Lumbard, Chief Judge, and Hays and Feinberg, Circuit Judges.
Appellant and codefendants Montalto, Rosa and Mahler were convicted, upon a trial by jury, of transporting stolen goods in interstate commerce in violation of 18 U.S.C. § 2314 (1964), as amended (Supp. IV 1965-68), and, together with codefendant Iacovelli, of conspiring in violation of 18 U.S.C. § 371 (1964) to violate 18 U.S.C. §§ 2314 and 2315 (1964), as amended (Supp. IV 1965-68). The convictions were based upon the shipment from Stamford, Connecticut to New York City of goods stolen from the Stamford plant of Clairol, Inc. See United States v. Evanchik, 413 F.2d 950 (2d Cir., July 16, 1969).
Appellant contends on this appeal that there was insufficient evidence to sustain his conviction, that the court erred in denying a codefendant's motion for a separate trial, that there were errors in the charge, and that the indictment was illegally obtained. We have considered the assignments of error and find no ground for reversal. The judgment of conviction is affirmed.
1. Sufficiency of the evidence.
The evidence established that Joseph Nuro, a co-conspirator who pleaded guilty, was one of a number of men who were systematically stealing goods from the Clairol plant. Nuro was approached by the codefendant Rosa, who suggested the theft of the goods from the original thieves. Agreement was reached, the goods were stolen and transported by rented truck to Brooklyn, where they were delivered to the codefendant Mahler for sale and distribution.
The truck in which the stolen goods had been transported was parked in Brooklyn. A few days after the theft Nuro and Rosa drove from Stamford to Brooklyn in a car rented from a garage in Brooklyn. When they reached Brooklyn they met appellant who returned the car in which they had driven from Stamford to the rental garage. Nuro and Rosa took the truck back to the garage in Connecticut.
About a week later appellant took part with Nuro, Rosa, and the codefendant Montalto in a meeting at the 1717 Club in Brooklyn, where payment for the stolen shipment was discussed. Because Mahler did not appear appellant told Philip Travers, a codefendant who was acquitted, to call Mahler's wife to find out where Mahler was. Appellant later assured Nuro that Mahler could be trusted and that they would be paid; they were paid several days later. Thereafter appellant and Mahler traveled to Connecticut to discuss stealing another truckload of Clairol products, though nothing came of that plan.
From this evidence the jury could find not only that appellant was involved in the same conspiracy in which his associates were so clearly involved but also that he had participated in the illegal interstate transportation of stolen goods. The fact that at the time of the theft appellant resided in Brooklyn, where Mahler lived, and knew Mahler, and that he had previously resided in Stamford, where Rosa and Nuro lived, and knew Nuro, supports the inference that appellant was the contact between Mahler on the one hand and the Stamford people on the other. And the evidence that appellant engaged in the subsequent discussion in Stamford about stealing another truckload of Clairol products supports the conclusion that he had participated in the initial conspiracy and theft.
Viewing the evidence, as we must, most favorably to the government, see United States v. Marchisio, 344 F.2d 653, 662 (2d Cir. 1965), it is sufficient.
2. Motion for a separate trial.
Just prior to the date on which the trial was scheduled to begin in Bridgeport, Nuro, who was to be the main government witness, was shot. Rosa was indicted for the crime.
The trial was thereupon postponed for two weeks and transferred from Bridgeport to Hartford.
During the voir dire examination of the prospective jurors, one of the veniremen (who was ultimately excused), in response to the court's question whether he had heard of "an incident that occurred to a witness in the so-called Clairol case," responded: "I think I heard -- I'm not sure -- I'm not even sure it's the same case, but it seems as though somebody had been shot, but I don't know if that's the same case." After the jury had been empaneled a codefendant moved for a separate trial, urging that the venireman's statement, made before the entire panel, coupled with the physical presence of Nuro, whose arm ...