Petition for Writ of Certiorari — Maloney v. United States

~~ §2 i

Ser:

In The

7 Supe Court of the United States

October Tem, (197 ]

Nos ,

JOHN MALONEY, = -

Petitioner, +

- against -

UNITED STATES OF AMERICA,

e*-

Respondent.

PETITION FOR A WRIT OF CERTIGRARI TO THE

-UNITED STATES COURT OF APPEALS FOR THE

___ SECOND CIRCUIT

IRVING ANOLIK

— Attomey for Petitioner

225 Broadway

New York, New York 10007

(212). 732-3050

“*

(4817) LUTZ APPELLATE PRINTERS, INC.

Law end Finencia!l Printing | ;

* South River N.I. New York, N.Y. Philadelphia, Pa.

ie eee

. Ra et SENDS OSS REESE MRE SPELLS APR

—.

| e a

: TABLE OF CONTENTS ~~

' Petition -

Statement: ... ).... pe as flict

Opinion Below ee ee ee ee ee

* . ‘Jurisdiction ‘--

es . : a as

G : a : P s

Questions Presented -"...... Gah aaa

Constitutional one Statutory: Provisions! In- 7

4 _ volved er ee a ee ee i ae ee

ie | Statement of the Case... 2... . eee

Argument:

, - Point I. There was no evidence whatso- -

ever that Petitioner Maloney ever’ ~

._ bought, sold, received or otherwise

ae .dealt'in the- property which was found

in Di Menna’s garage., On the same |

.evidence, two co-defendants had‘the

indictments dismissed by the Court

_ of Appeals. The Court below has per-

mitted’.a conviction to stand which is

predicated’.upon no evidence: whatso-.

ever. The conviction is sans due |

process.“ ....- lai Gel woe we

tt

~~

Contents

. Point II]. The petitioner was deprived of,

due process of law since his convic- - |

tion was based onatotaldearthofevi- °*

dence.. No witness testified to any of -

the facts-connecting Maloney with the

crime charged except the arresting

officer who merely observed Maloney

for, the very first’ time when he

knocked on the. door of the | garage.

Possession of. lists containing none: —

of the items inthe garage was no evi-

- dence of guilt. ea ee leh «ewe ©

i. Conclusion ee ef 8 @ a ° ° « ; 2 «© «© @# # @

~ Table of Citations

CASES CITED:

Baumboy v. ‘United States, 9 Cir, 2 24 F.

“: [as Lg SE Tg ee ee

. Coppedge ' v. United States, 369 U.S. 438 ee

Hegwood v. Kindrick, (967, D.C. Tex. )264 .

F. Supp. 720, TO alee ss ee a?

McMillian v. United States, (5 Cir.1968) — -

399 F.2d ey MI a eS :

Poldo v. United States, (9 Cir.) 05 F.2d °

ee Svante eee eee wee er

United States nfo 444 F. 2d 62 (2d

| ee a a ci ea Se 6 ee:

i

‘Contents —

STATUTES CITED: . A. |

18 U.S.C. §371 ery ae: ye. Te

18 U.S.C. $659 9 6. . 2,879,

28 U.S.C. 1254 (1) eee 2

APPENDIX. |

| Opinion of-the Court Below” .. pine oie

a

Order of ‘the Court Below Denying Peti-

tion for -a Rehearing But Granting Stay.

of Mandate ee She 6 ew 8 6 ee Se

3 ; @ .

Qrder of the Court Below Affirming Part

and Reversing SONS 6 6 6 eee es se Re

| |

In The

| Saprene Court of the Mrited Sine a i

+ October er |.) ia ° ie 7

aur JOHN MALONEY, .

J = ae _ Petitioner,

> - Against -

ca UNITED STATES OF AMERICA,

Respondent.

}

PETITION FORA WRIT OF CERTIORARITOTHE °

UNITED STATES COURT OF APPEALS FOR THE .

_ SECOND. CIRCUIT _ pees

nee Statement at eae

"JOHN yea the petitioner heréin,-re-

spectfully prays that this court issue a Wnt of -

' Certiorari to the United States Co rt of Appeals

for. the Second Circuit to’ review ‘the order” of

‘that court which both reversed and affirmed

the judgments of the United States District-Court

for the’ Southern District of New York convicting

°

Iw

*

: the petitioner of violating: 18 L

"S.C. §659 and con-—

spiracy to do the same, 18 U.S.C. § .

371.

