also described their participation

in both the abortive attempt and the actual burglary. Fi-

nally, the Government was required to show beyond a

reasonable doubt that each defendant ‘‘intentionally did

some act or thing to further or carry on’’ the conspiracy.

Causey v. United States, 5 Cir., 1965, 352 F.2d 203, 207.

However, ‘‘once it is shown that a particular defendant

joined the conspiracy, the acts of his co-conspirators done

in furtherance of the conspiracy are attributable to him

and he becomes equally liable for them.’’ United States

v. Warner, swpra, 441 F.2d at 830. Admitted coconspira-

tors Buchanan and Morrell acknowledged in their testi-

mony the commission of two of the overt acts alleged in

the indictment: that Morrell had sent a telegraphic money

order to Buchanan and that Buchanan had transported

the stolen prints in the trunk of his car from Key West

to North Carolina. Again, we do not believe that the jury

need have had any reasonable doubt regarding the com-

mission of these overt acts. Because we cannot say that

the jury must necessarily have entertained a reasonable

doubt with regard to any essential element of the crime,

we conclude that the conspiracy convictions of Bonomo

and Pini are supported by sufficient evidence.

26

B. Admission of Coconspirators’ Declarations Into

Evidence; Sufficiency of the Evidence

Appellants Pini and Bonomo next attack the district

court’s admission of the hearsay declarations of their

coconspirators, which included the conversation at the Pier

House meeting and remarks made during the commission

of the actual burglary, claiming that there was insufficient

independent evidence of their participation in the conspir-

acy to allow these statements to go to the jury and con-

tending that the trial judge gave the jury a fatally flawed

instruction on the admissibility of coconspirators’ decla-

rations into evidence.

The challenge to the sufficiency of the independent evi-

dence is without merit. The Government presented exten-

sive evidence, independent of the coconspirators’ declara-

tions, to connect both Bonomo and Pini to the conspiracy.

According to Roy Morrell’s testimony, both men attended

the Thursday night meeting at the Pier House, at which

Van Zandt described the burglary plans and outlined each

participant’s role. Morrell also placed the two at the

Audubon House on the night of the theft. In addition,

he related that Bonomo, after walking away from Audu-

bon House, told him, ‘‘I’ve done my job, now the others

will have to do theirs.’’ Furthermore, Morrell recalled

that Bonomo, who had departed the scene after perform-

ing his designated task, drove up on a moped later and

asked him, ‘‘What’s going ont’’™ Finally, Morrell tes-

‘* These two statements are ihdependent, nonhearsay evidence

admissible to establish Bonomo’s connection to the conspiracy,

since each remark qualifies as an admission by a party-opponent

under Federal Rule of Evidence 801(d)(2), which ineludes

among ‘‘[s]tatements which are not hearsay’’ a ‘“‘statement .. .

offered against a party ... [that] is . . . his own statement, in

either his individual or a representative capacity.’’ Bonomo con-

cedes on appeal that Morrell’s testimony regarding these remarks

constitutes independent evidence of his connection to the conspi-

racy.

27

tified that he saw Pini take a crowbar from the back seat

of the lookout automobile and walk toward the Audubon

House. Morrell saw Pini come back to the car, heard him

explain that the crowbar was too large for its intended

purpose and say that a screwdriver was needed, saw

him drive off with Van Zandt and watched him return

shortly thereafter and head back for the building. The

foregoing constitutes ample independent evidence connect-

ing both Pini and Bonomo to the conspiracy. Therefore,

the lower court committed no error in allowing the jury

to consider the declarations of their coconspirators.

1. The District Court’s Instructions

Nevertheless, appellants contend that the district judge

violated the mandate of United States v. Apollo, 5 Cir.,

1973, 476 F.2d 156, with his instruction to the jury re-

garding the admissibility of those declarations. Under

Apollo, ‘‘in a conspiracy case in which extrajudicial state-

ments of alleged co-conspirators are proffered,’’ the trial

judge must ‘‘give a cautionary instruction on the limited

uses of hearsay testimony, explaining clearly to the jury

the requirement that the conspiracy itself and each de-

fendant’s participation in it must be established by in-

dependent non-hearsay evidence which must be given either

prior to the introduction of any evidence or immediately

upon the first instance of such hearsay testimony.’’ Jd.

at 163. During a break in Morrell’s testimony, before the

Government’s first introduction of any declarations by al-

leged coconspirators, the judge delivered such an instruc-

1S Like the statements attributed to Bonomo, see note 14 supra,

Pini’s alleged remarks as to the need for a new burglary tool

qualify as independent, nonhearsay evidence connecting him to

the conspiracy. See Fed.R.Evid. 801(d)(2)(A). Pini also con-

cedes on appeal that Morrell’s testimony regarding these remarks

constitutes independent evidence of his connection to the conspiracy.

