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United States v. Carneglia

decided: October 30, 1972.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN CARNEGLIA ET AL., APPELLANTS



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

Author: Feinberg

FEINBERG, Circuit Judge:

Following a jury trial in the United States District Court for the Eastern District of New York, Jack B. Weinstein, J., appellants John Carneglia, Salvatore DeVito and Louis Inzerillo were convicted of possessing goods stolen while in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. ยง 659. Carneglia and DeVito were sentenced to five years imprisonment, Inzerillo to four.*fn1 Appellants individually and together assert numerous grounds for reversal, but as we find none of their arguments persuasive, we affirm the judgments of conviction.

Because consideration of the claims presented requires extended discussion of the evidence later in this opinion, a brief statement of the background facts will suffice at this point. On June 25, 1971, a tractor-trailer loaded with 414 rolls of doubleknit piece goods was hijacked shortly after its departure from Kennedy Airport en route to Dover, New Jersey. On July 8, 1971, following a tip by a confidential informer, teams of FBI agents and New York City police officers placed two "Hub" rental trucks under surveillance. Both trucks were located in Brooklyn -- one was parked in a service station ("the first truck"); the other was a short distance away in a vacant lot adjacent to a residence ("the second truck"). At about 8:30 A.M. on the morning of July 9, a Cadillac, in which appellants and one Anthony Russo*fn2 were riding, entered the service station. Following some activity by appellants Carneglia and DeVito in and around the first truck, the two returned to the Cadillac and drove away from the service station. The car was observed shortly thereafter by the team maintaining surveillance near the second truck. Here, too, Carneglia and DeVito left the Cadillac and spent several minutes in the vicinity of the second truck. They then reentered the Cadillac, which arrived back at the service station at approximately 9:25. Shortly thereafter, the first truck was observed departing the service station, driven by appellant Inzerillo. FBI agent Joel Moore, assisted by two New York City detectives, stopped the truck several blocks away on Atlantic Avenue, returned it to the service station, and proceeded to search it without a warrant. When the search disclosed piece goods fitting the description of the stolen merchandise (subsequently identified as belonging to the hijacked shipment), all three appellants were placed under arrest. A warrant was obtained to search the second truck, whose contents also matched the description of the stolen doubleknits.

I

Carneglia and DeVito both argue that there was insufficient evidence from which the jury could fairly conclude beyond a reasonable doubt, see United States v. Taylor, 464 F.2d 240 (2d Cir. 1972), that either of them had possession of the stolen goods and knew the same to be stolen.*fn3 We conclude that the evidence of possession and of guilty knowledge, although by no means overwhelming, warranted submission of the Government's case to the jury.*fn4 There was evidence that Carneglia arrived at the service station, immediately left the Cadillac, and walked over to the first truck. He turned and entered the gas station office, where he remained for several seconds; he then met momentarily with DeVito and Inzerillo in the station lot. DeVito climbed into the cab of the truck, where he remained for two or three minutes during which time the hood of the truck moved or rocked noticeably. Carneglia returned to the truck, looked into the cab, and shut the open door on the driver's side. The two then drove together to the second truck. Carneglia, after greeting a woman identified as residing in the adjacent house, got into the cab of the second truck and started it up. Carneglia and DeVito thereafter worked together for five or ten minutes on the tailgate, which was stuck in the down position.

From testimony which, if believed, established the foregoing facts, the jury could reasonably infer that Carneglia and DeVito had attempted to start or had started the trucks, that they attempted to repair the second truck, and that they accordingly contemplated some future personal use of the trucks. We need not decide whether these inferences support the ultimate conclusion that Carneglia and DeVito each had actual possession of the trucks, for the statute also reaches constructive possession, which we have defined as such a "nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant's dominion and control as if it were actual possession." United States v. Casalinuovo, 350 F.2d 207, 209 (2d Cir. 1965). The evidence here established that necessary nexus or relationship, and it showed considerably more than the "bare presence" condemned as insufficient in United States v. Kearse, 444 F.2d 62, 64 (2d Cir. 1971), and in other cases relied upon by appellants.*fn5 Cf. United States v. Massarotti, 462 F.2d 1328 (2d Cir. 1972).

