L. HAND, Chief Judge.
Sherman and Whelan appeal from convictions under counts one and three of the indictment here at bar; Gramaldi and Maimone appeal from convictions under counts two and three. The first count was
Sherman and Whelan, in company with several others, not including Gramaldi and Maimone, met in a saloon in Brooklyn, known as "Ponzo's Bar," on March 4, 1946, to agree upon a place where they could temporarily deposit some bales of duck canvas, which they had already planned to steal from a truck that was to carry them to the "docks" on the following day. On the fifth they seized and drove away the truck with the bales on board, while the driver had gone to a steamship office to secure from the carrier the papers which would evidence his delivery of the bales. Sherman and Whelan rode the truck to the agreed place, called "Paul's," unloaded the bales, and abandoned the truck. On the eighth Gramaldi and Oliva went to "Paul's," put the bales on another truck, and drove to a place called "Kaplan's" in Manhattan, where they, assisted by Maimone and another of the accused, called Mastromarino, unloaded and deposited them, and from where they were later disposed of. Oliva did not testify that Gramaldi and Maimone were present when the bales were stolen; or that Sherman and Whelan were present when they were delivered at "Kaplan's." However, if the jury believed his testimony, Sherman and Whelan were guilty of the theft and were indeed among the prime movers in the undertaking.
Sherman argues that this evidence, even though it might serve in a civil action, was not cogent enough to sustain a conviction; but this rests upon a misconception of the law. The question, whether a judge shall submit the evidence to a jury for a verdict, is no different in a criminal prosecution from the same question in a civil action; in each it is whether the evidence will rationally support a finding in favor of the party having the affirmative. The only added protection given the accused in a prosecution is that the jury must be satisfied of his guilt beyond a reasonable doubt. This we have held many times;
Concededly the second statement was not competent unless the admission of the impeaching statement made it so, for when Oliva made it he had the same motive to fabricate — the hope of lenity — that he had while on the stand.
It is true that, when the witness's testimony was not impeached, but only "aspersed" by the defendant's counsel, we held that the admission of such a corroboratory statement was harmless error,
Whelan's chief insistence is that the goods had not begun to move in foreign commerce. The evidence about this was that the sellers had labelled the bales with the names of the consignees and their addresses: "Mombassa, Kenya, British East Africa"; and had put them on the truck of a man, named Cohen, who had contracted to carry them to the dock where they were to be delivered to the steamship company. As we have said, the truck had come near enough to the dock for the driver to go after his receipt; but Whelan argues that, as the bales had not yet come into the possession of the carrier, they had not entered foreign commerce. His chief reliance is Coe v. Errol
Whelan's objection is without substance that the declarations of the other confederates after the theft should not have been admitted against him or Sherman. These were admissible because the jury might conclude that the theft included a successful disposal of the bales, and did not end with the deposit of the bales at "Paul's" on the fifth. For instance, when Westo told Oliva that Sherman and Whelan "were starting to take a load," it was information exchanged between confederates about the progress of the concerted enterprise, and a step in its performance. The judge apparently was much more guarded as to this part of his rulings than he need have been. It is not necessary to discuss the objection to joinder of the three counts; and the conviction of Whelan upon counts one and three will be affirmed.
Gramaldi and Maimone argue that there was no evidence to support the conclusion that they knew the bales were stolen when on the eighth they were taken to Manhattan from "Paul's" and delivered at "Kaplan's." Oliva swore that on the morning of the eighth he met Maimone at "Ponzo's Bar," and that Maimone told him that he had arranged for the receipt of the bales at a place on Eldredge Street in Manhattan — "Kaplan's." Oliva then went to "Paul's" where were Sherman, Whelan and several of the other accused. They discussed the removal of the bales to "Kaplan's" and one of them went out and fetched Gramaldi; who loaded the bales on a truck, drove it with Oliva to "Kaplan's," and there delivered the bales. As to Maimone, the evidence was plainly sufficient, conclusive indeed, if believed; for he arranged for the transfer to Manhattan. More may be said as to Gramaldi, who argues that he was only a driver called in for the occasion; but the surrounding circumstances were enough to satisfy a jury that he was aware that the transfer was sinister. The bales were labelled for export; they had been deposited in a most unlikely place and they were carried to, and left at, another such deposit. Why should honest men be shifting such goods about in so unwonted and furtive a fashion? And, even though this had not been enough, the jury could infer, from possession of stolen goods, knowledge that they were stolen. Gramaldi did not admit possession and seek to prove lack of such knowledge; instead, he relied on an alibi and also on character evidence, both of which the jury could, and presumably did, disbelieve.
On the other hand, it is possible that Gramaldi and Maimone did not know that the bales had been stolen while moving in foreign commerce; for they were not in the same position as Sherman and Whelan who stole the truck; and, although the bales bore a foreign address, they might not have yet started on their way. So far as concerns the second count — receiving — it was enough, if they knew that the bales had been stolen, for it was not necessary that they should also know them to have been stolen from foreign commerce.
Gramaldi's next objection is to the following passage in the judge's charge on the question of scienter under counts two and three: "We have a rule of law, which you could apply in this case, that one who possesses goods recently stolen is presumed to know that they have been stolen — not where they were stolen, he is not presumed to know that they are stolen from foreign commerce — but he is presumed to know that they were stolen." While we have held a number of times that the jury may find in the accused's unexplained possession of stolen goods enough evidence to convict,
Gramaldi's last ground for reversal is an improper comment of the prosecuting attorney, which came about in the following way. A witness for the prosecution, named Cohen, who had been the janitor at "Kaplan's," testified that he had been present when the bales were delivered on the eighth; but he could identify only Mastromarino, out of all the accused, as having been among those who took part in the delivery. The objection was that, when Cohen was leaving the stand, the district attorney said: "I am wondering if he needs an FBI man to take him home." None of the attorneys of the accused except Mastromarino's chose to cross-examine Cohen, from which it would appear that the others thought that his testimony had not injured them; and on the surface at least, it would seem that, so far as this occurrence affected anyone, it was only Mastromarino. Sherman and Whelan could not possibly have been affected, and it is only by a circuitous reasoning that it can be supposed to have concerned Maimone and Gramaldi. This reasoning would be that, although Cohen identified only Mastromarino, Oliva had testified that Gramaldi and Maimone were also at "Kaplan's" when the bales were delivered, and that they might be supposed to resent Cohen's testimony which by corroborating Oliva as to Mastromarino corroborated that part of his story which took them also to "Kaplan's." The district attorney's comment would on such an assumption be thought to suggest to the jury, not only that Mastromarino might vent his resentment against Cohen by violence for directly connecting him with the crime, but that Gramaldi and Maimone might do the same because of this indirect connection. This seems to us in any event to reduce to a phantom any possible prejudice to them; but, even if we are wrong as to this, the comment should not result in reversing their convictions. If the jury believed Oliva at all, these two men were engaged in a venture of a kind which made it not impossible that they might molest witnesses who appeared against them. The comment could prejudice them only in case it lent credence to Oliva's story, and it seems to
Maimone's last point is that because the only evidence connecting him with receiving the goods showed him to be in Manhattan, he should have been indicted in the Southern District of New York. But he had arranged for the delivery at "Ponzo's Bar," and his appearance at "Kaplan's" was therefore the continuance of a joint possession which began in Brooklyn.
The conviction of Sherman on counts one and three is reversed and the cause remanded for a new trial.
The conviction of Whelan on counts one and three is affirmed.
The conviction of Gramaldi and Maimone on count two is affirmed; and their conviction on count three is reversed.