Petition — Garber v. United States

Suprene Sout UR

80-6380 Floeeéeo

FOO Scene QCT 17 1980

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MARVIN GARBER, Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joseph N. Bongiovanni, III

Joseph W. Bullen, III

Suite 500

1411 Walnut Street

Philadelphia, Pa. 19102

(215) 563-3527

S. Jay Sklar

Suite 1229 Public Ledger Building

6th & Chestnut Streets

Philadelphia, Pa. 19106

(215) 627-0307

Counsel for Petitioner

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050

QUESTIONS PRESENTED FOR REVIEW

1. Whether the jurisdictional threshold required by

18 U.S.C. §659, Interstate or Foreign Shipments, —

that the theft be of goods moving in or as a part of an

interstate or foreign shipment was satisfied where the

goods in question had been released from Customs con-

trol and had remained in the warehouse at the original

point of delivery because it was not economically feasible

to deliver the goods to the original destination point, and

the purchaser of the goods was prepared to leave the

goods in the warehouse for an indefinite time with no

specific plan for its ultimate disposition.

2. Should not this court impose standards of admis-

sibility of video tape re-enactments of the alleged crime,

weighing its accuracy, rele ance, and probative value

considering the tremendous visual impact of this

graphic medium?

3. Whether a warrantless search was valid where

purported consent was obtained from a police officer by

the Internal Affairs Investigative Unit of the Philadel-

phia Police Department without informing the police of-

ficer of the nature of the investigation, and where the po-

lice officer had an obligation pursuant to the Philadel-

phia City Charter to cooperate with the investigative unit

or face possible dismissal from the police force.

4. Can a search warrant be obtained for the search

of a man’s home when a thorough and exhaustive

search pursuant to a valid search warrant had taken

place the day before, and no additional probable cause

was given to the issuing magistrate for the need for a

second search, and he was not informed as to the lack of

success of the first search. In this context, does the fail-

ure to inform the issuing magistrate of the prior search

and its results invalidate the second search warrant?

* Other Parties-Petitioner Marvin Garber was a co-defendant

with Nicholas Denucci. The Judgement and Opinion of the United

States Court of Appeals for the Third Circuit entered July 25, 1980

likewise affirmed Mr. Denucci’s conviction on the same counts as

Mr. Garber.

1)

2)

3)

4)

TABLE OF CONTENTS

The Jurisdictional Threshold Required Be-

fore 18 U.S.C. §659, Theft of Interstate or

Foreign Shipments, Can Be Applied was Ex-

tended to a Point Beyond which Congress did

ets cals y a daha 6

The Court Should Impose Standards of Ad-

missibility of Video Tape Re-enactments of

the Alleged Crime, Weighing its Accuracy,

Relevance, and Probative Value Considering

the Tremendous Visual Impact of this

OS eee eee ee

Permission to Conduct a Warrantless Search

is Invalid if such Permission was Obtained

from a Police Officer who was Obligated by

the Citv Charter to Cooperate with his Inves-

tigating Superior Officers or Face Loss of his

Job, and the Police Officer was not Informed

he was the Subject of a Possible State or Fed-

eral Criminal Proceeding ...............

A Search Warrant is Invalid if Obtained for

the Search of a Man’s Home when a Thor-

ough and Exhaustive Search Pursuant to a

Valid Search Warrant had Taken Place the

Day Before. and No Additional Probable

Cause was Given to the Issuing Magistrate

for the Need for a Second Search. and he was

i

Page

Citation to Opinions Below .................++. ]

NE i ag ai we dp One ew one ]

EMME OTIOCOG fw lk ke ee ee wt 2

NE ot ee eee cen ee eee eee 4

Reason for Granting the Writ ................. 3

13

TABLE OF CONTENTS—(Continued )

Page

Not Informed as to the Lack of Success of the

First Search. In this Context, does the Fail-

ure to Inform the Issuing Magistrate of the

Prior Search and its Results Invalidate the

Second Search Warrant? ............... 16

SNE Fe ephera nora a wiv ee ak se a ee 19

EE SUWUE eC Ui ak oe Notes be 19

APPENDIX

Opinion and Judgment of the Court of Appeals .. A-1

TABLE OF AUTHORITIES

Cases:

Collins v. B. F. Goodrich Co., 558 F.2d 908 (8th Cir.

SORT AERA OIAICRS SPSS ey cena Re ton et a ge a a a 1]

Cox v. Louisiana, 379, U.S. 536 (1965) ........ 10

Crown Cork & Seal Co. v. Morton Pharmaceutical,

Inc., 417.F.2a 921 (Gth Cir. 1950) ......... 11

DeCamp v. United States, 10 F.2d 984 (D.C. Cir.,

tk Niggrtlec CS Reread ih ieee, Aas ae a 11

Draper v. United States, 358 U.S. 307 (1959) ... 18

Glick v. White Motor Co., 458 F.2d 1287 (3rd Cir.

UU ere ea ee a yrely ine wl week ak ae 11

Kaminski v. Board of Wayne County Commission-

ers, 121 N.W.2d 830 Michigan (1963) ...... 12

Pacheo v. United States, 367 F.2d 878 (10th Cir.

RT PD NEN Nn ee eg ee hE Ny So acs ar aw 5 11

People v. Dabb, 32 Cal.2d 491, 197 P.2d 1(1948) 12

People v. Eisenberg, 22 N.Y.2d 99, 238 N.E.2d 719

SU es ec coer erate eee ene oe eis 10

TABLE OF AUTHORITIES—(Continued )

Page

Rugendorf v. United States, 367 U.S. 528 (1964) 18

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . 15

Smith v. United States, 321 F.2d 427 (9th Cir.

UN at Sra ni Cah ee he meee ae 12

Spinelli v. United States, 393 U.S. 410 (1969) ... 18

United States v. Botaro, 589 F.2d 430 (9th Cir.

RA SE Te eR eh. Ge Dr ener So. ana 18

United States v. Brown, 557 F.2d 541 (6th Cir

gL try Pepe ee Joe hy «SAN em a 12

United States v. Maddox, 394 F.2d 296 (4th Cir

| SR EPR ee oP ake a TN Pee 5 eas age 6-7

United States v. Molt, 589 F.2d 296 (3rd Cir. 1978) 15

United States v. Scott, 590 F.2d 531 (3rd Cir. 1979) 15

United States , ex rel Harris v. Hendrix, 423 F.2d

SO I RUPE oo hee vb co vee eewkens 16

Wong Sun v. United States, 371 U.S. 471 (1968) 16

Statutes and Ordinances:

MRS MEM ere ea hn Wie ka ae eas 2

DE, SP ig ec A it a ee

i I ag a eked. week ee See ee a ihe

SR Eb ae eer ar eee aa ]

Philadelphia City Charter §10-110 ............. 3

Other Authorities:

WEINSTEIN — EVIDENCE $§1001(2), (03) .... 10

WIGMORE — EVIDENCE §798A, p203 ....... 1]

ili

l

a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MARVIN GARBER, Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CITATIONS TO OPINIONS BELOW

The memorandum opinion of the District Court for

the Eastern District of Pennsylvania filed July 20, 1978

denying defendants Motion for a New Trial, Motion for

Arrest of Judgment is unreported.

The judgment and opinion of the United States

Court of Appeals for the 3rd Circuit entered July 25,

1980 affirming Petitioner Marvin Garber’s conviction of

violating 18 U.S.C. 371 and 18 U.S.C. 659 is as of yet

unreported and is printed in Appendix “A”.

JURISDICTION

The judgment of the United States Court of Appeals

for the 3rd Circuit was entered on July 25, 1980. A

timely Petition for rehearing was filed, said Petition was

denied on August 18, 1980.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

2

STATUTES & ORDINANCES

18 U.S.C. 2(a) Principals

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 Conspiracy to commit offense or to de-

fraud United States

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.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.

18 U.S.C. 659 Interstate or foreign shipments by car-

rier

Whoever embezzles, steals, or unlawfully takes,

carries away, or conceals, or by fraud or deception ob-

tains from any pipeline system, railroad car, wagon,

motortruck, or other vehicle, or from any tank or storage

facility, station, station house, platform or depot or from

any steamboat, vessel, or wharf, or from any aircraft, air

terminal, airport, aircraft terminal or air navigation fa-

cility with intent to convert to his own use any goods or

chattels moving as or which are a part of or which con-

stitute an interstate or foreign shipment of freight, ex-

press, or other property; or. . .

Shall in each case be fined not more than $5,000 or

imprisoned not more than ten years, or both; but if the

amount or value of such money, baggage, goods or chat-

tels does not exceed $100, he shall be fined not more

than $1,000 or imprisoned not more than one year, or

both.

3

Philadelphia City Charter Section 10-110 Refusal to

Testify

If any officer or employee of the City shall wilfully

refuse or fail to appear before any court, or before the

Council or any committee thereof, or before any officer,

department, board, commission or body authorized to

conduct any hearing or inquiry, or having appeared,

shall refuse to testify or to answer any question relating

to the affairs or government of the City or the conduct of

any City officer or employee on the ground that his testi-

mony or answers would tend to incriminate him, or shall

refuse to waive immunity from prosecution on account

of any matter about which he may be asked to testify be-

fore such court or at any such hearing or inquiry, he

shall forfeit his office or position, and shall not be eligible

thereafter for appointment to any position in the City

service.

STATEMENT OF THE CASE

Petitioner, Marvin Garber, was charged with

offenses in four counts of Eastern District of Pennsylva-

nia Criminal Indictment No. 78-149. Count I charged

that on or about March 26, 1978 Garber did steal eight

(8) copper cathodes over $100.00 in value from North-

ern Metal Company, which were moving as a part of a

foreign and interstate shipment from Antofagosta, Chile

to New York and other states. The theft being in viola-

tion of 18 U.S.C. §659. Count IV charged Garber with

conspiracy to violate the substantive theft from inter-

state commerce and theft from Customs custody acts

(18 U.S.C. §659 and 19 U.S.C. §549) in violation of 18

U.S.C. §371. Counts II and III of the indictment

charged violation of 18 U.S.C. §659, possession of the

stolen goods recited in Count | and violation of 19 U.S.C.