The Court of Appeals reversed the conviction

with respect to the conspiracy, but affirmed on

the substantive count. It Is significant, however,

to note that the Court of Appeals reversed- both

the conviction under conspifacy. and the substantive

counts with respect to two other, appellants namely

Vincent Santa and Albert Mercurio. |

4

Opinion Below

The opinion of the Second.Circuit is reprinted

in the appendix heretos N

: Jurisdiction

The jurisdiction of this court is invoked under

28 U.S.C. §1254 (1). The Court of Appeals,

Second Circuit, denied a motion for a re-hearing

and a re-hearing en banc on January 10, 1972,

but stayed the mandate of the court pending

certiorari. (See appendix) .

Questions Presented

i, Whether. petitioner> could be convicted of

an anti@ipatory crime?

2. Since there was no evidence’ at all that

petitioner was ever in possession of the article

allegedly ‘stolen from interstate commerce, was

it pdssible to’ convict him on the basis of sus-

picion alone without one iota of evidence that he

was ever in possession of the stolen items or

that he ever offered to buy or receive them?-

3. Since it is conceded that’ Maloney never

bought, received, or possessed any of the mer-

chafidise found in the garage, and since it is

further conceded that he was never seen at or in

the garage, was it not a violation of due process

to permit a conviction to stand which is clearly

based upon suspicion alone?.

4. Whether transportation in intefstate com-

merce can be inferred solely because,certain goods

had been-loadeii on trailers in New Jersey, awaiting

tractors scheduled to carry them to New York?

No actual evidence that the goods were ever

cagried to'New York exists.

_ Constitutional and Statutory

‘Provisions involved

The Fifth Amendment of the United States

.Constitution and 18 U.S.C. §371 and $659 are in-

volved herein.

On Friday, March 21, 1969, two trailers loaded

with cigarettes and health and beauty aids were

stolen from the Crown Drug Stores Distribution

Center in Cranford, New Jersey. The trailers

were completely loaded awaiting tractors scheduled

to carry the goods to retail stores in Long Island,

New York. * .

Five ‘days later, on March 26, 1969, a federal.

‘agent and New York City detectives, acting on. a

tip from an informant, commenced a surveillance

of a garage on East 172nd Street in the Bronx

which had been rented by’ one DiMenna, ostensibly. .

as. a warehouse for a construction busihess.

.

.

At about 10:00 P.M., after a six hour sur-

veillance, the agents found that the front door was

locked, but by. peering through a window, they

were able to perceive numerous cardboard cartons

marked “Return to SGC Corporation” (the parent

corporation of Crown Drug Stores). At 5:30 A.M.

the next morning, DiMenna drove up in a car

removed some of the cartons and drove off. By

9:20 A.M., another car drove up and Vilhoti,

Mercurio and Santa entered the garage.

At this juncture, it should be noted that Maloney -

was hever seen entering the garage nor did any

witness ever place him near the garage.

When Viihoti opened the door in response to

the agents, he was immediately arrested as were

‘Mercurio and Santa.

In the back of the a was a large number

of cartons which were part of the shipment stolén

from Crown Drug Stores.

‘At least an hour later, while the three men were

still being held in custody in the garage, appellant -

“Maloney, knécked on. the 8% rage door and was

ica ol arrested,

A search of his person found him in possession

of lists of items in his own handwriting which

were somewhat similar to gaghes of lists found é

in the garage under a carton.!

The lists detailed items which allegedly had

been in the hijacked trailers, but which supposedly

had been removed from the garage. In other

words, none of the items on Maloney’s lists were

actually’ found in he ph

Maloney” s lists also had prices hext to them

representing their’ costs, but an examination of

this exhibit will reveal to this court that the prices

could not- have been written in Maloney’s hand-,

writing. — °

In addition, Maloney was found in-possession *

of the sum of $3,100.00 in cash. One-half the |

value of .the merchandise represented on the

lists came to $3,120.09. |. . .

The governments theory was that Maloney

had intended to buy these items. There was _ no

evidence of this, only a surmise.

Obviously, since he was-arrested the moment

_ he knocked on the garage door, he had no oppor-

tunity. to make any purchase at all.. Moreover

there was no evidence that he had ever received

or purchased or possessed any of the items that

-werc : ‘stole n.

At most, there was an anticipatory inference .

that had Maloney been given the opportunity, he

1. The Court of Appeals. said they were “carbon onpien”, but a

comparison wae, we believe, reveal differences.

might have negotiated to purchase some of the

items. This however was pure conjecture.

The theory of the government was that since

Maloney had possession of these lists, even though >» —

it conceded that_none_of the items-thereon were

_foundin-thé garage, that Maloney must have at one

time received them. There was no evidence to

substantiate. this theory since it rested upon an

inference. not based upon any tangible evidence. ~

‘ In the final analysis, therefore, . the record is

. barren of any evidence tending to show that

Maloney was in conspiracy with anybody; nor that

he hid supplied, purchased, received or otherwise

dealt in the goods which allegedly were stolen

. in. interstate commerce; nor that he had in any

a’ a ieee acrime. 4 —

At the sory aneel, the jury might-have inferred

.that Maloney came to these premises with the

- intent to purchase certain items, but since he

was arrested the moment he knocked on the door,

and tbe other persons were already in custody,

it is obvious that he*had no opportunity to even

attempt this crime and this, too, therefore eee *

be wholly speculative.