Evidence from which the jury could infer appellants' guilty knowledge of the contraband character of the goods was also sufficient. We note our cases which hold that once possession is established, the "possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence." United States v. Minieri, 303 F.2d 550, 554 (2d Cir.), cert. denied, 371 U.S. 847, 83 S. Ct. 79, 9 L. Ed. 2d 81 (1962); United States v. Fried, 464 F.2d 983, 985 (2d Cir. 1972).*fn6 It is argued to us, as it was to the jury, that appellants were only innocently helping their friend Inzerillo with two balky trucks. Perhaps the jury might reasonably have accepted that view, but surely it was not required to. Whatever may be said with regard to the activity of Carneglia and DeVito at the first truck, their subsequent and purposeful visit, without Inzerillo,*fn7 to the second truck parked some blocks away strongly supported an inference that Carneglia and DeVito had prior familiarity with the trucks and their respective locations, and equally that they were familiar with the character of the contents. Moreover, Carneglia was observed, upon his return to the service station, to be turning his head rapidly from side to side; the jury might reasonably conclude not only that he was concerned about possible police surveillance or interference from innocent passers-by, but also that the reason for any understandable concern was his own knowledge that he was illegally trafficking in stolen merchandise.

II

Appellant Inzerillo attacks the validity of the search of the first truck on two grounds. He first objects to the district judge's refusal to require the United States to disclose the identity of its confidential informer. At the suppression hearing, FBI agent Good recounted information received from an informer who had previously provided tips leading to at least four arrests and convictions. From his personal knowledge, the informer described the contents of the hijacked shipment and stated that he had observed this merchandise on two "Hub" rental trucks. He specified street addresses at which the trucks were located and provided the numbers of the rental trucks. Inzerillo argues that refusal to disclose the informer's identity prevented any effective opportunity to test the existence of probable cause through cross-examination.

In United States v. Comissiong, 429 F.2d 834 (2d Cir. 1970), Judge Friendly carefully analyzed circumstances under which disclosure of informer identity is required and thoroughly reviewed the cases, beginning with Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). In Comissiong, we sanctioned non-disclosure where "the independent evidence, even though not adequate of itself to establish probable cause, constitutes a sufficient voucher against fabrication, although obviously not a complete one." 429 F.2d at 839. Here the agents testified that Carneglia and DeVito were known by them to be hijackers. Prior to any search, the agents had observed Carneglia and DeVito in possession of two rental trucks parked at different locations, with Carneglia showing considerable concern about possible surveillance. When apprehended in the first truck, appellant Inzerillo, to all appearances associated with Carneglia and DeVito, was unable adequately to explain how he came to drive the truck; nor could he provide rental documents for the truck under his control or any bill of lading for its contents. While these observations might not alone have constituted probable cause to search, they surely tended to establish facts and circumstances which would reasonably have warranted "the officers conducting the search . . . to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S. Ct. 1472, 1475, 20 L. Ed. 2d 538 (1968). Beyond independent evidence tending to establish probable cause, on-the-scene corroboration of key elements of an informer's tip serves as an additional safeguard against fabrication. "The idea of 'corroboration' would seem in the end to be one key to sound resolution of motions to suppress." United States v. Tucker, 248 F. Supp. 911, 915 (S.D.N.Y.1965), aff'd, 380 F.2d 206, 211 (2d Cir. 1967); see United States v. Colon, 419 F.2d 120, 121 (2d Cir. 1969) (per curiam). Prior to the search of the first truck, the agents were able to corroborate certain critical details of the informer's story, including the identity of the trucks and their locations. Judge Weinstein thus did not err in refusing to require disclosure of the informer's identity or in refusing to examine the informer in camera.

Inzerillo further argues that, even with probable cause, the warrantless search of the first truck after it had been removed from the highway and returned to the service station was improper and that the fruits of the search should have been suppressed. Inzerillo claims that under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), there has to be a "constitutionally significant" reason for not obtaining a warrant, and there was none here. The Court in Coolidge phrased the inquiry somewhat differently. At 403 U.S. at 463 n. 20, 91 S. Ct. 2022, 29 L. Ed. 2d 564, it emphasized that in considering the warrantless search of a vehicle stopped initially on the highway and subsequently searched in a different location, the basic question is whether the "initial intrusion" by agents of the Government, here the seizure, was justified by "exigent circumstances" applicable to moving vehicles.

Turning then to the justification for the initial seizure of the truck without warrant, a distinction is invariably made between seizures and searches

of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and [those] . . . of a ship, motor boat, wagon, or automobile . . ., where it is not practicable to secure a warrant, because the vehicle can be quickly moved ...


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