§549, removing the copper cathodes from control of

Customs.

On August 11, 1978 the jury returned verdicts of

guilty on all four Counts as to Mr. Garber and his co-de-

fendant, Nicholas Denucci. Motions for Arrest of Judg-

ment, Acquittal and New Trial were filed. They were de-

nied on July 20, 1979. A timely appeal was taken to the

United States Court of Appeals for the Third Circuit and

on August 15, 1980 the Circuit Court dismissed the ap-

peal as to Counts I and IV and reversed the convictions

as to Counts II and III. A Petition for Rehearing was filed

and was subsequently denied. This Petition for Certio-

rari follows.

5

REASONS FOR GRANTING THE WRIT

i.

The jurisdictional threshold required before 18 U.S.C.

$659, theft of interstate or foreign shipments, can be

applied was extended to a point beyond which Con-

gress did not intend.

The copper cathodes in question here were manu-

factured in Chile and shipped to Philadelphia. The ship-

ment was originally intended for Bridgeport, Connecti-

cut but because of labor problems, they were diverted to

Philadelphia. The Customs duty applicable to these

goods was paid prior to the theft, and the merchandise

was released from Customs control. A bond for immedi-

ate release of the merchandise was posted. The cath-

odes, however, remained in a warehouse within the pier

itself where they had originally been delivered. Due to

the inability to forward the goods to Bridgeport, Con-

necticut because the freight costs in reshipping would

be prohibitive, Cerro, the purchaser, apparently in-

tended to keep the merchandise indefinitely stored in

Philadelphia until they were disposed of. Cerro had some

customers in Pennsylvania, but there were also many

customers outside of Pennsylvania. The warehouse

space where the goods were stored was permanently

rented by Cerro within the pier, and was usually used as

a warehouse for goods that were in transit to the ulti-

mate consumer. As to these goods, there was no ultimate

customer at the time they were stored on the pier in the

warehouse.

The sole jurisdictional basis for the institution of

federal charges involving the merchandise is that the

merchandise in question be interstate or international in

nature at the time of the theft. The various precedents

available to determine the international or interstate na-

ture of the merchandise give no hard and fast rules to be

applied to any particular situation, but rather as the

6

Court said in U.S. v. Maddox, 394 F.2d 296 (4th Cir.

1968) “The answer in any particular case must depend

on a factual assessment,” of many factors to determine if

the cargo had ceased to be in interstate or foreign com-

merce. It was the government’s contention that federal

jurisdiction attached to this merchandise because Phila-

delphia was only a temporary stop rather than the final

destination of the goods. However, we not only have a

situation here where Philadelphia was a temporary stop,

but there was no intention to deliver the merchandise

from Philadelphia to any particular place. It was the in-

tention of Cerro to some time in the future, if a buyer

could be found, who happened to be outside Philadel-

phia, deliver the goods there. This was an open-ended

desire on their part and if the government’s position is

valid, the goods could still be considered as part of an’in-

ternational or interstate shipment for ten or fifteen years

until they could be sold. The Court further held in

Maddox, supra, p 299-300 that “the deposit of cargo in a

warehouse may, under certain circumstances, consti-

tute a coming to rest marking the termination of an in-

terstate or foreign shipment. At other times, however,

the stop off at the warehouse may only be a pause of any

uncompleted journey. Standing alone, the removal of

goods to a warehouse is not conclusive, nor is the con-

signees power to divert the goods from intended inter-

state commerce.”

Thus, one must view what the halt in the flow of the

merchandise in the warehouse for a period of 28 days at

the time of the theft, and for seemingly an indefinite pe-

riod in the future, had on their status insofar as federal

jurisdiction is concerned. The Circuit Court based its

conclusion that federal jurisdiction attached because the

copper cathodes did not reach their final destination,

and thus did not lose their foreign commerce character.

What the court neglected to address was the fact that

there was no destination to be reached, there was no in-

7

tention of removing the goods until some future date to a

party unknown, at a time unknown, to a place unknown.

Thus, we are led to the situation where the court has

found the federal jurisdiction of an international charac-

ter when goods that are in the United States have no

known destination in the United States with no knowl-

edge as to when they will leave and where they are go-

ing. For the court to hold that the goods have not

reached a final resting place, is not in keeping with the

intent of Congress in enacting 18 U.S.C. §659. While it

is the status of the goods at the time of theft that is con-

trolling, the copper cathodes were still in the warehouse

at the time of trial. This clearly shows Cerro’s intent as to

what was to happen to these goods. The intent should

stretch back to when the goods were delivered to the

warehouse.

The Circuit Court sets forth the proposition that

when goods are stored for an extensive period of time

with no clear plan or idea as to final destination, they are

deemed not to have come to their final resting place.

This may be the case where the goods are held up due to

certain known factors with a probable destination to be

reached at a particular period of time. In our case, how-

ever, no destination was known when the goods arrived,

when they were stolen, when the matter came to trial, or

at any time. There was no continuing stream of interna-

tional commerce in regard to these goods. The Maddox,

Supra, case dealt with sugar that was stolen while it was

being held pending filling of orders previously given. It

is abundantly clear that Cerro had warehouse space per-

manently rented within the pier; that there was in fact

no ultimate customer for copper cathodes, that it could

not be shipped over land to Bridgeport, Connecticut nor

to any place outside the Commonwealth unless cut up

into various parts which Cerro was unwilling to do, that

Cerro was uncertain as to the final disposition, that the

goods r- mained at the location for a long period of time,

8

that complete control was made to Cerro who exercised

full control and dominion over them, there was no prop-

er base for federal jurisdiction, and it was error for the

Circuit Court to so conclude. The error is the court's fail-

ure to realize that the fact that the merchandise re-

mained in situ at the time of trial, a year later,

strengthened petitioner’s contention that the intent of

Cerro as to the ultimate disposition of the merchandise

was still vague and undefined, clearly less than Con-

gress intended for federal jurisdiction.

2.

The court should impose standards of admissibility of

video tape re-enactments of the alleged crime, weigh-

ing its accuracy, relevance, and probative value con-

sidering the tremendous visual impact of this graphic

medium.

The government in its case in chief, introduced into

evidence a brief video tape reenactment of the crime and

had it shown to the jury. This reenactment shows a

Philadelphia police car. Admittedly, it is not one of the

police cars alleged to have been used by the defendants

in the stant crime. The film depicted two individuals

lifting a copper cathode and placing it in the trunk of the

police vehicle. The government justified the use of this

piece of evidence by claiming that it tended to prove that

it was in fact possible for the copper cathodes to hav»

been removed by the defendants in their police vehicles

The defense objected to the introduction of this film for a

variety of diverse reasons.

First of all, in order to fit the copper cathode in the

trunk of the test vehicle it was necessary for the govern-

ment to build a frame platform upon which the cathode

was slid into the trunk. In addition, the area around the

piles of cathodes as depicted in the government film was

remarkably different from the state of the area on the

i)

night of the alleged theft. The difference consists in the

fact that the area had been cleaned up appreciably by

pier personnel prior to the filming of the government ex-

hibit. The government then had easy access to the cop-

per cathodes, and the distance which had to be walked

was considerably shorter. In addition, of course, the gov-

ernment test was conducted during daylight hours

which would also facilitate the movement of the copper

cathode since the night lighting was poor. Thus, the first

defense objection goes to the fact that the reenactment

depicted hy the government differs markedly from the

circumstances under which the theft is alleged to have

occurred.

Two other factual differences in the conditions un-

der which the reenactment was depicted are significant.

While the same police vehicle was not utilized, the gov-

ernment sought to minimize this difficulty by claiming

that the car in question, while of a different year, had

roughly similar trunk demensions. This did not satisfac-

torily explain the difference since the defendants by

Court Order attempted to conduct a reenactment using

the same model year car as was allegedly used in the

theft. Some still photographs of that reenactment were

displayed by the defense, and the policemen who con-

ducted the experiment testified that they were unable to

fit the cathode into the trunk. A slight variation in model

number may have resulted in the different results in the

government test. In addition, the defense presented evi-

dence that clearly established that the car aliegedly used

in the theft was an old car and the shocks of that auto-

mobile were such that it could not easily withstand the

additional weight of the cathode in the trunk. Thus. it is

clear that the reenactment differed markedly from the

circumstances under which the alleged theft occurred.

The second defense objection went to the emphasis

that the jury could reasonably be expected to place on

the video reenactment. The nature of the exhibit was

striking and its persuasive appeal stemming from the

10

nature of the art medium used was greatly prejudicial to

the defendants.

Lastly, the defense notes that the government pre-

sented other types of evidence which tended to substan-

tiate their contention that it might in fact be possible to

fit the cathodes into the trunk of a police vehicle. There-

fore, the test had no independent significance, was un-

necessary in developing the government’s case, and was

vreatly prejudicial to the defendants. When the govern-

ment announced they intended to utilize this reenact-

ment, the defense asked permission of the Court to have

the jury visit the scene of the alleged crime, supervise

the accuracy of the experiment, and have the same

vehicle as was allegedly utilized by the defendants to see

if it was in fact possible to reenact the crime. The Court

refused to allow such an experiment claiming that it

would confuse the jury and was unnecessary in view of

the evidence presented by both the government and the

defense.

The first use of films in criminal cases appears in

cases when there were film clippings taken of the actual

crime itself. Thus, in two well known criminal cases,

People v. Eisenberg, 22 N.Y.2d 99, 238 N.E.2d 719

(1968), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct.