28

tion and he repeated a similar charge at the end of the

trial. However, Pini and Bonomo argue that the judge

committed reversible error by failing explicitly to inform

the jurors that the existence of the conspiracy and the in-

volvement of each defendant had to be established by in-

dependent evidence before they could permissibly consider

the statements of coconspirators.

Because neither appellant raised any objection at

trial to these instructions, as required by Fed.R.Crim.P.

30, on appeal it is not enough that the challenged instruce-

tions are erroneous—we must look instead for plain error.

United States v. Brasseaux, 5 Cir., 1975, 509 F.2d 157,

161, United States v. Smith, 5 Cir., 1974, 502 F.2d 1250,

1256, n.9. ‘‘The essential question’’ in deciding a claim

of plain error related to jury instructions ‘‘is whether

this contested part of the charge is so erroneous that when

considered in the totality of the charge as a whole and

the evidence presented against each appellant, the error

is so great as to result in the likelihood of a grave mis-

carriage of justice.’”’ United States v. Smith, 5 Cir., 1974,

502 F.2d, supra at 1256. Here, after thoroughly consid-

ering ‘‘the context of the entire charge,’’ United States

v. Brasseaux, supra, 509 F.2d at 162, we find no probab-

ility of great injustice. Moreover, as this court observed

in United States v. Baldarrama, 5 Cir., 1978, 566 F.2d 560,

‘‘[t]he reason for the insistence on cautionary instruc-

tions at the time of admission is the fear that without

such instructions the hearsay declarations will bootstrap

proof of the existence of the conspiracy when independ-

ent evidence of the conspiracy is the condition of the use

of the declarations at trial. There is no plain error or any

possibility of prejudice from such bootstrapping [where]

.. there was sufficient independent evidence of conspiracy.’’

Id. at 570.

29

C. The Lower Court’s Refusal to Give

a Requested Instruction

During the charge conference, Bonomo’s lawyer asked

the trial judge to instruct the jury that ‘‘if a jury

finds that any of the defendants participated in one act

only, the breaking and entering, if . . . that was all the

part they played in it, the jury must find them not guilty.’’

Counsel renewed his request after the jury retired to de-

liberate, seeking an instruction that ‘‘if the jury finds

that the part B»nomo played was merely to rob or burg-

larize the Audubon House, that, in and of itself . . has

no bearing in the case unless the Government proves be-

yond a reasonable doubt the defendants conspired and

planned . . . that these books were to be taken across the

state line.’’ On both occasions, the district judge refused

to deliver the requested instruction; Pini and Bonomo

now urge that he thereby committed reversible error.

The jury charge proposed by Bonomo’s attorney misstated

the law with regard to both the substantive crime and the

conspiracy offense. Since a party is not entitled to a

jury instruction ‘‘contain[ing] an erroneous statement of

law,’’ United States v. Deaton, 5 Cir., 1972, 468 F.2d 541,

545, the lower court committed no error in declining to

give the requested charge.

D. Impeachment of a Codefendant

Relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240,

49 L.Ed.2d 91 (1976), United States v. Hale, 422 U.S. 171,

95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) and similar decisions,

appellants Pini and Bonomo contend that the lower court

erred in allowing the Government to impeach codefendant

Jones by referring to his prior silence regarding his al-

leged involvement in the theft. In his direct testimony,

Jones denied any participation in the conspiracy or ac-

tual burglary and claimed never to have seen either Bono-

mo or Pini before the trial began. On cross-examination,

—

30

the Government asked Jones, ‘‘Why did you wait until

now to make this statement?’’ and ‘‘Why didn’t you go

to the police or the FBI or to the United States Attorney?’’

As the district judge recognized, such questions would

be improper if aimed at revealing a defendant’s prior

invocation of his constitutional right to silence."* How-

ever, in this case Jones’ ‘‘silence was in no way at

issue.’’ United States v. Mireles, 5 Cir., 1978, 570 F.2d

1287, 1293. According to the later testimony of an FBI

agent, during the investigation of the theft, before his own

arrest, Jones had made photographic identifications of

several suspected participants, including Bonomo and

Pini. Thus, ‘‘the prosecutor’s questions . . . were not

an impeachment by silence, as in Doyle, but merely’’ the

beginnings of ‘‘an effort to impeach by prior statements

that were inconsistent with defendant’s testimony at

trial.’? United States v. Mireles, supra, 570 F.2d at 1293;

United States v. Berdick, 5 Cir., 1977, 555 F.2d 1329, 1330-

31, cert. denied, 434 U.S. 1010, 98 S.Ct. 721, 54 L.Ed.2d

753 (1978).

