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United States v. Baker

decided: October 15, 1969.


Lumbard, Chief Judge, and Waterman and Kaufman, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

Edward Baker, Ralph Masciola, and Dominick DiNorscio appeal from their convictions for various offenses, all of which flow from a single truck hijacking committed on October 13, 1966.

The three appellants were among twelve defendants charged under a five-count indictment, filed March 1, 1967.*fn1 Count I of the indictment charged a conspiracy to steal motor-trucks containing interstate shipments, to transport the trucks and their contents in interstate commerce, and then to conceal and sell the stolen trucks and their contents in violation of 18 U.S.C. §§ 659, 2312, 2314, 2315; Count III, theft of a tractor-trailer containing an interstate shipment of women's garments in violation of 18 U.S.C. § 659; Count IV, kidnaping the driver of the stolen truck in violation of 18 U.S.C. § 1201; Count V, transporting the stolen truck and its contents in interstate commerce, in violation of 18 U.S.C. § 2314. Count II concerned another theft in which none of the three appellants were involved.*fn2

Baker was convicted of conspiracy and each of the substantive crimes. He was sentenced to concurrent terms of five years under the first and fifth counts and ten years under the third and fourth counts. Masciola, convicted of conspiracy, theft, and transporting stolen goods, received concurrent sentences of five years on Count I and seven years on Counts III and V. DiNorscio was convicted only of conspiracy, for which he received a sentence of five years imprisonment.

The government's principal witness was Roland Warren, one of the twelve defendants named in the indictment. Warren testified that a conversation with Joseph Roselli, another of the indicted defendants, led to his initial involvement in the hijacking. On the 10th or 11th of October in Kazam's Bar in Newark, Roselli told Warren that he knew some people who wanted a truck-load of clothing and asked Warren to steal another "load" from Gilbert Carrier Corporation. Warren, who had not received full payment for a previous hijacking in which he had participated,*fn3 was reluctant, despite Roselli's assurances that the people he knew were "pretty reliable." A day or two later on October 12, Roselli encountered Warren in the same bar and offered to introduce him to the people who wanted to obtain a load of hijacked clothing. Warren became interested and accompanied Roselli to the house of appellant Ralph Masciola in Newark, where he met Masciola, co-defendant Vito Panepinto, and one Danny, introduced as Masciola's "cousin." After Masciola asked Warren to "take another shot at Gilbert" and assured him that he would be paid this time, Warren agreed to the proposal.

On October 13 Roselli again met with Warren in Kazam's Bar and informed him that the hijacking could proceed at once. Accordingly, later in the day Warren recruited the two men who were to participate in the hijacking with him, appellant Edward Baker and co-defendant Ramon Comer. Early that evening Warren, Baker and Comer planned the details of the hijacking at a meeting with Roselli in a Jersey City diner. It was agreed that the truck would be stolen later that evening.

The hijacking proceeded according to plan. At about 11 p.m. on October 13, Arnoldo Medina, driver of a Gilbert tractor-trailer containing more than twelve thousand women's garments consigned to outlets in California, was forced to halt his truck at Washington and Perry Streets in Manhattan. As soon as the vehicle was stopped, Baker entered the cab of the truck, put a gun to Medina's neck, and ordered him to move out of the driver's seat. Warren then took the wheel of the truck and drove it through the Holland Tunnel to Jersey City. Comer followed in Warren's car. Upon reaching Jersey City, Warren and Baker locked Medina in another truck, then telephoned Masciola's house. After a brief conversation, they proceeded to the Club 36 in Newark, parking the truck nearby. A short time later they were joined by Roselli, Masciola and Panepinto; the entire group then moved to another bar where they awaited the arrival of the contraband purchaser. Eventually, an unidentified man arrived at the bar and gave Roselli $2,000, which he in turn paid over to Warren. Following the instructions of this unidentified individual, Warren drove the stolen truck to a "drop" in Passaic. Another unknown man, who joined Warren in Passaic, assured him that he would receive an additional $4,000 shortly.

When he failed to receive the promised additional payment, Warren telephoned Roselli the night following the hijacking. Pursuant to this conversation, Roselli and Warren drove to Passaic the following morning "to see about getting [their] money." Roselli parked the car and walked off. After a two-hour wait Warren became restless and went searching for Roselli. He found Roselli waiting for someone in a telephone booth. The man in the booth was appellant Dominick DiNorscio, whom Roselli introduced to Warren as Tommy Adams. DiNorscio told Warren that the load he had stolen was comprised largely of maternity clothes and therefore not as valuable as might have been expected. He also told Warren that it was difficult to dispose of this merchandise "at this time of the year," but that he would undertake personally to dispose of it if there were further delays. He then gave Warren $100, apparently in part payment for his role in the hijacking.


The three appellants present a full panoply of challenges to the validity of their convictions. For purposes of analysis, we shall divide the issues presented for review into three categories: first, objections raised by all three appellants to the admission and exclusion of evidence; second, the various challenges addressed to the validity of Masciola's and DiNorscio's conspiracy convictions; and, third, issues which pertain only to Baker.

Admission of Evidence


During a search incident to the arrest of Baker, FBI agents discovered and seized two guns, one of which was identified at trial as the gun employed by Baker in the hijacking.*fn4 All three appellants regard the introduction of both guns at trial as error. If appellants' assumption that the guns proved no more than general bad character were true, we would be compelled to accept their conclusion. See United States v. Johnson, 382 F.2d 280, 281 (2d Cir. 1967). But the two guns showed far more than general bad character or propensity to crime. Baker's possession of the guns proved that he was equipped to commit the very crime of which he was charged. For this reason the guns were relevant, and the ...

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