453, 13 L.Ed. 2d 471 (1965), film clips of the actual

event in question were admitted into evidence by the

trial Court and the use of such films was approved by the

Appellate Courts, including the U.S. Supreme Court.

Courts have been more reluctant to justify use of

films in reenactment of crimes. Such reenactments have

no more probative value than a statement of a propo-

nent’s theory of the case. They constitute a dramatiza-

tion of the statement recorded on film. Weinstein’s Evi-

dence, §1001(2)(03), Wigmore makes a similar

comment: “Theoretically, of course, the moving picture

can never be assumed to represent the actual occur-

rence; what is seen in itis merely what certain withesses

say Was the thing that happened . . . and yet any mov-

1]

ing is apt to . . . impress the jury with a convincing

and partiality of nature itself. In view of these inherent

risks of misleading, the trial Judge might well deem a

picture unsafe and inadmissible when the introductory

evidence has not convinced him that the risk is negligi-

ble.” Wigmore, Evidence §798A at page 203 (Third Edi-

tion 1940).

Most in point is the case of DeCamp v. U.S., 10 F.2d

984 (D.C. Cir., 1926). In that case the Judge barred the

introduction of film testimony since such evidence was

wholly unnecessary in view of other evidence which had

been already presented by the parties. The Court on

page 120 says: “The admission of the motion pictures

would have amounted to nothing more than a spectacu-

lar display of the situation based upon facts in evidence.”

An examination of the case law clearly reveals sub-

stantial support for each of the objections raised by the

defense. Thus, in Collins v. B.F. Goodrich Co., 558

Fed.2d 908 (8th Circ. 1977), the Court said on page 910

that: “Evidence of experimental test is not admissable

unless the foundation showing is made that the tests

were conducted under conditions substantially similar to

actual conditions.” Similarly, in Crown Cork & Seal Co.

v. Morton Pharmaceutical Inc., 417 F.2d 921 (6th Cir.

1959), and Glick v. White Motor Co., 458 F.2d 1287 (3rd

Cir. 1972), the Court used the same language in insist-

ing that the experiment must be “identical with or simi-

lar to the condition of the transaction in litigation.”

In Pacheo v. U.S., 367 F.2d ®¢c (10th Cir. 1966),

the Court said the party offering evidence of an out-of-

Court experiment must lay a proper foundation by show-

ing a similarity of circumstances and conditions. The

Court goes on to caution that “evidence of this kind

should be received with caution and only be admitted

when it is obvious to the Court from the nature of the

experiment the jury would be enlightened rather than

confused. In many circumstances a slight change in the

12

conditions under which the experiment is made will so

distort the result as to wholly destroy its value as evi-

dence and make it harmful rather than helpful.” In

Smith v. U.S., 321 F.2d 427 (9th Cir. 1963), the trial

Court refused to allow testimony as to an out-of-Court

experiment conducted by the defense, but did allow a

similar experiment to be conducted in the courtroom in

the presence of the jury under the supervision of the

Court. The Court felt that with those safeguards the ex-

periment could safely be viewed by the jury.

In U.S. v. Brown, 557 F.2d 541 (6th Cir. 1977), the

Court noted: “Expert testimony admitted without proper

foundation may tend to confuse or mislead the trier of

facts and thus defeat the defendant’s right to a fair trial.”

Thus, in Kaminski v. Board of Wayne County Road

Commissioners, 121 N.W.2d 830 (Michigan 1963), the

Court condemned a video reenactment of the accident

since some of the alleged facts of the accident were not

depicted in the reconstruction.

It is clear in the instant case that the significant

differences between the circumstances under which the

crime was alleged to have occurred and the circum-

stances depicted in the reenactment were more than

“slight variations” and accordingly clearly defeated de-

fendant’s right to a fair trial and confused the jury in

their factfinding role.

In People v. Dabb, 32 Cal. 2d 491 197 P.2d 1 (1948),

the Court was justifiably concerned by the visual impact

of moving films:

“The facts . . . were unduly emphasized by

the introduction of the sound motion pictures, and

that unjustified importance was given to these

incidents by placing them before the jury in such a

compelling manner.” (p.6)

197 P.2d 1,6

13

3.

Permission to conduct a warrantless search is invalid if

such permission was obtained from a police officer

who was obligated by the City Charter to cooperate

with his investigating superior officers or face loss of

his job and the police officer was not informed he was

the subject of a possible state or federal criminal pro-

ceeding.

Prior to Petitioner Garber’s arrest while he was off

duty as a Philadelphia policeman he received a message

from his Captain via his wife telling him to report imme-

diately to his District Commander by direct order of the

Police Commissioner. This summons was made by his

Captain after being told to do so by two police inspectors

who belong to the internal investigation unit of the

Philadelphia Police Department. This unit’s sole func-

tion is to investigate actions of fellow police officers.

They operate under a grant of delegated authority di-

rectly from a Police Commissioner and are not account-

able to other officers who may in fact be their superior

ofticers while they are conducting an official internal af-

fairs investigation. When an officer is summoned to ap-

pear in front of them and they are there by direct order of

the Police Commissioner, the police officer knows that it

is an internal affairs investigation. These investigations

do not necessarily result in the filing of criminal charges

against police officers but can deal with various forms of

administrative actions, fines, demotions, suspensions,

and separation from the force. By direct orders of the Po-

lice Commissioner all officers are required to cooperate

with superior officers who are conducting these internal

affairs investigations. If any officer would refuse to obey

a direct command this is a basis for dismissal on the

grounds of insubordination pursuant to Section 10-108

on the Philadelphia Home Rule Charter. When officer

Garber reported to the District Commander, he found

his Captain, some police inspectors who were detectives

14

and an internal affairs inspector temporarily assigned to

the detective investigation. He was under some form of

restraint as at all times a detective was assigned to moni-

tor and watch him. The directions for him to come and

go were not requests but demands placed upon a junior

officer by a superior. While Garber was informed that he

was being investigated in connection with the possible

theft of copper from the Northern Metals pier he was

never specifically told that this was a possible state or

federal investigation as opposed to an internal disciplin-

ary action by the police force. The presence of the inter-

nal affairs officer would lead him to believe that it was an

internal affairs investigation. While in the presence of

these officers Garber was asked if he would agree to al-

low the police to search his car that he had driven to

work. It was also told to Garber that if he did not agree

the police would get a search warrant. Garber agreed

and gave the keys to the police officers who upon looking

in his trunk found a pair of work gloves which were ex-

amined by the Head of the Philadelphia Police Lab and

found to have traces of copper on them. The gloves at

that point were left in the trunk and the next day a

search warrant was obtained by the police to authorize

the search and seizure of the gloves in question. When

asked why the gloves were not seized upon the first

identification of them it was testified to that there was a

belief that the first search was possibly invalid.

It is Petitioner’s contention that this search was not

consensual in that it was obtained because of an implied

threat to obtain a warrant and the coercion that the

Home Rule Charter provides for failure to cooperate, a

possible dismissal. Furthermore, Garber did not know

that it was anything more than an internal affairs inves-

tigation. The setting was coercive and Garber acted

upon the reasonable misapprehension of fact that he

must in fact cooperate in this investigation. The misap-

prehension was either intentionally or unintentionally

encouraged by the manner in which the police con-

15

ducted their investigation. The coercive nature of this

investigation can be seen further by the fact that the po-

lice themselves thought they had to go out and get a

warrant to validate their previous search. Whenever con-

sent to a search is obtained by threat of obtaining a

search warrant, such consensual searches should be

closely scrutinized. U.S. v. Scott 590 F.2d 531 (3rd Cir..

1979), U.S. v. Molt 589 F.2d 1242 (3rd Cir., 1978).

The manner in which the consent was obtained for

this search requires the greatest degree of scrutiny. In

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and

United States v. Scott, supra, this Court held that

Miranda type warnings prior to an alleged consensual

search need not be given but that the Court in validating

a consensual search should look to the knowledge of the

defendant in the agreeing or not agreeing to the search

as well as the possibly coercive nature of the consent

that was obtained. While Petitioner Garber was a Phila-

delphia police officer in this matter and presumably was

very much aware of his Constitutional rights to refuse to

vive permission to a search, this must be counter-

weighed by the provisions of the City Charter of Phila-

delphia which provide for dismissal if one fails to cooper-

ate with their investigating superior officers. Particularly

important here is the fact that Garber was not aware of

the exact nature of the inquiry and thought it was an in-

ternal police investigation not one fraught with possible

state or federal criminal consequences. The investigat-

ing officers either intentionally or unintentionally en-

couraged Garber to be somewhat in the dark as to the

exact nature of the investigation. Further his “consent”

has to be considered in light of the City Charter provi-

sions which put his job at risk if he fails to cooperate. It

would be too much to ask for Garber to have refused con-

sent to the search then face departmental charges under

the City Charter which would then have to be litigated to

determine their validity particularly as he had no reason

16

to expect possible criminal action resulting from the in-

quiry being made.

Additionally, the police subsequently obtained a

search warrant in an attempt to validate what they vre-

garded as a questionable basis for the consensual

search. If the first search was improper the second

search would fail as fruit of the poison tree. Wong Sun v.

United States, 371 U.S. 471 (1968).

When one looks at all the circumstances of the

“consent” given as required by United States, ex rel

Harris v. Hendrix, 423 F.2d 1096 (3rd Cir., 1970), it is

clear that this was a coercive consent based upon the na-

ture of the investigating officers and what they did and

did not tell Petitioner Garber as to the purpose of the in-

vestigation and the clearly coercive effect of the Phila-

delphia City Charter requiring cooperation with those

police officers who have the power to initiate and follow

through on searches.

4.

A search warrant is invalid if obtained for the search of a

man’s home when a thorough and exhaustive search

pursuant to a valid search warrant had taken place the

day before, and no additional probable cause was

given to the issuing magistrate for the need for a sec-

ond search, and he was not informed as to the lack of

success of the first search. In this context, does the

failure to inform the issuing magistrate of the prior

search and its results invalidate the second search

warrant?