E. The Trial Judge’s Allegedly Prejudicial Remarks

Pini and Bonomo further assert that the district judge,

through a series of prejudicial comments during the

proceedings below, denied appellants their right to a

fair trial. The judge made his first allegedly damag-

ing remark as the jury was being empanelled. He asked

the jurors whether ‘‘any of you or any members of your

family ... [have] been the victim of a crime,’’ and upon

*® When Jones’ attorney objected to this line of questioning,

the judge explained at a sidebar conference that ‘‘if he was in-

terviewed and given his rights and he refused to talk, it is com-

pletely inadmissible,’’ but that ‘‘[i]f he was interviewed and if

he made contradictory statements at that time, it is perfectly ad-

missible.’’

31

receiving a negative answer responded, ‘‘[y]ou sure are

a bunch of lucky people.’’ We view this statement as

‘‘innocuous’’ and lacking in any likely prejudicial effect.

United States v. Middleton, 5 Cir., 1972, 458 F.2d 482.

Our reading of the transcript convinces us that the judge’s

second allegedly prejudicial comment, suggesting that

defense counsel was ‘‘wasting important time’’ since

‘*[e]verybody knows that the place was robbed; everybody

knows those are the prints that were taken from the

place,’’ ‘‘was made out of the hearing of the jury,’’ and

‘therefore could not have prejudiced appellants’ case.

United States v. King, 5 Cir., 1976, 531 F.2d 505, 509,

cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327.

Pini and Bonomo contend, however, that the judge’s most

harmful remark came during the Government’s rebuttal

argument to the jury. The prosecutor urged the jurors to

‘‘ask yourselves why the defendants Bonomo and Pini...

came all the way down from Boston to perform just a

break-in in Key West, Florida. They could have done it

in Boston.’’ When attorneys for several codefendants ob-

jected, the district judge suggested that ‘‘I don’t think

counsel means they could have broken into the Audubon

House in Boston, but I think the tenor of his argument

is that these gentlemen, from the evidence, possessed

enough skill and knowledge to have been able to break

into almost any place anywhere they wanted to,’’ and

‘‘Tw]ith that amplification,’’ overruled the objections. The

transcript clearly shows that the trial judge was not ex-

pressing his own opinion regarding the evidence or ap-

pellants’ criminal skills. Rather, he was attempting to

clarify for the jury the Government’s view of the evi-

dence. It is not error for a judge to try ‘‘to render com-

prehensible’”’ to the jury the arguments of counsel, United

States v. King, supra, 532 F.2d at 509. Moreover, the dis-

32

trict judge cured any potential harm in his remarks by

instructing the jury at trial’s end that they were ‘‘the

sole and exclusive judge of the facts,’’ free to disregard

entirely any intimation of the court’s own opinion as to

those facts. United States v. King, supra, 532 F.2d at 509;

United States v. Middleton, supra, 458 F.2d at 483.

F. The Reference to Pini’s Prior Incarceration

Finally, appellants Pini and Bonomo contend that

the district court committed reversible error in denying

the two motions for mistrial made by Pini’s counsel dur-

ing the testimony of Kester Buchanan. When the Gov-

ernment asked Buchanan whether he had ‘‘any conversa-

tions with Gerald Pini,’’ the witness replied, ‘‘Not at

this time, no sir. I might add that during the series of

this crime or whatever, I never saw Gerald. I met him in

Danbury.’’ At that point Pini’s lawyer objected and

moved for a mistrial; the trial judge overruled the objec-

tion and denied the motion. Later, under cross-examina-

tion, Buchanan testified that he had been ‘‘convicted of

interstate theft of a tractor-trailer and tried and sent to

Danbury, Connecticut.’’? Pini’s attorney then moved again

for a mistrial and the court once more denied the motion.

Appellants now contend that by eliciting these two re-

marks from Buchanan, the Government impermissibly re-

ferred to Pini’s prior felony conviction, creating thereby

‘*the possibility of the jury finding guilt by association.’’

This contention is unpersuasive for several reasons, First,

when Buchanan mentioned having met Pini ‘‘in Danbury,”’

he was answering a series of questions regarding a meet-

ing that he had attended several days after the theft and

being asked whether he was personally acquainted with

the various alleged participants in the crime. Given that

context, we think the Government’s question went to con-

33

versations between Buchanan and Pini during the course

of their involvement in the theft and that Buchanan’s ref-

erence to Danbury came on his own initiative, as an after-

thought. Second, the Govenment did not bring out the

fact of Buchanan’s own felony conviction and subsequent

incarceration in Danbury federal prison, that information

was elicited by codefendant Jones’ counsel on cross-ex-

amination. Finally, a significant amount of time elapsed

between Buchanan’s remarks, making it unlikely that the

jury would first connect the two isolated statements and

then draw adverse conclusions regarding Pini’s guilt in

the instant case. Accordingly, we reject this final asser-

tion of error and affirm the convictions of Bonomo and

Pini on both counts.