“

»

>.

eA NATE SP EO REE SG. NES NS OO

Argument

Point 1.

‘THERE WAS NO EVIDENCE WHATSOEVER

THAT -PETITIONER MALONEY EVER BOUGHT,

SOLD, RECEIVED. OR OTHERWISE -DEALT IN

THE PROPERTY WHICH WAS FOUND IN DI-

MENNA’S GARAGE. ON THE SAME EVIDENCE,

TWO CO-DEFENDANTS HAD THE INDICTMENTS

DISMISSED BY THE COURT OF APPEALS. THE - ;

COURT BELOW HAS PERMITTED ACONVICTION

TO STAND: WHICH IS PREDICATED UPON NO

EVIDENCE WHATSOEVER. THE CONVICTION

IS SANS DUE PROCESS. |

The Court of Appeals has reversed all of the.

- judgments of conviction with respect to the con-

spiracy which was. charged in ‘this indictment,

and also has reversed the substantive conviction

for a violation of 18U.S.C.-§659 as to areata

Mercurio and Santa.

-We submit that the. conviction herein is a

denial of due process of law because it. rests. -

_exclusively upon inference ‘based upon conjecture

‘ and not upon any evidence whatsoever. |

At the outset, it cahnot be disputed that Maloney

was never seen in or near DiMenna’s garage prior

to the ted that he was —— ; é

On the date of his arrest by the authorities,

the other three co-defendants had been taken into

custody at least an hour previously-and were being

held captive by the authorities inside the garage:

The agent who had effectuated the arrest stated

that he would have taken into custody any evnmen

not a pelice officer, who may have . knocked on

the garage door that di iy.

There were-items conti tinedih the garage which |

allegedly had been stolen from Q shipment which

the government claimed movedin interstate com-

merce at onetime — es ad

h The Only evidence against Maloney, therefore,

was certain lists itemizing sundries, cosmetics

and the like. which supposedly were of the same

nature’ as those which had been stolen from the

Crown Drug Company in New Jersey.

‘It is extremely important to note that the

lists found in Maloney’s ‘possession were not

. identical to the inventory of the items stolen,

but rather were generically similar -because the

items were similar. On page 9 of their brief in

the Court of Appeals, the governnient admitted

that there was “no proof that he (Maloney) bought,

received or possessed the goods remaining in the

garage.

The _ government argued however that there’

was ‘evidence that he had bought, received and’

poSsessed goods which had previously been re- 7

moved from the garage.

There is absolutely no -evidence as to what.

goods were actually removed from the garage,

if*any, and certainly no evigence that Maloney .

removed them. : : ae

There was - absolutely no proof whatsoever that —

Maloney had participated in any way, Shape or

form in the removal, —— or other’ dis-’

a

™ 3. = * ~. »

PADRE A, LR EO RSP CUR Clete joo NK OR TELS.

| position of the goods which the government claimed

had previously been taken from’ the eenye*.

At most, the» government had a “hunch” Or.

Suspicion that Maloney was involved. In Baumboy

v. United States, 9 Cir., 24 F.2d 512, the Court

of Appeals stated that “even the guilty . -may not

be: — on suspicion alone.”

_ In Poldo v. United States,’ (9 Cir.) 55 F.2d

866, 869, the Court of Appeals also aptly asserted:

“Mere suspicion is not.enough; there must

be circumstances represented to the officers

through the testimony of their senses suf-

. ficient to ‘justify them in a good faith be-

. lief and that the defendant had violated

° the law.”

“In essence, the prosecution has created a

“presumption of guilt” rather than attempting.

to argue his case based upon the presumption of:

innocence prior to verdict. a

- Ironically, in the case of the co-defendants,

Santa and Mercurio, the Court of Appeals declared

(slip opinion p. 895): °

“It is well -settled that in order to justify

a conviction for receiving or possessing

stolen goods under 8659, the government

‘must establish. that the defendants exer-

. cise ‘dominion or cofftrol’..over the goods.

In United States vy. Kearse, 444 F.2d 62

_ (2d Cir. 1971) this court recently held

that a.defendant’s mere presence six feet

away from 40 cartons of stolen merchan-

x.

Pon

10

disé, ... was insufficient basis to warrant

a conviction for possession under the statute.”