A second suppression error dealt with the physical

search of Garber’s personal residence. Police officers ap-

peared there on March 30, 1978 with an appropriate

search warrant. The warrant indicated that they were

looking for copper cathodes, tools used to cut them, and

clothing with copper residue. They served the first war-

17

rant and made the search of his home. They did not lo-

cate any tools or cathodes, and as the cathodes were ap-

proximately 4’ x 4’ and weighed several hundred

pounds, their presence or absence could be easily de-

tected. At this first search, the police observed several

police uniforms which they examined and did not seize.

On March 31, 1978 the same police officers again went

to an issuing magistrate, obtained a second search war-

rant for defendant’s personal home, repeating verbatim

the representations of the first warrant indicating tools,

copper cathodes, and clothes with copper residue. They

did not indicate on the second warrant that there had

been a first warrant with the same material listed

thereon. When the police appeared with the second war-

rant, Garber was at home and they asked for his police

uniforms which he gave to them. They did not search

the house for copper cathodes or tools, and only asked

for the clothing which they examined in the prior occa-

sion. It was further admitted that the only reason they

went back a second time was to get the uniforms, and

not to look for the copper cathodes or tools. This second

warrant was at least misleading, if not an overt misrepre-

sentation to the issuing magistrate who was led to be-

lieve that the police were looking for copper cathodes

and tools, when in fact they knew they were not there.

The second search warrant suggested to the issuing

magistrate that the police believed that there was even

the remotest possibility that the copper cathodes might

be stored in petitioner Garber’s home. This was not true

as the premises had been searched the day before, and

due to the size and bulk of the copper cathodes, there is

no possibility that they had been passed over in the first

search. Nowhere did the police in seeking the second

warrant indicate to the issuing magistrate that they be-

lieved it would be useful to seize the uniforms even

though a visual examination upon the first search failed

18

to suggest any incriminating value of such evidence.

The issuing magistrate could then have clearly evalu-

ated the real reason and the real motives behind the sec-

ond application, and ruled accordingly. He was denied

this opportunity by the misinformation given to him by

the police officers. The failure to properly inform the

issuing magistrate deprived him of the ability to perform

his independent function and decide whether the uni-

forms had some evidentiary value that would require

their seizure.

The purpose of the affidavit of probable cause is to

present to the issuing magistrate a showing of “probable

cause,” that the facts alleged would allow a person of

reasonable caution to believe that the defendant com-

mitted a crime, and that the evidence of the crime will be

found at the location stated in the warrant, Spinelli v.

United States, 393 U.S. 410 (1969), Draper v. United

States, 358 U.S. 307 (1959). Here we had a search con-

ducted of the premises the day before and revealed the

non-presence of a number of the items served on the

search warrant. It is very doubtful that the issuing mag-

istrate would have found probable cause if he knew that

there had been a previous search. This court has held in

Rugendorf v. United States, 367 U.S. 528 (1964) that

when a search warrant application fails to reveal a prior

search in its results, the second warrant should not be

issued. Of course, any omissions or misstatements done

negligently would only be fatal if they are made with the

intent to deceive the issuing magistrate, United States v.

Botaro, 589 F.2d 430 (9th Cir. 1978). In our case, the

affidavit of probable cause has conspicuous omissions

which amount to positive misstatements of fact. They

are not merely negligent failings to leave out information

or to put in information, but they fail to set forth probable

cause and have deprived the issuing magistrate of the

opportunity to independently evaluate the grounds

claimed.

19

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Third Circuit.

October 16, 1980

Respectfully submitted,

Joseph N. Bongiovanni, III

Joseph W. Bullen, III

Suite 500

1411 Walnut Street

Philadelphia, Pa. 19102

(215) 563-3527

S. Jay Sklar

Suite 1229 Public Ledger Bldg.

6th & Chestnut Streets

Philadelphia, Pa. 19106

(215) 627-0307

Counsel for Petitioner,

Marvin Garber

Certificate of Service

I hereby certify that on this 16th day of October,

three copies of the Petition for Writ of Certiorari were de-

livered by messenger to the Solicitor General, U.S. De-

partment of Justice, Room 5614 Department of Justice

Building, Washington, DC 20530, counsel for respond-

ent. | further certify that parties required to be served

have been served.

JOSEPH N. BONGIOVANNI, III

APPENDIX

A-1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 79-2511

UNITED STATES OF AMERICA

VU,

GARBER, MARVIN, Appellant

(D. C. Crim. No. 78-00149-02)

No. 79-2517

UNITED STATES OF AMERICA

FF

DENUCCI, NICHOLAS, Appellant

(D. C, Crim. No. 78-00149-01)

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued May 22, 1980

Before: ADAMS, VAN DUSEN and HIGGINBOTHAM,

Circuit Judges

(Opinion filed July 25, 1980)

—s

Joseph N. Bongiovanni, III. Esq. (Argued)

Bongiovanni and Reagoso

Philadelphia, Pa.

Attorney for Appellant Garber

A-2

Alfonso Tumini, Esq. (Argued)

Davidson, Aaron & Tumini

Philadelphia, Pa.

Attorney for Appellant Denucci

Luther E. Weaver, III, Esq. (Argued)

Assistant United States Attorney

Philadelphia, Pa.

On the Brief:

Peter F. Vaira,

United States Attorney

Walter S. Batty, Jr.,

Assistant United States Attorney,

Chief, Appellate Section

Lynell N. Staton,

Assistant United States Attorney

Attorneys for Appellee

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

Defendants Marvin Garber and Nicholas Denucci

were charged in a four-count indictment with various

offenses arising out of the theft of copper cathodes from

the Northern Metal Company (Northern Metal) pier in

Philadelphia, Pennsylvania, in March 1978. Count I

charged that Garber and Denucci stole from Northern

Metal’s storage facility eight copper cathodes which

were part of an interstate or foreign shipment of freight

in violation of 18 U.S.C. §659 (1976). Count II charged

that they unlawfully had the same copper cathodes in

their possession in violation of 18 U.S.C. §659 (1976).

Count III charged that they unlawfully removed coppe1

cathodes from customs custody and control in violation

of 18 U.S.C. §549 (1976). Count IV charged that they

conspired with each other to violate §§659 and 549 in

A-3

violation of 18 U.S.C. §371 (1976). After a lengthy trial,

a jury found both Garber and Denucci guilty on ail four

,counts. The district court sentenced each defendant to

concurrent one-year terms of imprisonment on Counts I,

II and III, and to a subsequent five-year term of proba-

tion on Count IV. The defendants were also ordered to

make restitution. Garber and Denucci filed timely ap-

peals, based on several legal claims. After considering

each contention raised by the defendants, we affirm the

§659 conviction of theft from foreign commerce (Count

I), reverse the conviction of receipt and possession of

goods stolen from a foreign shipment (Count II), reverse

the conviction of removal of goods from customs custody

and control (Count III), and affirm the conviction of con-

spiracy (Count IV).

Cerro Sales Corporation (Cerro) represents the

country of Chile in the sale of Chilean copper in the

United States. Each year Cerro sells about 70,000 tons

of Chilean copper to various corporations in the United

States. In 1978 one of Cerro’s long-term contracts re-

quired it to sell 1200 tons of copper cathodes' per month

to Anaconda American Brass Company (Anaconda).

One of the monthly shipments of copper consigned to

Anaconda was enroute from Chile to Bridgeport, Con-

necticut, in February 1978 when the steamship com-

pany carrying the copper experienced labor problems at

several locations, including Bridgeport. Under the ocean

bills of lading, the steamship company had the right to

divert the cargo to other ports. In this instance the

steamship company chose to discharge the cargo in

Philadelphia. Cerro found that the freight costs for ship-

1. Copper cathodes are large sheets, weighing approximately

300 pounds each. To facilitate shipping and handling, 14 sheets are

bound together in a bundle.

A-4

ping the copper from Philadelphia to Connecticut were

prohibitive, making delivery to Bridgeport impracticable.

Cerro was thus forced to try to find other buyers for the

copper. In the interim the copper cathodes remained at

the Northern Metal pier, where the cargo had arrived on

February 22, 1978.

In the fourth week of March 1978, a number of

cathodes disappeared during the night from the ware-

house at Northern Metal’s pier. During that week,

Garber and Denucci, while on duty as Philadelphia po-

lice officers, drove their patrol cars onto the pier on sev-

eral nights and parked next to the area where the copper

was stored. At these times Garber was away from his as-

signed police district. Garber and Denucci always left

the pier at the same time, approximately 20 to 30 min-

utes after they had arrived. Subsequent investigations

revealed that traces of copper were found in the trunks

of both defendants’ patrol cars and on their police uni-

forms.

If.

The defendants first challenge their conviction un-

der §659, asserting that the copper cathodes were not

part of foreign or interstate commerce when they were

stolen. They argue that the foreign shipment had come

to an end when the cargo was unloaded in Philadelphia.

Without question, a conviction under §659 can only

be sustained if there is evidence that the stolen items

were goods “moving as or which are a part of or which

constitute an interstate or foreign shipment of freight.””

2. 18 U.S.C. §659 provides in pertinent part:

“Whoever embezzles, steals, or unlawfully takes, carries

away or conceals, or by fraud or deception obtains trom any

pipeline system, railroad car, wagon, motortruck, or other vehi-

cle, or from any tank or storage facility, station, station house,

platform or depot or from any steamboat, vessel, or wharf, or

from any aircraft, air terminal, airport. aircraft terminal or air

A-5

There is no requirement of literal movement; goods

which are part of or constitute an interstate or foreign

shipment are covered by the statute even if not in motion

at the time of the theft. United States v. Gollin, 176 F.2d

889, 893 (3d Cir.), cert. denied sub nom. Richman v.

