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United States v. Purgatorio

decided: May 28, 1969.

UNITED STATES OF AMERICA, APPELLEE,
v.
FRANK DEL PURGATORIO, APPELLANT



Lumbard, Chief Judge, Moore and Friendly, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

Frank Del Purgatorio (appellant) appeals from a judgment of conviction by jury verdict. He was tried on only two counts (Counts 19 and 24) of an indictment containing 37 counts against 17 defendants. With him was tried Jose Marrero charged with conspiracy (Count 19) and with the possession (Count 23) of merchandise stolen pursuant to the Count 19 conspiracy. Count 19 alleged a conspiracy commencing in July 1964; Count 24 a conspiracy commencing in September 1964; each continuing to the filing of the indictment (July 1965). Appellant was convicted on both Counts 19 and 24; Marrero was acquitted on Count 19 and convicted on Count 23. Marrero does not appeal.

Appellant asserts five points of error, (I) inadequate evidence of guilt, requiring the granting of the motion for acquittal; (II) introduction of testimony of Frances Wieseltier, an unmarried lady being kept by appellant; (III) introduction of a conversation between appellant and a co-conspirator antedating the conspiracies by almost a year; (IV) introduction during the Government's direct examination of the co-conspirator that he had pleaded guilty; and (V) the joint trial with Marrero.

The evidence was sufficient for jury resolution, the testimony objected to properly received; and the joint trial justified. Therefore, the judgment of conviction is affirmed.

The Indictment

Count 19 in substance charged appellant, Betancourt, Marrero and four others with a conspiracy to steal goods from motortrucks in interstate commerce and to have such goods in their possession. 18 U.S.C. ยง 659. The conspiracy was alleged to have commenced in July 1964.

Count 24 charged appellant, Betancourt and two others, plus a co-conspirator not indicted, with the same unlawful activities.

Count 23 involved only Marrero and was for the substantive offense of unlawful possession.

I. The Evidence

The appellant contends that the evidence of two isolated sales is insufficient as a matter of law to sustain the convictions of conspiracy. The testimony and evidence at trial disclosed the following facts about the alleged conspiracies.

In late 1963 appellant purchased some stolen children's clothes from Betancourt, who was a hijacker of merchandise. At this time appellant indicated to Betancourt that he was interested in any future transaction and gave Betancourt a telephone number (the "DA 8" number) to call when he had more goods to sell.

In July 1964 Betancourt and an accomplice hijacked a truck in interstate commerce and the same day drove it to a store in Manhattan where they tried to sell its contents. These efforts proved unsuccessful. After storing the goods in New Jersey, the next day Betancourt called appellant at the number appellant had given him in late 1963 and inquired whether he was interested in purchasing some merchandise. Appellant expressed interest and thereafter purchased goods valued at approximately $400, paying Betancourt $90. Marrero also purchased $600 worth of goods from the same hijacking for $160. Some of the stolen clothing was discovered in Marrero's store in January 1965, and Marrero admitted that he had purchased this clothing from Betancourt. These facts constituted the basis for Count 19.

In September 1964 Betancourt and a different accomplice were successful in hijacking another truck in interstate commerce and in due course contacted appellant at the "DA 8" telephone number he had called in July. Appellant again purchased $400 worth of merchandise, ...


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