Notwithstanding its own language concerning

the co-defendants, the court nevertheless applied.

a completely different doctrine’ with respect to

the petitioner herein. 2

We submit also that an examination of the

exhibit containing the lists which were found in

the possession of. Maloney, will reveal that the

prices were in a different handwriting. Even

if this had ‘not been the case however, how in

the..world can there be an inference of guilt

efrom the mere possession of such. lists when

admittedly none of -the items contained. in the

garage were on the lists? ‘The government merely

surmised that because some items allegedly had

been removed, that Maloney had removed them.

’

There was absolutely no evidence of this!

What happened in the case at bar, is that the

government “suspected” -that Maloney had been

involved, but failed completely to produce proof

of this - fact. In McMillian_v. United States,

(5 Cir..1968) 399 F.2d 478, 479, the Courtof _

‘Appeals quite aptly declared that proof must be

‘ of such probative force as to lead with reasonable |

certainty to the inference of guilt and must do

more than create a mere suspicion.

2..Sinece Maloney received a seven year sentence, the error is_ \

very grave, : ’

- = e

3. Only Di Menna was seen removing cartons.

—

e.2

3 Se coNeNtep gece cea a, AyD cise A SER

a © :

Ma:

It is incredible that a Court of Appeals could

have come to the conclusion that the evidence

was insufficient: as to the co-defendants Santa

and Mercurio who were found inside the premises

when arrested,- and who had been seen near the

premises previously and yet determine that there -

was enough evidence against the petitioner.

We defy the government. to point out sngthhig

.in the record that supports. their supposition that _

petitioner herein in any way, shape or form re-

ceived or in any other way, dealt with the mer-‘

chandise which the government claims had been

previously removed from the garage.

Certainly the petitioner had never been found

in possession or. in-control of any of these items.

Point Il.

- THE PETITIONER WAS DEPRIVED OF. DUE

PROCESS OF LAW SINCE HIS'‘CONVICTION WAS.

BASED ON..A TOTAL. DEARTH OF EVIDENCE.

NO WITNESS TESTIFIED TO ANY OF THE FACTS

CONNECTING MALONEY WITH THE CRIME

'~CHARGED EXCEPT THE ARRESTING OFFICER

WHO MERELY OBSERVED MALONEY FOR THE |

VERY FIRST TIME WHEN HE KNOCKED ON THE

DOOR OF THE GARAGE. POSSESSION OF LISTS

CONTAINING NONE OF THE ITEMS IN THE

. . GARAGE WAS NO EVIDENCE OF GUILT.

It is respectfully submitted that due process.

of law was éviolated in connection: with the.con-

viction in this case. The Court- of Appeals.

_ reversed the convictions of two of the_co-.

defendants, Santa and Mercurio, on the grounds -

‘a total lack of evidehce. ~All of the defendants

including the petitioner herein, received a Tre- ~~

versal with respect to the conspiracy count..

lo i 9 ‘; = =e

It is respectfully submitted that there was no .

‘evidence tending to connect petitioner with the

substantive count of receiving or possessing the

_ alleged stolen items. In the preceding point,

* we have already noted the total dearth of evidence

implicating Maloney.- In Coppedge v. United

States, 369 U.S. 438, the Supreme Court of: the

United States explained and cautioned:. sa at 449):

“When society. ‘acts to deprive one of its

‘members of life, liberty or property, ° i$”

takes its most awesome Steps. No general ©

respect for, nor adherence to, the law as”

a whole can well be expected without need

_ for-profnpt, eminently fair and sober criminal

~~ law procedures... The methods ‘we employ: —

in the enforcement of our criminal law have .

aptly been aalled measures by which the

quality_ of our civilization may be judged.”

In Hegwood v. Kindrick (967, DC Tex.) 264

F. Supe. 720, 7.26 the court anne ey emplaingd:

“Any proceeding by which a United States

citizen, regardless of age, is deprived of

his liberty musf be conducted in accordance

with due process of law. This is true

regardless of whether the proceedings are

characterized. as civil or’ criminal and

irrespective of any additional rights de-.

rived in the sections of the Constitution?

. . In order to’ determine whether a par-

Ps)

ae

eae ee gee 13

ticular individual has been duncwed of his

liberty wit out due process of law, the court.

must measure’ ‘the procedurés in each‘case _

against our traditional notions of funda-~

mental fairness and-fair play... a .

“In effect there has been a prequhption of guilt

employed in the case at bar not the required

— of innocence.

Conclusion

The Petition should be granted. The judgment

of conviction should be reversed and the indictment

dismissed,

=“

_ Respectfully submitted,

IRVING ANOLIK , ,

nth Attorney for Petitioner

‘

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APPENDIX

Opinion of the Court Below m

UNITED STATES COURT OF APPEALS ~

| For THE Secoxp Circvrr

—— -—-o-r

Nos. 202, 291, 37, 358—September Term, 197.