United States, 338 U.S. 848 (1949); United States v.

Wills, 593 F.2d 285 (7th Cir. ), cert. denied, 441 U.S. 964

(1979); United States v. Williams, 559 F.2d 1243 (4th

Cir. 1977); United States v. Astolas, 487 F.2d 275, 279

(2d Cir. 1973), cert. denied sub nom. Edin v. United

States, 416 U.S. 955 (1974). The test for determining

whether goods are part of an interstate or foreign ship-

ment is a practical one based on common sense and ad-

ministered on an ad hoc basis. United States v. Astolas,

487 F.2d at 279. In order to make this determination,

courts look to a variety of factors, such as the relation-

ship between the consignee, consignor, and carrier; the

indicia of interstate or foreign commerce at the time of

the theft; and the preservation of the congressional in-

tent in enacting this statute. United States v. Gimelstob,

475 F.2d 157, 164 (3d Cir.), cert. denied, 414 U.S. 828

navigation facility with intent to convert to his own use any

goods or chattels moving as or which are a part of or which con-

stitute an interstate or foreign shipment of freight, express, or

other property; or

“Whoever embezzles, steals, or unlawfully takes by any

fraudulent device, scheme, or game, from any railroad car, bus,

vehicle, steamboat, vessel, or aircraft operated by any common

carrier moving in interstate or foreign commerce or from any

passenger thereon any money, baggage, goods, or chattels, or

whoever buys, receives, or has in his possession any such mon-

ey, baggage, goods, or chattels, knowing the same to have been

embezzled or stolen—

“Shall in each case be fined not more than $5,000 or im-

prisoned not more than ten vears, or both; but if the amount or

value of such money, baggage, goods or chattels does not ex-

ceed $100, he shall be fined not more than $1,000 or imprisoned

not more than one year, or both.” (Emphasis supplied. )

A-6

(1973): United States v. Gates, 528 F.2d 1045, 1047

(5th Cir.), cert. denied, 429 U.S. 839 (1976); United

States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970);

United States v. Astolas, 487 F.2d at 279. The delivery

of goods to a carrier before the theft occurred, if applica-

ble, and the physical location of the shipment when sto-

len are important considerations, United States v.

Astolas, 487 F.2d at 279, but no one factor is conclusive.

United States v. Parent, 484 F.2d 726, 729 (7th Cir.

1973), cert. denied, 415 U.S. 923 (1974). Rather, each

case must be evaluated on its own particular facts, Unit-

ed States v. Gimelstob, 475 F.2d at 164, recognizing that

§659 was designed to promote the flow of goods in inter-

state and foreign commerce, and that “the carrying out

of this purpose is not to be hampered by technical legal

conceptions.” United States v. Waroneck, 582 F.2d 1158

(7th Cir. 1978), quoting United States v. Astolas, 487

F.2d at 279.

Both parties agree that the copper cathodes involved

in this case constituted a foreign shipment at least until

the ship docked in Philadelphia. They also agree that a

foreign or interstate shipment does not lose its charac-

teristic as such “until it arrives at its final destination

and is there delivered.” United States v. Yoppolo, 435

F.2d 625, 626 (6th Cir. 1970). Garber and Denucci con-

tend, however, that once the shipment of copper was di-

verted to Philadelphia and it became clear that the cop-

per cathodes could not be delivered to their original

destination in Connecticut, Philadelphia became the fi-

nal destination of that particular shipment. The Govern-

ment, on the other hand, argues that Philadelphia was

only a temporary stop, occasioned by an unforeseen

change in route by the shipping company.* The Govern-

3. Jurisdiction under 18 U.S.C. §659 (1976) can be based on

shipments which are either interstate or foreign. Both parties char-

acterize the shipment in question as foreign. The key fact is that it

originated in Chile and ‘terminated in the United States. Since the

A-7

ment emphasizes that the evidence demonstrated that

Cerro did not seek to have the copper delivered to Phila-

delphia, did not intend to keep it there, intended to sell

all the copper cathodes it imported, and at the time of the

theft was seeking another party to replace Anaconda as

purchaser of that specific lot of copper. We believe that a

common sense view of the facts in this case requires us

to agree with the Government’s position. Although, at

the time of the theft, Cerro did not have another specific

purchaser in mind, there was uncontradicted evidence

that Cerro had no use for the copper cathodes at its dock

in Philadelphia, and was attempting to sell the shipment

to companies located elsewhere.

Despite this evidence, the defendants vigorously as-

sert that Philadelphia must be viewed as the final desti-

nation of the copper. Their primary argument is that the

cathodes remained in Philadelphia for such an extended

period of time that the shipment could not have been

considered temporarily delayed. The cases explicitly

hold that in determining whether interstate or foreign

commerce is involved under §659, the crucial time is the

time of the theft. United States v. Gollin, 166 F.2d 123

(3d Cir.), cert. denied, 333 U.S. 875 (1948); United

States v. Tyers, 487 F.2d 828 (2d Cir. 1973); cert. de-

nied, 416 U.S. 971 (1974); Winer v. United States, 228

alleged jurisdictional basis is provided by the journey from outside

the United States, whether it crosses state lines once it arrives in

the United States is irrelevant so long as the cargo from the foreign

port has not yet reached its final destination. Thus, if a shipment of

goods from Chile to Pittsburgh is shipped via Philadelphia and

hijacked on the leg of the journey fiom Philadelphia to Pittsburgh, a

theft from a foreign shipment has occurred. Under the Govern-

ment’s theory, the copper was stolen during a temporary delay in

the trip moving the copper from Chile. Whether this copper was

destined tor Pennsylvania or some other state was inconsequential.

The crucial point is that Cerro did not intend the journey from Chile

to end at the Philadelphia waterfront.

A-8

F.2d 944 (6th Cir.), cert. denied, 351 U.S. 906 (1956);

United States v. Hardaway, 455 F.Supp. 226 (N.D. Ill.

1978), affd, 593 F.2d 285 (7th Cir. ), cert. denied, 441

U.S. 964 (1979). Delays enroute do not deprive ship-

ments of continued characterization as interstate or for-

eign so long as the goods have not yet reached their des-

tination, United States v. Augello, 452 F.2d 1135, 1141

(2d Cir. 1971), cert. denied, 406 U.S. 922 (1972), and

the shipper or carrier intends to resume the journey.

United States v. Maddox, 394 F.2d 297 (4th Cir. 1968).

In the instant case, at the time the thefts began, the

copper had been in Philadelphia for 28 days.* The de-

fendants argue that this demonstrates that there was

more than a brief delay in the journey.” Under the cir-

cumstances present in this instance, we do not perceive

28 days to be such an extended length of time that it

necessarily converts a temporary destination into a final

one. In United States v. Augello, 452 F.2d 1135 (2d Cir.

1971), a shipment first entered the United States when

it arrived at the docks in New York. Its final destination

was a warehouse located elsewhere within the state of

New York. It was stolen 11 days after arrival while

enroute to the warehouse. The court held that this ship-

ment, though somewhat delayed, was still in foreign

commerce at the time of the hijacking.® Moreover, Unit-

4. The copper arrived February 22, 1978; the thefts apparent-

ly began the night of March 22, 1978.

5. The defendants emphasize that the copper cathodes were

still in Philadelphia six months later at the time of the trial. This fact

is deprived of its apparent relevance, however, by the defendants’

concession that the time of the theft is the critical time for determin-

ing whether a shipment is foreign or interstate, and by the absence

of any indication that Cerro had ceased its active pursuit of other

purchasers.

6. The intended route for the shipment from the dock to the

warehouse was intrastate. The court viewed the situation as an

uncompleted foreign journey, and based its jurisdiction solely on

the fact that the goods were still in foreign commerce at the time of

the theft. United States v. Augello, 452 F.2d 1135, 1141 (2d Cir.

1971).

A-9

ed States v. Maddox, 394 F.2d 297 (4th Cir. 1968), upon

which Garber and Denucci rely, is not to the contrary. In

Maddox, a sugar broker regularly purchased large

quantities of sugar from Puerto Rico. The sugar was

shipped to Baltimore and stored temporarily in a ware-

house. Maddox stole bags of sugar from the warehouse

over a three-month period. The court upheld his convic-

tion under §659, despite Maddox’s claim that the sugar

in the warehouse had lost its character as foreign or in-

terstate commerce. The court stated:

“The deposit of cargo in a warehouse may un-

der certain circumstances constitute a coming to

rest, marking the termination of an interstate or for-

eign shipment. At other times, however, the stop-off

at the warehouse may be only a pause in the course

of an uncompleted journey. Standing alone, the re-

moval of goods to a warehouse is not conclusive; nor

is the consignee’s power to divert the goods from the

intended interstate commerce. See Champlain Re-

alty Company v. Town of Brattleboro, 260 U.S. 366,

43 S.Ct. 146, 67 L.Ed. 309 (1922). These are merely

factors to be considered, but there is no rigid rule of

law that mandates a holding either way. The answe

in any particular case must depend on a factual as-

sessment.”

‘.. . There is no absolute requirement that the

flow of commerce be continuous if there is the clear

intention to resume after a brief pause.”

Id. at 299-300. After reviewing the record, the court con-

cluded that the sugar was part of a “continuing, though

interrupted, shipment in commerce.” Id. at 300. Garber

and Denucci seize on the statement in Maddox that the

flow of commerce may be interrupted so long as there is

the intention to resume the journey after a brief pause.

The linchpin of their argument is that 28 days cannot be

considered a brief pause. Our reading of Maddox does

A-10

not lead to such an inelastic definition of “brief pause.”

