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United States v. Mingoia

decided: April 21, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN MINGOIA AND HERBERT RICHMAN, APPELLANTS



Smith, Kaufman and Hays, Circuit Judges.

Author: Hays

HAYS, Circuit Judge.

John Mingoia and Herbert Richman appeal from judgments of conviction entered after a jury trial in the United States District Court for the Eastern District of New York. Appellants and ten others*fn1 were indicted for the substantive offense of causing a stolen check worth more than $5,000 to be transported in interstate commerce in violation of 18 U.S.C. § 2 (1964) and 18 U.S.C. § 2314 (Supp. IV 1965-68),*fn2 and for conspiring to cause the same check to be transported in interstate commerce in violation of 18 U.S.C. § 371 (1964). Mingoia was acquitted by the jury of the substantive offense but was convicted of conspiracy. Richman was acquitted by the court of conspiracy but was convicted of the substantive offense. Mingoia and Richman were both sentenced to three years' imprisonment, but Richman's sentence was suspended and he was placed on probation for three years. We affirm the convictions.

I.

The government sought to prove that appellants participated in a scheme to steal customers' checks from Orvis Brothers, a brokerage firm in New York City. The stolen checks were to be deposited in fictitious Orvis Brothers accounts and the proceeds withdrawn after the checks had cleared. One such check, which is the subject of both counts of the indictment, was drawn on an out of state bank, a fact sufficient to establish the statutory requirement of transportation in interstate commerce. Pereira v. United States, 347 U.S. 1, 9, 74 S. Ct. 358, 98 L. Ed. 435 (1954).

Two groups were involved in the scheme. The first group were to steal the checks from Orvis Brothers; the second group were to arrange for depositing the checks and withdrawing the funds. The evidence tended to connect Mingoia with the first group and Richman with the second group.

II.

Mingoia's Appeal

Mingoia contends that the evidence was insufficient to establish his participation in the conspiracy. He was implicated mainly by one Negri, an unindicted co-conspirator who testified that on February 17, 1967, Mingoia met with him and other co-conspirators at a Manhattan hotel. Several other witnesses also placed Mingoia at this meeting. Negri stated that they discussed whether the group who stole the first batch of checks should receive payment before they delivered additional checks, and that everyone, including Mingoia injected something into the conversation. Before the meeting was terminated, arrangements were made to meet the next day at a bar on Staten Island.

The meeting took place the next day as scheduled and Negri testified:

"And when we arrived * * * John Mingoia [was there] and we started discussing this thing again. But at this time they [Mingoia and his group] didn't have any checks, or the man hadn't shown up the night before, they would see him later in the day, and * * *

"Mingoia would see him later in the day and he would get the checks, and then we would get them in return."*fn3

Taking the view of the evidence most favorable to the government, as we are required to do, we hold that it was sufficient to establish Mingoia's guilt on the conspiracy count. See Glasser v. United States, 315 U.S. 60, 80-81, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Kahaner, 317 F.2d 459, 467 (2d Cir.), cert. denied, 375 U.S. 836, 84 S. Ct. 74, 11 L. Ed. 2d 65 (1963).

Mingoia contends further that even if there was sufficient evidence to connect him to the conspiracy there was no showing that he knew the checks would be transported in interstate commerce. However, actual knowledge that a stolen item will be transported in interstate commerce is not required to sustain a conviction for conspiracy to violate 18 U.S.C. § 2314. It is enough if defendant agrees to participate in a scheme which by its nature involves transportation in interstate commerce and such transportation actually occurs. See Nassif v. United States, 370 F.2d 147, 153 (8th Cir. 1966); United States v. Crimmins, 123 F.2d 271, 273-274 (2d Cir. 1941). The jury could find from ...


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