(Argued November 17, 1971 Decided December 10, 3971.)

Docket Nos. 71-1766, 71-1779,

. 71-1827, 71-2013

~ ~—-_-

- > -

U xiter States of AMERICA,

A ppellee :

—against— '

d Rrpo.eu Vitnotti, Vixcent Santa, eg

ALBERT Mercrrio and Jons Matoxey,

Defendants-Appellants.

Before:

. Moorr, Hays and Mriumasx, €

= Circuit Judaes. :

——— —-_—~—»> >

Appeal from jndgments- of conviction entered after. a

joint jury trial in the United States District Court for the

Southern District of New York, Harold R. Tyler, Jr., Judge,

for violation of 18 U.S.C. (659 and $2 (possession of chat

tels stolen from an interstate shipme nt) and 18 U.S.C. 6371-

(congpiracy).

Affirmed in part and reve ‘rsed in part.

——

~

-... °

Opinion beac: aa

* Joti W. Nieuos, dr. Assisfant United States

Attorney, New York, N. Y. (Whitney North

Seymour, Jr., United States Attorney, Wil -

liam -B. Gray,~Assistant United States At-

terney, New York, N. Y.; of counsel), for °

Appellee.

Tromas Day Epw ARDS, New York, N. Y.,- for

" e | Appellant Vilhotti.

Jenowe, Lewis {Thomas R. Newman, Benjamin .

He Sif, of counsel), for Appellant Stata.

@c stave HT, Newman (Evseroff, Newman & Son-

etishine, William Sonenshine, New York,

» N, Y., of-counsel), for “Appe Want Me reurio. .

iecese Axouik, New York, N. Y., for Appeltant

Maloney. -

4

e

”

Meiauicas, Circuit Judge:

Appellants Rudolph Vilhotti, Vincent Santa, Albert Mer-

curio and Jolin Maloney appeal from judgments of convie--

tion under count one of an indictment charging violations

of. 1s - S.C. 6: 59. and *2 (buying, receiving or having in

their possession chattels stolen from an interstate. ship- |

ment), and under, count two, violations of 18 U.S.C. 6371

(consp:ring to buy, receive or possess such chattels).

Judgments of conviction. were entered on July 12, 19714

after a five day joint jury trial béfore Hon. Harold R..

Tyler, Jr., United States District Judge in the Southern

District of New York. Sentence was imposed as follows:-

Vilbotti—five vears an cach count to run concurrently;

Santa—-four years on cach count to run concurrently; Mer-

_curio—three years on each count to run coneurrently; Ma-

loney. ss Ven years on count ous and five years on count

ee ae

. 7 Opinion

two to run concurrently: We reverse the convictions of

Santa-and Mercurio on both counts. We affirm the convic-

tion of Vilhotti and Maloney dn count one and reverse and

dismiss on count two. *

On Friday, March 21, 1969 two trailers loaded with ciga-

rettes and health and beauty aids were stolen from the

Crown Drug Stores Distribution Center in Cranford, New.

Jersey.” The trailers were completely. loaded aw aiting trac-"

tors scheduled to carry the goods to retail stores in Long

Island, New York.’ Five days later, on March 26, 1969 a

federal agent and New York City detectives, acting on a_

tip from an informant, commenced a surveillance of a ga-

rage on ‘Kast 972d Street in the Bronx which had been

rented by one DiMenna, ostensibly as a warehouse for a

construction business. At about 10:00 p.m., after a six hour

surveillance, the agents found that .the front door was

locked but by peering through a window were able to see

numerdus cardboard cartons marked “Return to SGC Cor-

- poration” (the parent corporation of Crown Drug Stores).~

* At 5:30 a.m. the next morning, DiMenna drove up in a car,”

removed some ofthe carton® and drove off. At abont 9:20

a.m. another car drove up, and Vilhotti, Mercurio and Santa

entered the garage. The agents found that the door was

still locked But gained entry when Vilhotti opened the door

‘from the inside. He was immediately arrested, and Mer-

curio and Santa were arrested inside the garage. In the

back of the garage was.a large number of cartons which

were part of the shipment stolen from Crown Drug Stores..

‘In addition, the. agents found labels which had heen Te-

-1- This cogstituted an effective delivery of the poods to the carrier, suffi-

cient to render the goods part of interstate commerce as required by the

statute. United States v. Gollin, 166 F.2d 123 (3d Cir. 1947), cert.

denied, 333 U.S. 875 (1948) :. see United States v. Beraer, 33s F.2d 485

(2d Cir. 1964), cert. denied, 380 U.S. 923 (1965): United States v.

Cousins, 427 F.2d ose, BR5 (9th Cir. 1970).

Opinion

moved from cartons stolen from a Connecticut terminal in

December, 1968.