First, we point out that Maddox is silent as to the length

of time the sugar had been in the warehouse at the time

of the theft. Second, we note the Maddox court’s remon-

stration that there are no rigid rules in determining

whether goods have come to rest, and that ad hoc deci-

sions must be made based on the particular facts of each

case. In light of these considerations, we conclude that

the 28 days the copper cathodes were in Philadelphia be-

fore the time of the theft did not in themselves deprive

the shipment of its foreign character. ’

Furthermore, in a slightly different context courts

have often ruled that a substantial delay in one state

does not necessarily cause an item to lose its interstate

character. For example, to support a conviction under 18

U.S.C. §2313 (1976), which outlaws the sale or receipt

of stolen vehicles, the Government must show that at

the time of the crime the vehicle in question was moving

in the “stream of interstate or foreign commerce” and

had not yet come to rest within a state. United States v.

Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978). In United

States v. Baker, 452 F.2d 21 (5th Cir. 1971), cert. de-

nied, 405 U.S. 974 (1972), a truck was stolen and trans-

ported across state lines to its destination state. It re-

mained there for three months and was used personally

during that time by a dealer in stolen goods. He “re-

vealed no intention of keeping it,” however, and sold it to

7. We emphasize once again that at the trial there was

undisputed evidence that Cerro continued its active pursuit of pur-

chasers for the copper throughout this period. While it may be that

in other circumstances, e. g., if the seller made no attempt to seek

other buyers or if the shipment consisted of a non-fungible com-

modity without a steady market, a period of 28 days might be seen

as evidence of something other than a temporary pause, we do not

have such a case before us.

A-1]

Baker. Id. at 24. The court upheld Baker’s conviction un-

der §2313, stating:

“Admittedly, [the dealer] had the vehicle in his pos-

session for three months. Time, however, is not con-

clusive but rather one of the facts to be considered

in determining whether a vehicle is in interstate

commerce. We cannot say, as a matter of law, that

the vehicle in this case lost its interstate character.”

Id. Similarly, in United States v. Tobin, 576 F.2d 687

(5th Cir.), cert. denied, 439 U.S. 1051 (1978), the de-

fendants attacked as invalid their convictions under 18

U.S.C. §2315 (1976) for receiving and selling stolen

property which was moving in interstate or foreign com-

merce by emphasizing that two years had elapsed since

the stolen items had crossed state lines and entered the

destination state. They argued that this definitively

proved that the stolen items had come to rest and thus

had lost their interstate character. The court ruled that

simply because goods reach the state where they are in-

tended to be sold does not deprive the goods of their in-

terstate character. Id. at 692. Rather, so long as the

transfer of goods can be considered a continuation of the

movement that began outside the state, the interstate

commerce jurisdictional requirement is fulfilled. [d. Ad-

ditionally, long delays do not necessitate a finding that

items left interstate commerce. Specifically, the Tobin

court that the two years which had elapsed between the

time the items entered the destination state and the time

of the attempted sale did not require a finding that the

items had come to rest before the sale.

In light of the cases interpreting §659 and similar

jurisdictional provisions in §§2313 and 2315, we con-

clude that in this case the 28 days between arrival of the

copper in the United States and the theft do not require

that the shipment be viewed as one which had lost its

foreign character.

A-12

Garber and Denucci base their secondary attack on

the jurisdictional prerequisite for §659 on the fact that at

the time of the theft Cerro had no specific purchaser of

the copper in mind. They acknowledge that Cerro pre-

sented uncontradicted testimony that it could not use

the copper cathodes itself in Philadelphia and was trying

to locate buyers for the copper. Nevertheless, Garber and

Denucci reiterate that unless there is a clear intention to

resume, storage at a warehouse constitutes the termina-

tion of a foreign or interstate shipment. They further as-

sert that in order for there to be sufficient intent to re-

sume the journey, there must be a specific ultimate

destination in mind. We are not persuaded by this argu-

ment. Although generally shippers will have a specific fi-

nal destination in mind, there are instances — and this

case is one of them — when this will not be so.®

Case law provides us with other telling examples.

United States v. Gates, 528 F.2d 1045 (5th Cir.), cert.

denied, 429 U.S. 839 (1976), presents a factual situation

quite similar to the one at hand. In Gates, a carton was

shipped from New York to Georgia for delivery to the

consignee in Atlanta. The consignee, however, refused

to accept delivery. The carton was stolen in Atlanta

while the truck was enroute to the local terminal. The

defendant attacked his conviction under §659, asserting

that the goods were in local transit at the time of the

8. Defendants’ insistence that in order to characterize a ship-

ment as one involved in an ongoing journey, rather than as one

which has come to its final destination, the seller must in every in-

stance have a specific purchaser in mind is too inflexible. It would

lead to such anomalous results as sustaining a conviction under

§659 if goods were stolen from a pier so long as the shipper thought

that the consignee intended to come pick up the shipment, but re-

versing a conviction under §659 if the same goods were stolen one

hour after the consignee had just cancelled the contract and re-

fused to pick up the shipment, suddenly leaving the shipper without

a consignee.

A-13

theft. The Fifth Circuit sustained the conviction, stating

that the fact that the consignee had refused delivery did

not mean the goods lost their interstate character.

“There is no need to employ complex fictions

about legal title to arrive at an artificial result. The

facts of this case strongly indicate that the stolen

goods were part of a continuing interstate shipment.

Final delivery was never effected. In fact, the goods

were stolen before they were ever removed from the

truck by an employee of the carrier. That Baron’s

initially rejected the shipment is not controlling.

The carton retained its interstate character despite

the aborted delivery and the fact that were it not for

the theft, the carrier would have been forced to

make arrangements to dispose of the shipment, pre-

sumably at the direction of the consignor.

Id. at 1047-48. In United States v. Maddox, 394 F.2d at

299, discussed above at pages 8-9, the Fourth Circuit af-

firmed a conviction under §659 for theft of sugar from a

warehouse. A sugar broker regularly imported large

quantities of sugar from Puerto Rico. It arrived in the

United States at Baltimore, where regular customers

picked up 40% to 60% of each shipment directly from

the pier. The rest of the sugar was stored temporarily in

a warehouse in Baltimore. Approximately 70% of the

warehoused sugar was held to meet pre-existing con-

tracts with buyers in surrounding states. The defendant

stressed that the sugar stolen from the warehouse was

no longer in foreign commerce since the individual bags

were not earmarked for any particular buyer, the sugar

broker could do with the sugar as he saw fit, and a sig-

nificant portion of the sugar had not yet been sold. De-

spite these facts, the court held that an assessment of all

the circumstances of the case indicated that the sugar

had not left interstate commerce. In United States v.

Thomas, 396 F.2d 310 (2d Cir. 1968), 67 cartons arrived

in New York from Japan pursuant to the order of an im-

A-14

porter located in New York City. Seven days later a

trucking company, acting as agent for the importer, re-

moved the cartons from the pier and took them to the

trucking company’s warehouse. That same day two car-

tons were stolen. The cartons were not earmarked for

specific buyers. At the time of the theft, the importer had

received orders for 56 cartons. The remaining 1! were to

be held at the importer’s New York warehouse pending

further orders. Under these facts, even though it was

unclear whether the two cartons stolen were those for

which orders had been received or not, the court sus-

tained convictions for violating §659.°

In the case at bar there was, in effect, an aborted de-

livery to Anaconda. Cerro was, therefore, forced to make

other arrangements to dispose of the shipment. The fact

that these arrangements had not been made at the time

of the theft, when coupled with the fact that Cerro was

unexpectedly faced with the arrival of a shipment of ap-

proximately 500 tons'° of copper cathodes in a port with

no purchasers situated nearby, does not, in our view, de-

prive the shipment in question of its foreign character.

To summarize, taking a common sense approach to

the realities of this situation, we do not believe that the

unforeseen delivery to Philadelphia, with the conse-

quent cancellation of the agreement that this particular

shipment would go to Anaconda in Connecticut, thus

necessitating that Cerro attempt to find alternative pur-

9. The court in United States v. Thomas, 396 F.2d 310 (2d Cir.

1968), emphasized the fact that many of the cartons were ultimate-

ly destined for delivery out of state. Nonetheless, in light of the fact

that the journey originated in Japan and was continuing, though it

had been temporarily interrupted in the United States, the court af-

firmed the trial court's finding that “the cartons were ‘in interstate

or foreign commerce’ when they were |stolen].” Id. at 315.

10. There was testimony that the shipment of copper consist-

ed of 3,262 cathodes. App. at 124a. Each cathode weighs approxi-

mately 300 pounds. Id. Therefore, the total shipment of copper

weighed approximately 978,600 pounds, or nearly 500 tons.

A-15

chasers for the copper, deprived this shipment of its for-

eign character. Nor do we think that the fact that at the

time of the theft Cerro had been unsuccessful for the

previous 28 days in locating buyers for the cathodes re-

quires a finding that the shipment had come to rest at its

final destination. Rather, we are persuaded that, in the

circumstances of this case, Cerro’s active pursuit of al-

ternative purchasers demonstrates Cerro’s intent to re-

sume the shipment as soon as possible. This intent is

dispositive and supports the conclusion that, at the time

of the theft, the shipment of copper cathodes had not

reached its final destination and had not losi its foreign

commerce character. Because we conclude that the de-

fendants’ challenge to the jurisdictional basis of their

convictions for violating §659 fails, we affirm the judg-

ment of conviction of Count I.

II].

