The opinion of the court was delivered by: BRYAN
In a three count indictment defendants Gastwirth, Effron and Rich and their codefendants Perrone, Goldberg, Manente, Wilson and LoBasso, were charged with (I) receiving and having in their possession woolen goods valued at more than $ 100 which had been stolen while moving as a shipment of freight in interstate commerce in violation of 18 U.S.C. § 659 and 18 U.S.C. § 2, (II) transporting such goods valued at more than $ 5,000 in interstate commerce knowing them to have been stolen in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2, and (III) conspiring to violate Section 2314 by transporting such stolen goods in interstate commerce knowing them to have been stolen in violation of 18 U.S.C. § 371.
Defendants Perrone, Goldberg, Wilson and LoBasso pleaded guilty to the conspiracy charge and there was severance as to them. The case was tried to a jury before me against the remaining defendants, Manente, Rich, Gastwirth and Effron.
A motion for judgment of acquittal on all counts by defendant Manente was granted at the close of the Government's case. At the close of the whole case motions for judgment of acquittal by defendants Gastwirth and Effron on the first count (possession of stolen goods under 18 U.S.C. § 659) were granted. Decision was reserved on similar motions by defendant Rich as to all three counts, and by defendants Gastwirth and Effron as to the second and third counts, and these counts went to the jury. The jury acquitted defendant Rich on the first substantive count (possession) and on the second substantive count (transportation), and acquitted defendants Gastwirth and Effron on the second substantive count which remained against them. The jury, however, disagreed as to all three defendants on the third count charging conspiracy to transport stolen goods in interstate commerce knowing them to have been stolen, the substantive offense charged in the second count.
All three defendants renewed their motions for judgment of acquittal on the conspiracy count on which decision had been reserved. These motions were denied on the ground that there was ample evidence in the record on this count to go to the jury.
Defendants Gastwirth and Effron also moved to dismiss the conspiracy count on which the jury had disagreed and defendant Rich made a separate motion to the same effect. These motions were upon the grounds that (a) in view of the verdicts of acquittal on the substantive transportation count, a re-trial of the conspiracy count would place defendants in double jeopardy, and (b) that the verdicts of acquittal were res judicata on the conspiracy count. It is these motions which are before me for decision.
The following facts are virtually undisputed:
On May 12, 1955, 224 bales of woolen cloth were shipped from Packard Mills in Webster, Massachusetts, destined for Cohen, Geiss & Warshaw, Packard Mills' exclusive agents in New York, and consigned to a New York warehouse. They were picked up at the Packard Mills plant in Webster by truck of the New England Transportation Company. The truck arrived at the terminal of that company in Maspeth, Long Island, sometime during the early morning of May 13 and was then to have been driven to the warehouse of the consignee in Manhattan. The truck was left by the driver some distance away from the terminal, and when he returned to pick it up it was missing. Several days later the truck was found abandoned in Brooklyn with all the bales of woolen goods removed. The thieves were not found.
The bales so stolen consisted of cloth of a variety of colors, with a price range in the wholesale market of from $ 2.85 to $ 3.75 per yard, or an average price of $ 3.30 per yard and were worth some $ 40,000 at these prices. Each bale was marked with a small metal tag sewn in the cloth bearing the name of Packard Mills, and also bore a yellow ticket or tag bearing the name of Packard Mills and Cohen, Geiss & Warshaw, exclusive agents, and stating the lot, style and bale number. The bale number was also marked on the bale itself.
On June 1, 1955 agents of the FBI discovered 216 of the 224 bales which had been stolen at the plant of Gastwirth Brothers, manufacturers of children's clothing, in Philadelphia. The defendants Gastwirth and Effron were the sole partners in this business.
The defendant Gastwirth claimed that he had purchased these goods on May 26, 1955 at his New York office from the defendant Rich, a jobber in piece goods who carried on a small odd lot business in New York and was a connection of Gastwirth or Effron by marriage. The price was $ 1.50 per yard. Gastwirth had the option of returning any goods that he could not use. He did not see the goods before he purchased them but only one small swatch of material shown him by Rich. Nor did he know the amount of yardage he was purchasing or the colors.
Gastwirth arranged with Rich to have the goods delivered to the Gastwirth Brothers plant in Philadelphia. It was originally contemplated that the goods would be delivered that night (May 26), and Gastwirth telephoned his partner Effron in Philadelphia to make arrangements to receive them. However, the goods did not arrive at the Gastwirth Brothers plant until the early morning of May 27 before the plant had opened. They arrived in what were described as rather shabby looking trucks with no identifying marks on them, accompanied by the co-defendants Perrone and LoBasso, both of whom pleaded guilty to the conspiracy charge. At about the same time the co-defendant Goldberg, who also pleaded guilty, and who testified for the prosecution, also arrived at the Gastwirth Brothers plant with the co-defendant Wilson.
Employees of Gastwirth Brothers, under the supervision of defendant Effron, were waiting to help unload the trucks. As the goods were unloaded the original wrappings bearing the name of Packard Mills' consignee, and the yellow mill tags bearing the name of Packard Mills and its exclusive selling agent, Cohen, Geiss & Warshaw, were torn off each bale. Employees of Gastwirth Brothers, who were assisting in the unloading under the direction of the defendant Effron, placed white tags on each bale containing the lot, bale and style number which had been on the yellow mill tickets. The goods were placed on the third floor of the Gastwirth Brothers premises and a tally was taken of the yardage by Goldberg, Perrone and their associates.
After the tally of the yardage had been taken at the Gastwirth Brothers plant, Goldberg or Perrone demanded that Effron pay the truckmen who had delivered the goods for their services. After talking with Rich in New York Effron paid the truckmen $ 100. Goldberg then demanded payment on account of the purchase price. By this time Gastwirth had arrived from New York, and after consultation with Effron paid $ 2,000 in cash to Goldberg, who refused a check, as a payment on account.
It was determined that some 82 of the 216 bales were of black cloth which Gastwirth Brothers could not use, and it was contemplated that these goods were to be returned to the sellers, and Rich was so advised. Gastwirth returned to New York after the ensuing Memorial Day weekend and, on May 31, 1955, pursuant to arrangement, paid an additional $ 5,846 in cash to Rich on account of the total purchase price of $ 12,846 based on yardage of the goods he was to keep at $ 1.50 per yard. Arrangements were made to pay an additional $ 5,000 in cash to Rich the next day in payment of the balance.
However, when Rich arrived at Gastwirth's New York office on June 1 to collect this sum the goods had already been found on the premises of Gastwirth Brothers by the FBI and FBI agents were already talking to Gastwirth. All three of the defendants on trial were then questioned by the FBI and they all made statements.
There was dispute as to the other facts. It appeared that Goldberg and Wilson had brought the stolen goods to the attention of Rich on May 26, and that Rich had immediately gotten in touch with Gastwirth for the purpose of selling the goods to him. Rich claimed that he had purchased the goods from Goldberg and Wilson. Goldberg, who testified for the prosecution, said that he and Wilson had brought the goods to Rich's attention at the request of Perrone, who had possession of them, and that Rich, with their help, had then arranged with Perrone to purchase the goods from him.
All three defendants on trial denied that they knew the goods were stolen at any time prior to the visit of the FBI to the Gastwirth Brothers plant on June 1. To establish that the defendants had such knowledge, the Government relied on circumstantial evidence, including the nature of the transaction, the manner in which it was carried out, both in New York and on delivery in Philadelphia, the low price paid for the goods in the light of the seasonal demand and the normal price for such merchandise, the manner in which payments were made, and similar indicia, as well as portions of the statements made by the defendants ...