About an hour later, while the three men were being

held in custody m the garage, appellant Maloney knocked | —

at the garage deer, Maloney wag promptly arrested,

searched and found in possession © lists of items, in his*>

own handwriting, which were carbo copies of lists found’

in the. garege under a.cartom. Tht lists, detailad’ items -

which had been in the hijacked trailers but whieh had

heen removed ‘from the’ garage. Maloney’s lists also had

prices next fo the items representing their. cost. These

items were totalled and/div ided in half. -The’ sum of $550

was added, making a total of $312009. The sum of "$3100

in cash was found in Maloney’s possession. as

The government’s:theory was that .DiMenna, who was

also indicted but died” before trial, was using the Bronx |

garage as.a storage place for zoods | from the hijacked

trucks. “There ‘was festimony that trucks were driven

into ‘the-garage almost daily, remained for periods of a

quarter of an hour te an hour and were then driven away.

There War no ev idenge te <upport the contention that

DiMenna was actually* operating a construction business,

PXCE pt that t there were a.few shovels and bags of cement

on the premise . “We

.

“We find lake evidence to support: Maloney’s convic-

‘tion as a principal under count one of the indictment. He

had .in his possession lists. of items which had been hi-

jacked and which the jury could have properly found were

taken to the Bronx garage and removed prior to the

March 27th arrests. His presence. at the’ garage that

morning with a large amount of money under the ¢ireum-

stances described, was obviously for the purpose of pay-

_ ing off on the basis of half the value of the stolen soods.

TI® presence of daplicate lists in the garage in his hand-

writing further supports the government’s case that Ma-

fs

ee

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' Sa

Opinion

-

oe

loney had .bought, received or possessed’ goods which had

been stolen in interstate commerc 2.

The government’s case against Santa and Mercurio is

based solely upon their presence in the garage on the.

morning of their arrest. Santa testified that Vilhotti,

‘whom he had previously_ known, suggested to*him that

DiMenna hada construction..jgb and. would need extra

Saturday help. He met Vilhotti by ‘arrangement at a

Bronx restaurant that morning ‘and there met Mercurio

for the first time; he also stated that: he was looking for

extra work from DiMenna. After arfiving at the garage .

the three were arrested within a matter of minutes and .

all were-at least a hundred feet away from the rear of’

the garage “where the stolen cartons were lodged. There

is nothing in the record to establish that either Santa or

‘Mercurio was ever in or near the garage before that day.-

There is no evidence at all that they exercised any do-

minion or control over any of the contents of the garage .

or that they, in fact, even knew that the. garage contained

‘stolen property. In essence, the government’ S- contention

is that their presence alone is pemnian to establish know-

, ing possession. .

We hold that the mere presence , of Santa and Meveurio .

in the garage fs insufficient as a matter of law td estab-

jich either actual or constructive possession. it is weéll

settled that in order to justify a conviction for receiving

or- possessing stolen goods under Section’. 659, the gov-

ernment must establish that the defendants exercis@d “do-

minion or control” over the goods. United States vy. Casa-

—— F.2d 207, 209 (2d Cir. 1965). In United States

. Kearse, 444 F.2d 62 42d Cir. 1971), this court recently

held that a defendant’s mere présence. six feet away from

forty cartons of stolen ‘merchandise, which practically

filled -a small living room. was an insufficient basis to

warrant a conviction for possession under: the statute.

aa : eo

=

6a

Opinion

The government cites no contrary authority. In addition

to the numerous cases cited.-by Judge Moore in United

States v. Casalinuovo, supra, 350 F.2d at 209-10, we further

yefer t6” our recent Opinion in ‘United States v. Steward,

Slip op. nos. 239-40, (2d Cir., decided Nov. 29, 1971) hold-

ing that a defendant’s mere presence as the driver of an

automobile, which carried, a passenger who had possession

of drugs, was insufficient to attribuate possession to him.

Here there is a total absence of any evidence to establish a -

nexus between Santa and Mercurio and the theft or the.

garage “drop.” Their momentary -presence prior.to ar-_

rest is legally, insufficient, to establish’ any degree of

‘knowledge in the absence of which there can be no do-

minion or- control. See United States v. Romano, 382-U.8.

136 (1965). The absence of any evidence, apart from their

“mere presence, to support. the government’S contention that

Santa and Mercurio knew that the stolen. goods were in~

thé garage, similarly requires. a reversal of their convic-

tion on the conspiracy count. The evidence establishes

*- only that they were acquainted with Vilhotti and possibly ,

‘Maloney, but this is clearly insufficient to sustain a con-

spiracy conviction. United States vy. Euphemia, | 261 F.2d

‘441 (2d Cir. 1958). .