The defendants also challenge their conviction for

possession of stolen goods under §659.'' Garber and

Denucci assert that they could not properly be convicted

of both theft from an interstate shipment and possession

of goods stolen from an interstate shipment when the

same goods were at issue in both charges. We agree with

their argument insofar as it attacks the sentences for

possession of stolen goods under §659. A review of the

recent cases reveals that courts have carefully examined

this and similar statutes to determine the congressional

intent in punishing multiple aspects of the same crimi-

nal act. The Supreme Court in Heflin v. United States,

358 U.S. 415 (1959), was faced with a defendant who

had multiple convictions under 18 U.S.C. §2113 (1976)

11. The text of the pertinent provisions of §659 appears at note

2. supra,

A-16

arising from one bank robbery. The defendant was con-

victed of violating §2113(d) in unlawfully taking the

funds and of violating §2113(c) in unlawfully possessing

the same funds. The Court, stating that “we resolve an

ambiguity in favor of lenity when required to determine

the intent of Congress in punishing multiple aspects of

the same criminal act,” id. at 419, held that subsection

(c) was designed to reach a new group of wrongdoers,

those who only received the money from the robbers, not

to increase the punishment of those who actually robbed

the bank. Therefore, only one conviction was allowed to

stand. A similar situation presented itself in United

States v. Gaddis, 424 U.S. 544 (1976). The defendants

had been convicted of robbing a bank and of possessing

the funds stolen in the robbery. The appellate court held

that it was plain error to allow the jury to convict an indi-

vidual both of taking and of possessing the money ob-

tained in one robbery, reversed the judgments of convic-

tion, and ordered a new trial. The Supreme Court agreed

that the defendants could not be convicted of both

counts, ruling that the trial judge should have instructed

the jury to consider, first, the theft charge, ‘and only con-

sider the possession charge if they found insufficient

proof that the defendants actually participated in the

robbery. The Court, however, disagreed that a new trial

was necessary, and held that the error could be fully cor-

rected by simply vacating the conviction and sentence

under the possession count. Id. at 549, 552.

The Sixth Circuit adopted this approach in review-

ing multiple convictions under §659 in an opinion by our

colleague, Judge Adams, sitting with the U. S. Court of

Appeals for the Sixth Circuit. United States v. Solimine,

536 F.2d 703 (6th Cir.), vacated on other grounds, 429

U.S. 990 (1976), cert. denied sub nom. Sclafani v. Unit-

ed States, 430 U.S. 918 (1977). Finding “no indication

in the sparse legislative history of section 659 that Con-

A-17

gress intended to regard each theft from interstate ship-

ment as a multiplicity of discreet offenses so that the

punishment for such theft could be enhanced,” id. at

710, the court concluded that the section of the statute

outlawing possession of goods stolen from an interstate

or foreign shipment was an attempt to bring within the

scope of the criminal law a different class of wrongdoers

from the actual participants in the theft. Holding that

convictions of theft from interstate shipment and of re-

ceipt and possession of the same property could not both

stand, the court vacated the conviction and sentence

with respect to the possession count. Id. at 711. In Unit-

ed States v. Gilbert, 553 F.2d 990 (5th Cir. 1977), the

Fifth Circuit explicitly followed Solimine and held that

under §659 the defendant could not properly be convict-

ed of both theft from interstate freight shipments and

possession of the proceeds of the theft. Even more re-

cently, the Second Circuit has taken a similar approach.

In United States v. DiGeronimo, 598 F.2d 746 (2d Cir. ),

cert. denied, 100 S.Ct. 180 (1979), the court held that

the defendants’ convictions of interference with inter-

state commerce by means of robbery in violation of 18

U.S.C. §1957 (1976) and of knowing receipt and posses-

sion of goods stolen from interstate commerce in viola-

tion of 18 U.S.C. §659 were improper. Acknowledging

that convictions under two different statutes were in-

volved, unlike the situations presented by Heflin,

Gaddis, and Solimine, the court nonetheless ruled that

the convictions were multiplicitous. It viewed the charge

of theft under §1951 as the functional equivalent of a

charge under the theft provisions of §659. Finding no

support in the legislative history of either statute for the

proposition that Congress wanted to “punish separately

and cumulatively the crimes of robbing a truck of its

contents and receiving the stolen goods,” id. at 751, the

court vacated the conviction and sentence with respect

A-18

to the possession count.'* See Busic v. United States, 48

U.S.L.W. 4535, 4538 (May 19, 1980), citing Simpson v.

United States, 435 U.S. 6 (1978).

This review of the decisional law convinces us that

the convictions of Garber and Denucci under §659 for

both theft from a foreign shipment and receipt and pos-

session of goods stolen from a foreign shipment are

multiplicitous. Since the jury’s verdict indicates that it

made factual findings that both defendants participated

in the theft and then kept the proceeds, we may con-

clude that a properly instructed jury would have stopped

after making the first finding (see discussion of Gaddis

at page 15 above). Therefore, the proper remedy is to va-

cate the conviction and sentence with respect to the pos-

‘session count. Id. at 711. Accordingly, we must vacate

the judgments of conviction and the sentences imposed

on Garber and Denucci under Count II.

12. Our decision in United States v. Gomez, 593 F.2d 210 (3d

Cir. 1979) (en banc), is not to the contrary. In Gomez the defendant

was convicted of two offenses under 21 U.S.C. §841(a)(1) (1976):

distribution of cocaine and possession with intent to distribute co-

caine. The court affirmed both of the convictions, but vacated the

sentences in order “to effectuate the congressional intent to prevent

sentence pyramiding, and to avoid the anomalies of a technical ap-

plication of the merger theory.” Id. at 217. Gomez explicitly noted

that the Supreme Court held in Gaddis v. United States, 424 U.S.

544 (1976), that under the federal bank robbery statute, 18 U.S.C.

§2113 (1976), “a jury should be instructed that it can convict a de-

fendant for either robbery or receiving, but not for both.” 593 F.2d

at 217 n. 20. This principle applies to the instant case where the

defendants were convicted of theft from a shipment in interstate or

foreign commerce and of possession of goods stolen from interstate

or foreign commerce. Gomez, which arises out of a different statute

concerning drug transactions, as opposed to theft, is factually dis-

tinguishable from the case at hand. In United States v. Dowling,

_._.-—-~*F.2d _.s (July -9, 1980, 3d Cir. Nos. 79-2130/31 &

80-1444/45), this court vacated in certain situations only the sen-

tences, as opposed to the convictions.

A-19

IV.

Garber and Denucci appeal, in addition, from their

conviction of removing goods from customs custody in

violation of §549. They argue that the copper cathodes

were not in customs custody in March 1978 when they

were stolen. The Government, acknowledging that the

copper was located at the pier outside the north end of

the Northern Metal warehouse and not in a facility oper-

ated by the Customs Service, contends that the cathodes

were in constructive customs custody in March 1978.

Section 549 provides in pertinent part:

“Whoever, maliciously enters any bonded

warehouse or any vessel or vehicle laden with or

containing bonded merchandise with intent unlaw-

fully to remove therefrom any merchandise or bag-

gage therein, or unlawfully removes any merchan-

dise or baggage in such vessel, vehicle, or bonded

warehouse or otherwise in customs custody or

control

x x Xe

[s]hall be fined not more than $5,000 or imprisoned

not more than two years, or both.” (Emphasis

supplied. )

Courts which have interpreted this statute have held

that goods imported into this country are in constructive

customs custody from the moment of their arrival in the

United States until their release by the Customs Service,

regardless of whether the Customs Service has actual

physical possession. United States v. Harold, 588 F.2d

1136, 1142 (5th Cir. 1979); Mungo v. United States, 423

F.2d 1351, 1354 (4th Cir. 1970).

In the instant case the copper had recently arrived

in the United States from Chile. Constructive customs

custody had thereby been established. The dispute cen-

ters on whether four weeks after arrival the Customs

Service had released the shipment, thus extinguishing

A-20

customs custody. An examination of the record before us

reveals that the cargo arrived in Philadelphia on Febru-

ary 22, 1978. The copper in question was accepted by

Northern Metal on February 25.'% At the time of

unloading, the steamship company counted the copper

bundles in the cargo. When Northern Metal took deliv-

ery from the ship, it transferred the bundle count onto a

warehouse certificate, which it forwarded to Cerro.'* A

bond for immediate delivery had already been posted un-

der which the Customs Service could release goods prior

to the payment of the exact amount of the duty.'°

As noted earlier, this shipment was originally con-

signed to Anaconda in Bridgeport, Connecticut, but was

discharged in Philadelphia because it had unexpectedly

been rerouted by the steamship company. At the time it

was unloaded in Philadelphia, a substitute consignee

had not yet been located. The Government relies on this

fact, contending that goods are released from customs

custody only when the consignee accepts delivery from

the shipper. Unfortunately, the Government provides us

with no statutory or decisional authority for this conten-

tion.'© Therefore, we have found it necessary to review

the statutory scheme regulating imported goods.

13. Government Exhibit 6, introduced at trial, documents this

fact.

14. App. at 147a.

15. App. at 178a-182a; App. at 143a.

16. The Government asserts that goods are released from cus-

toms custody when they are “permitted,” or authorized to be deliv-

ered to the next consignee, but cites no support for this assertion. It

does not point to a single statute or case involving customs custody

in which the word “permitted” is used. The Government turns to 19

C.F.R. §158.1 to locate the definition of “permitted.” Unfortunately,

this regulation sheds no light on this issue. It concerns relief from

duties paid on lost, damaged, abandoned, or exported merchandise,

see 19 C.F.R. §158.0 (1979), a different problem from the one at

hand. While it defines “permitted,” it does so solely for the purpose

of Subpart A, that portion of the regulation regarding lost or missing

A-2]

The Tariff Act of 1930, 19 U.S.C. §§1303-1677g

(1976), sets forth an orderly procedure for ascertaining

and collecting duties. A portion of the Act, §1499, while

not phrased in terms of “release,” appears to refer to the

concept involved. It provides in part:

“Imported merchandise, required by law or reg-

ulations made in pursuance thereof to be inspected,

examined, or appraised, shall not be delivered from

customs custody, except under such bond or other

security as may be prescribed by the Secretary of

the Treasury to assure compliance with all applica-

ble laws, regulations, and instructions which the

Secretary of the Treasury or the Customs Service is

authorized to enforce until it has been inspected,

examined, or appraised and is reported by the ap-

propriate customs officer to have been truly and

correctly invoiced and found to comply with the re-

quirements of the laws of the United States.” (Em-

phasis supplied)

From this statute we conclude that, generally, customs

custody of imported goods continues until the merchan-

dise has been inspected, found to be correctly invoiced,

and found to otherwise comply with the laws of the Unit-

ed States. See Mungo v. United States, 423 F.2d at 1357.