Ill. Aprettant FRANKLIN

After a thorough review of the record, we find the evi-

dence insufficient to sustain the convictions of Gordon

Franklin on either the substantive charge or the conspir-

acy offense.

Morrell testified that on the morning after the

burglary, at Van Zandt’s behest he drove to the ware-

house where the stolen prints were stored and asked

Franklin ‘‘if everything was okay’’; Morrell reported that

Franklin simply replied ‘‘yes.’’ According to Buchanan’s

testimony, on the Monday following the theft Franklin

helped load the folios, wrapped in green plastic, into the

trunk of Buchanan’s car. Considering this evidence and

17Qn appeal, the Government also urges that Franklin was

implicated by Morrell’s testimony to the effect that the proceeds

from any sale of the folios would be divided seven ways. The

Government includes Franklin as one of the seven who would

share. However, Morrell did not list Franklin among those whom

he understood would receive a portion of the profits. Instead,

Morrell identified himself, Van Zandt, Pini, Bonomo, Buchanan,

Collaro and Jones as those he expected to receive a share,

34

‘tall reasonable inferences flowing therefrom in the light

most favorable to the government,’’ we do not believe that

‘‘a reasonably-minded jury could accept the relevant evi-

dence as adequate and sufficient to support the conclusion

of the defendant’s guilt beyond a reasonable doubt.’’

United States v. Warner, supra, 441 F.2d at 821. Neither

Morrell’s query nor Franklin’s response on the morning

after the theft proves knowledge on Franklin’s part that

the burglary had occurred or that the warehouse where

he worked was harboring the stolen prints. Similarly,

though Buchanan testified that Franklin helped load the

stolen art into the trunk of Buchanan’s automobile, he

also stated that the folios were wrapped in such a way

that one could not know what they were without being

told, and said that Franklin never indicated being aware

of the contents of the packages. The Government pre-

sented no evidence that Franklin wrapped the folios, was

told what the packages contained, or otherwise knew that

the contents were stolen. Thus, it failed to establish with

respect to Franklin the essential elements of a substan-

tive violation of section 2314.

Further, according to Morrell, Franklin did not attend

the meeting at the Pier House and his name and alleged

role in the conspiracy were not discussed on that occasion.

The Government describes numerous inferences that it

contends the jury might reasonably have drawn to decide

‘‘from the competent evidence, the detailed nature of the

enterprise and the overall conduct of the crime that Van

Zandt had pre-arranged with Franklin to receive the books

from Jones and store them until Buchanan picked them

up two days later.’’ However, ‘‘[c]harges of conspiracy

are not to be made out’’ merely by reliance on such an

extended chain of inferences. Causey v. United States, 5

Cir., 1965, 352 F.2d 203, 207. We conclude that ‘‘a reason-

inl ls hbk ales

ans 0 OO arma

le AAA Sa ene

Dd fis ase aera ne

35

ably-minded jury’’ could not have accepted the evidence

presented as sufficient to connect Franklin to the conspir-

acy. United States v. Warner, supra, 441 F.2d at 825.

Therefore, we reverse the convictions of Gordon Frank-

lin under both counts of the indictment and order the

charges against him dismissed.

AFFIRMED as to defendants Pini and Bonomo.

REVERSED as to defendant Franklin.

36

Appendix B.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5056

D. C. Docket No. CR-77-305-WM

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

GORDON W. FRANKLIN, FREDERICK J. BONOMO,

GERALD A. PINI,

DrFENDANTS-APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Before JONES, AINSWORTH and HILL, Circuit Judges.

Judgment

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the convictions

of the said District Court in this cause be, and the same

are hereby, affirmed as to defendants Pini and Bonomo;

the conviction as to defendant Franklin is reversed.

December 20, 1978

Issued As Mandate:

nee, eT ae

Aine a =

37

Appendix C.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5056

UNITED STATES OF AMERICA,

PLaINtTIFF-APPELLEE,

v.

GORDON W. FRANKLIN, FREDERICK J. BONOMO

anp GERALD A. PINI,

DEFENDANTS-APPELLANTS.

APPEALS FROM THE UNITED DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

On Petition for Rehearing

(January 22, 1979)

Before JONES, AINSWORTH and HILL, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

/3/

United States Circuit Judge