The case against Vilhotti however is buttressed by other

fades which - properly’ warranted the jury verdict of

guilty on the substantive count. Vilhotti was seen. two or

three times a week in the. immediate vicinity of the gar-

age; he w as seen going int the garage; he was’seen with

,DiMenna. The jury could have properly found’ that the

* garage was: locked when Vilhotti entered on the morning

_ of the arrést and that: he must: have had a key.. In view of

the purposes for,which the garage was obviously utilized,

the jury could also have found, beyond any reasonable -

doubt, that Vilhotti was engaged in the crime of know-

held that a conspiracy to viola

\ \ , . TEIN aa . i ig ESTE ESB STR NRL TIE AN Ec GN Ree RA

\ , : Se.

~~

7a

Opinion

ingly receiving goods which were stolen in interstate com- .

-merce. He was clearly not casually or fortuitously present.

Our reversal on: the conspiracy counts ,of Vilhotti and:

Maloney -is based not upon an insufficiehey of the evidence -

but upon the refusal of the trial court, as requested by

counsel, to charge the jury that in order to eonvict for °

conspiracy,*they would have to find that the defendants

not only knowingly’ bought, received or possessed goods

‘which were ‘stolen but that the defendants knew that they,

were stolen from interstate, commerce. The government

concedes that. the eases in this: Cireuit have uniformly |

. Section 659 and similar

statutes requires: the’ specific intention to buy, receive or

possess goods which defendants knew were stolen from ~

interstate commerce. ./The cases in this ircuit which have

so held are manifold: United States v. Crimmins, 123 F. 2d

271 (2d Cir. .1941) (conspiracy to transport stolen secu-

rities in interstate commerce) ; United States v. Bollenbach,

147 F.2d 199, 201-02 (2d Cir. 1944), rev'd on other grounds, '

326 U.S. 607 (1946) (conspiracy tor fransport stolen secu-—

rities in interstate ecommerce) ; United States v. Sherman,

171 F.2d-619, 624 (2d Cir. 1948), cert.-denied, 337 U.S. |

931 (1949) (conspiracy to steal and receive goods ‘in inter-

. state commerce) ; United States ¥. Tannazzo,, 174 F.2d 177;

180 (2d Cir.), cert. denied, 338 U.S. 815 {1949)e (conspiracy

‘to cause stolen goods to be transported in interstate- com- -

merce) ; United States v. Smolin, 182 F.2d 782, 786 . (2d

Ce. 1950) (conspiracy to possess goods knowingly stolen’

while in interstate commerce) ; United States. v. Giuliano,

348 F.2d 217, 221 (2d Cir.), cert. denied, 382 U:S. 946 (1965) ES

(conspiracy to tr ansport stolen securities. in interstate com-

merece).

We are teld on appeal by the government. that these |

eases were wr ongly decided ane should be overruled. While |

et ae ee Opinion

we ean understand the interest in the\government in facil-

“itating the conviction of éonspiratérs, we are riot at all

persuaded that the time has come to overrule a long line.

of cases which are admittedly controlling. wThe government

as |

urges, that while this intent may be necessary in order to |

, find a conspiracy to transport stolen goods across state ,

. lines (Crimmins, supra), no such intent should be necessary |

' in a conspiracy to receive stolen goods, and that Sherman,

ai - supra, is an- unwarranted extension of the Crimmins rule.

we.) However, both opinions were written by Judge. Learned

. Hand ‘and- in Sherman he explicitly based his decision on_

the Crynmins rule (United States. v. Sherman, supra, 171°

. F.2d at 623-24): = - es °

‘The fact that this specific intent is nat required for a

| ‘ egnviction of the substantive crime as it is for the con- -

= gpiraey, is not at-all unique in criminal law and is ‘sup-

— ported by reason. In United States :v. Crimmins, supra, .

123 F;2d at, 273, Judge. Learned Hand pointed out: “While |

one may, for instance, be guilty of running past &- traffic.

- light of Whose existence ohe is ignorant, one -‘annot be

a guilty < of conspiring to run past such a light, for one eammot’

agree to ren past a hight unless one supposes that there is ;

| alight to run past.” - oe kN

e 4 The only case the government relies on is United States \.

| : y. Roselli, 432 F.2d 879 (9th Cir. 1970), cert. denied, 401

U >. 924. (1971) which involved a eonspiracy to violate 18 __

U.S.C. ‘2814 (inter ‘state transportation of stolen securi-

- ties). Ww hile: that ease does hold that intent to transport:

~~ securities | in: interstate commerce is not egsential for con-

o - Vhe Sttictin betueen Hh gereral eriminal inllews necessary for the

" completed aet of monopolizations under Seetion 2 of the Sherman Act

and the “reef intent requisite for the inehcate attempt.or eonspiracy

: : ‘to monopolize was-again made clear by Judge Learned Hand in United

: States v. Aluminuia Co, of America, 148 F.2d 416, 431-32 (2d Cir. 1945)

; whieh wns decided just a few niths after his decisicn in Bnited States

v. Bollenbach, supra.