Further, once the inspection and the requisite findings

have been made — or, if a proper bond is filed, before the

Statutory duties are carried out — the goods can be re-

leased from customs custody. !”

packages and deficiencies in contents of packages. It is silent as to

the genesis of the term “permitted.” Furthermore, although there is

reference to theft while in customs custody in Subpart C, the word

“permitted” never appears in that suupart.

17. Another portion of the Act also addresses the issue of re-

lease from customs custody. Section 1484(j) provides in part:

“(j) Merchandise shall be released from customs custody only

to or upon the order of the carrier by whom the merchandise is

brought to the port at which entry is made, except that mer-

A-22

Applying these principles to the facts presented by

this record, we conclude that the copper cathodes had

been released from customs custody at the time of the

theft. We emphasize that a sufficient immediate delivery

bond had been posted, that Northern Metal had accept-

ed delivery from the ship and had transferred the ship's

bundle count to its warehouse certificate, that 28 days

had elapsed since the cargo had arrived in the United

States, and that there was no representation by the Gov-

ernment that the Customs Service intended to make any

further inspection, examination, or appraisal of the ship-

ment. In view of these circumstances, we believe that

the fact that a specific consignee had not yet been

named is insignificant. Although, in the usual case, a

shipment unloaded at the dock would be earmarked for a

NOTE 17 — (Continued )

chandise in a bonded warehouse shall be released from Cus-

toms custody only to or upon the order of the proprietor of the

warehouse. The customs officer shall not be liable to any per-

son in respect of the delivery of merchandise released from cus-

toms custody in accordance with the provisions of this section.

Where a recovery is had in any suit or proceeding against a Cus-

toms officer on account of the release of merchandise from cus-

toms custody, in the performance of his official duty, and the

court certifies that there was probable cause for such release by

such customs officer, or that he acted under the directions of

the Secretary of the Treasury, or other proper officer of the Gov-

ernment, no execution shall issue against such customs officer,

but the amount so recovered shall, upon final judgment, be

paid out of moneys appropriated from the Treasury for that

purpose.”

Although a literal reading of this section might indicate that a pre-

requisite to release is an order from the carrier, we believe that this

section is not controlling in the case before us. This provision ap-

pears to concern the liability of the Customs Service in a bailment

situation when actual custody and control is involved. We are con-

fronted with an instance of constructive, not actual, custody. We

find §1484(j) unhelpful in illuminating when release from con-

structive customs custody occurs.

~

A-23

particular consignee and that shipment would be re-

leased directly to the consignee or its agent after a short

time on the pier, this is not the usual case. The

unintended delay of the instant shipment while Cerro

sought an alternative purchaser did not increase the

governmental interest in the goods. In the absence of

any indication that the Customs Service intended to

make any further exanfination or appraisal of the ship-

ment, we hold that in this case the goods had been re-

leased from constructive customs custody at the time of

the theft.

We note that the cases we have reviewed on this is-

sue are not to the contrary. In United States v. Harold,

588 F.2d at 1136-37, the defendant was employed as a

dock foreman. On the very day the cargo was being

offloaded, he removed five cartons from the ship’s cargo

containers and attempted to place them into his car,

rather than into the warehouse where they were to be

stored. The court upheld his conviction under §549, em-

phasizing that there had not even been a chance for the

Customs Service to inspect the goods or authorize them

for delivery. In Mungo v. United States, 423 F.2d at

1352-53, a ship had arrived carrying a container of im-

ported Scotch whiskey. The container was unloaded

from the ship and placed on a flatbed trailer parked next

to the warehouse at the dock. Four or five days later, the

defendants were apprehended removing cases of whis-

key from the container. In sustaining the §549 convic-

tion, the court stated that the final inspection before re-

lease of the whiskey from customs custody had been

scheduled but had not yet taken place at the time of the

theft.'® The short length of time which had passed since

the ships in Harold and Mungo had arrived and the fact

18. The final inspection was scheduled to be performed during

the working hours of February 27. The defendants had removed the

cases a few hours earlier, at 12:35 a.m. on February 27. Mungo v.

United States, 423 F.2d 1351, 1357 (4th Cir. 1970).

A-24

that there were specific customs inspections yet to be

performed distinguish these cases from the one at bar.

Therefore, guided by the principle that criminal

statutes should be strictly construed, we conclude that

under the pertinent statutory and decisional authority

the copper cathodes in this case were no longer in cus-

toms custody at the time of the theft. Accordingly, an es-

sential element of the offense prohibited by §549 is miss-

ing, and we must reverse the judgment of conviction on

Count III.

V.

After careful consideration of other grounds for re-

versal advanced by appellants, which are enumerated in

the Appendix to this opinion, we have concluded that

such grounds are without merit.

VI.

In conclusion and recapitulation, our review of the

issues presented by these appeals convinces us that the

copper cathodes had not reached their final destination

at the time the theft occurred, and therefore were still

part of a foreign shipment. Thus, the convictions for

theft from a foreign shipment in violation of §659 were

proper. Since the defendants were convicted of theft of

the copper, the convictions under §659 on the posses-

sion charge were improper and will be reversed. Fur-

thermore, the facts of this case indicate that the ship-

ment of copper was not still in customs custody at the

time of the theft. Thus, the convictions under §549 must

be reversed. Accordingly, we will vacate the judgments

A-25

with respect to the sentences imposed for receipt and

possession of goods stolen from a foreign shipment and

for removal of goods from customs custody. In all other

respects, we will affirm the district court judgments of

conviction and sentence.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A-26

APPENDIX

Garber and Denucci also advance the following oth-

er grounds which they assert warrant reversal of their

convictions:

(A) insufficiency of the evidence to sustain convic-

tions of conspiracy under 18 U.S.C. §371;'°

(B) jury verdicts contrary to the weight of the evi-

dence and unsupported by substantial evidence which

reasonable men could be convinced beyond a reasonable

doubt was true;??

(C) misconduct of the prosecutor in offering photo-

graphic exhibits representing the scene of the alleged

crime which were not properly authenticated, in intimi-

dating a defense witness while still under oath, and in

introducing co-defendant’s statement which the pros-

ecutor failed to disclose under Fed. R. Crim. P. 16;7!

(D) admission of evidence which should have been

suppressed because the photographic identifications

were impermissibly suggestive, because the consent to

the first search was not voluntarily given, because the

search warrants were not based on probable cause and

lacked the necessary specificity, because the magistrate

who issued the second search warrant was not informed

of the fact that a prior search had taken place, and be-

cause the statements obtained were involuntary and the

product of coercion;**

(E) admission of statements without a showing that

such statements were in furtherance of a conspiracy and

also in violation of Bruton v. United States, 391 U.S. 123

(1968);7°

19. Item 4 of appellant’s brief at No. 79-2517. It is noted that

appellant at No. 79-251] incorporated, at page 37 of his brief, all the

compatible arguments of appellant at No. 79-2517.

20. Item 5 of appellant’s brief at No. 79-2517.

21. Item 6 of appeliant’s brief at No. 79-2517.

22. Item 7 of appellant's brief at No. 79-2517 and Item IV (p.

26) of appellant’s brief at No. 79-2511.

23. Item 8 of appellant's brief at No. 79-2517.

A-27

(F) refusal to grant defendant’s motion for bill of

particulars which would have enabled him to prepare

adequately for trial;*4

(G) admission of a video tape re-enactment of the al-

leged crime without a proper foundation, which lacked

probative value and was highly prejudicial, and failure to

give limiting instructions on the evidentiary value of the

video tape film;?°

(H) admission of proof in variance with the indict-

ment;7©

(1) admission of inadmissible evidence in the nature

of legal opinions dealing with the ultimate issue at

trial;?’

(J) undue restriction of defense counsel’s cross-ex-

amination of a Government witness regarding his refus-

al to undergo a polygraph examination;?°®

(K) admission of photographic exhibits which were

not authenticated;?°

(L) refusal to allow an on-site inspection of the

crime scene or an actual demonstration of the events in-

troduced by the Government through its video tapes;°°

(M) exclusion of relevant and probative evidence

concerning the frequency of thefts which would have ef-

fectively refuted the Government’s theory of the case;?!

(N) admission of evidence of defendant’s prior

activities; >

24. Item 9 of appellant’s brief at No. 79-2517.

25. Item 10 of appellant’s brief at No. 79-2517 and Item 11 (p.

16) of appellant’s brief at No. 79-2511. —_

26. Item 11 of appellant’s brief at No. 79-2517.

27. Item 12 of appellant’s brief at No. 79-2517.

28. Item 13 of appellant’s brief at No. 79-2517 and Item III (p.

24) of appellant’s brief at No. 79-2511.

29. Item 14 of appellant’s brief at No. 79-2517.

30. Item 15 of appellant’s brief at No. 79-2517.

31. Item 16 of appellant's brief at No. 79-2517.

32. Item 17 of appellant’s brief at No. 79-2517.

A-28

(O) improper interference by the court with the ex-

amination of witnesses by rehabilitating Government

witnesses and extensively cross-examining defense wit-

nesses;*?

(P) instructions to the jury which erroneously stat-

ed the law and unduly stressed the Government’s

case;**

(Q) denial of request to interrogate all jurors and er-

roneous restriction of the examination of two jurors.*”

33. Item 18 of appellant's brief at No. 79-2517.

34. Item 19 of appellant's brief at No. 79-2517.

35. Item 20 of appellant's brief at No. 79-2517.