> i < ; -

. .

¢

e .

=e “

?

- " ’ , 9a iS #

z Opinion — _

: . e | &

Y- . > .

fion of a conspiracy and thus. is contra to Crimmins

‘shiish it does not ‘diseuss ) the court further found that

the defendant was.aware of the interstate activities in any

event. Id. at 893. Moreover, thé court .does cite Pereira v.

United States, 347 U.S. 1, 12-13 (1954) where the Supreme

Court’s discussion clearly assumes that an agreement to

j transport stolen property in interstate commerce is neces-—

sary in order to find a conspiracy to violate Section 2314.

In fact, in that ease the dissent of Mr. Justice Minton,

_ joined in by Justices Black and Douglas, is based on their

belief that the:government failed to establish this-element

_with respect to one of the conspirators. Id. at 14-15.2 .

The convictions of Santa and Mercurio are reversed and

dismissed. The: convictions of. Vilhotti and Maloney are

affirmed on the substantive count and reversed and dis-

missed on the conspiracy count.

———______— é ‘ '

3 The government's citation of United States v. Blassingame, .427 F.2d

329 (2d Cir, 1970), cert, denied? 402 U.S. 945,(1971) ; United: States:

,™: Kaufman, 429 F.2k 240, 245. (2d Cir.), cert. denied, 400 U.S..925

* (1970) and United States v. pagers 439 B:2d 854, 862 (2d Cir. 1971),

\ cert. denied, 40 U.S.L:W. 3162 (U.S. Oct! 12, 1971) ts not persuasive-at

all since the interstate intent Prue ssion .in each case involved the sub- -

stantive count and not the conspiracy. Tt ig conceded that.no sueh intent

ss necessiry Ser: the completed crime ufder Seetion 659, - |

.

6

Rudolph Vilhotti, Vincent Santa,

oan 10a

Order of the Court Below Denying Petition :

_ for a Rehearing But Granting Stay of Mandate -

_ T1-1766, 71-1779,

71-1827, 71-2013

UNITED STATES COURT-OF APPEALS

» SECOND: CIRCUIT

ee ee ee ee ee YS ee ee Xx

United’ States of America, *

~ Plaintiff- Appéllee,

er ee

*

Albert Mercurio, John Maloney, ;

Alexander Di Giacomo, Anthony

Di Menna T/N Salvatore Germani,

Defendants;

Rudolph Vilkotti, Vincent Santa,

Albert Mercurio and John Maloney,

. Defendants- ~Appellants,

A petition for a rehearing together with a

motion in the alternative to stay the issuance. of

the mandate pending applic: ation for a writ of

certiorari to the Supreme Court of the United

- States having been filed herein by. counsel for the

. a kainic ccna hia de |

Upon consideration thereof, it is

te

_ January 10, 1972. . ty

”* BF, ee : :

x Ila’ ait \

- Order of the Court.Below Denying srs:

P Sor a. . . 3

Ordered that said petition be and it hereby is

denied, as to- — granted as to stay of

“mandate.

‘ !

s/ Leon P. Moore

Leon P. Moore : P

s/ Paul R. Hays

Paul R. Hays

_s/ William H. Mulligan»

William H. Mulligan

— 1 BE Circuit Judges

| pauses

Order of the Court Below Affirming Part

and Reversing Part °

‘ITED STATES COURT OF APPEALS

for the

SECOND. CIRCUIT”

i Os ”

At a Stated Term of the United States Court of -

Appeals, in and for the Second Circuit, held at the

.United States Courthouse in the City of New York, :

on the tenth day of December one thousand nine’

“

«VW

_ hundred and seventy-one, ~

> fi e

> ¢ ®

l2a ‘

Order of the Court Below Affirming Part

Present: — Me ee e

HON. LEONARD P. MCCPE ut Te

HCN, PAUL R. ‘WAYS

HON. WILLIAM HUGHES MIL LIGAN

e He Circuit Judges.”

; ,[Same Title) |

Appeal from the United States District Court

for the Southern District of New York.

This cause cane dn totic heard nscript

of, record ftom the “United Stajes District Court

for the “Southern District ew York, and was

- argued by counsel. ee ee

.. §CON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that- the

judgments of said District Court be apd they -

hereby are reversed as to appellants Vincent

. Santa and Albert Mercurio but as to appellants _

Rudolph Vilbott and John Maloney said judgments .

be and they hereby are affirmeg in part and re-

wreed in part in accordance with the ee of

thts Court.

a To a s/ A. Daniel Fusaro

°.@ . Clerk