Mansfield and Timbers, Circuit Judges, and Gurfein,*fn* District Judge.
Appellants Arthur McCarthy, Salvatore DeLorenzo and John Komplita appeal from judgments of conviction entered upon jury verdicts returned January 19, 1972 after an eleven day trial before George Rosling, District Judge, in the Eastern District of New York, finding McCarthy guilty on one count of hijacking a truck containing tin ingots moving in interstate commerce and finding McCarthy, DeLorenzo and Komplita each guilty on one count of possession of the ingots knowing they had been stolen, in violation of 18 U.S.C. § 659 (1970).*fn1
On appeal, appellants claim, either separately or together, that evidence was improperly admitted to show that DeLorenzo participated in the hijacking of the truck although he was charged only with possession of the stolen ingots contained in the truck; that the prosecutor's comment in summation about McCarthy's failure to show a tatoo on his forearm to the jury violated his Fifth Amendment privilege against self-incrimination; that the prosecutor's summation in other respects exceeded the bounds of fair comment; that there was no probable cause for the arrest of Komplita; that the trial judge improperly charged the jury on the elements of constructive possession; and that the trial judge unduly interfered with the trial of the case.
The events leading to the indictment occurred during a six day period in February 1971. The essential facts, viewed in the light most favorable to the government, as they must be at this stage of the case, United States v. D'Avanzo, 443 F.2d 1224, 1225 (2 Cir.), cert. denied, 404 U.S. 850, 30 L. Ed. 2d 89, 92 S. Ct. 86 (1971), may be briefly summarized.
On the morning of February 19, the three appellants had a conversation with Paul White, Almando Pando and others at a store in Brooklyn. As soon as the appellants left, Pando asked White if he wanted to earn some money by driving a tractor-trailer truck from 39th Street and 3rd Avenue in Brooklyn to Manhattan. White agreed to do so. He was driven to the location of the tractor-trailer.
Also on the morning of February 19, approximately 440 tin ingots valued at $70,000, which had just arrived from Malaysia by ship at the Brooklyn water-front, were loaded there onto a tractor-trailer which was driven away from the loading area about noon by one Albert Uphouse. When Uphouse stopped at a red traffic light a few blocks from the loading area, the door on the passenger side of the tractor was suddenly opened and appellant DeLorenzo jumped in. At gun-point, DeLorenzo ordered Uphouse to drive the tractor-trailer to 39th Street and 3rd Avenue. He did. At that intersection, upon further order of DeLorenzo, Uphouse got out of the tractor and got into the rear of a waiting car. Appellant McCarthy was behind the wheel of the car. DeLorenzo got in and sat next to McCarthy. The three drove around Brooklyn for about four hours. Eventually Uphouse was released somewhere in Brooklyn.
In the meanwhile, still on February 19, White arrived at the intersection of 39th Street and 3rd Avenue where the tractor-trailer had been left by Uphouse at DeLorenzo's order. White drove the tractor-trailer by pre-arrangement to a parking lot in Manhattan where he disengaged the tractor from the trailer. The trailer was left in the parking lot. The tractor was driven by White to New Jersey where it was abandoned.
Four days later, on the evening of February 23, White arrived with a rented truck at the parking lot where the trailer had been left. There he met Pando who, after telephoning McCarthy, told White to return to the parking lot early the following morning. He did.
Early on the morning of February 24, White met Pando at the parking lot. They had a brief conversation with McCarthy and DeLorenzo who were parked in a Cadillac around the corner from the parking lot. Upon instructions from McCarthy, White and Pando returned to the parking lot and transferred about half of the tin ingots from the trailer to the rented truck. Later that morning, McCarthy returned to the parking lot. He told White to drive the rented truck containing the tin ingots to a smelter in Queens and to do so by following McCarthy's car in which he was accompanied by Pando and DeLorenzo. White did so.
In the meanwhile, also on February 24, appellant Komplita contacted the manager of the smelter at about 8 A.M. and was informed that the tin ingots could be smelted provided they arrived by 1 P.M. Komplita returned to the smelter at 11 A.M. and informed the manager that the truckload of ingots had arrived. When McCarthy's car, followed by the truck containing the ingots, arrived in the vicinity of the smelter, it pulled to the side of the road where Komplita was waiting. McCarthy, DeLorenzo and Pando talked with Komplita. Following this conversation, McCarthy directed White to back the truck up to the smelter where White and Pando, with the help of two employees of the smelter, began unloading the ingots.
At 11:35 A.M. on February 24, agents of the F.B.I., who had had the three appellants as well as White and Pando under surveillance that day, moved in and arrested them. White and Pando were arrested at the smelter. The three appellants were arrested about 20 feet from a diner near the smelter. After the arrests, one of the F.B.I. agents went to the smelter where he observed tin ingots in a large smelting kettle underneath which a fire was burning. Those ingots nearest the bottom of the kettle already were in liquid form. The other ingots later were identified as part of the load that had been hijacked five days before.
There of course was a great deal more evidence adduced at the two week trial. The foregoing summary, however, is adequate for an understanding of the rulings below. None of the appellants challenges the sufficiency of the evidence, except for Komplita's claim (discussed under section V below) that there was insufficient evidence that he had constructive possession of the stolen ingots.
DeLorenzo's chief claim of error on appeal is that he was prejudiced by the admission of evidence that he actually participated in the hijacking of the truck, although he was charged only with possession of the stolen ingots contained in the truck.
The short answer to this claim is that the challenged evidence clearly was admissible to establish one of the essential elements of the crime of unlawful possession of the stolen ingots, namely, knowledge that they had been stolen. It would be difficult to perceive evidence any more probative of knowledge on the part of DeLorenzo that the ingots had been stolen than evidence that he himself had participated in the theft of the truck and its contents. Under the settled law of this Circuit with respect to the admissibility of other-crimes-evidence, we hold that the probative value of the evidence that DeLorenzo participated in the hijacking outweighed its asserted prejudicial character. See, e.g., United States v. Bradwell, 388 F.2d 619, 621-22 (2 Cir.), cert. denied, 393 U.S. 867, 21 L. Ed. 2d 135, 89 S. Ct. 152 (1968), and authorities cited at 622; United States v. Deaton, 381 F.2d 114, 117-18 (2 Cir. 1967), and authorities cited at 117-18.
As for the claimed prejudicial character of the hijacking evidence, it certainly was no more prejudicial than evidence of kidnapping which we held in United States v. Barrett, 280 F.2d 889 (2 Cir. 1960), was properly admissible in a prosecution under this same statute, 18 U.S.C. § 659. Furthermore, while DeLorenzo's claim here does not involve the propriety of being tried or sentenced on separate counts of hijacking a truck and possession of its contents (as in the case of appellant McCarthy), we do note that we recently have upheld convictions under 18 U.S.C. § 659 on separate counts charging theft of a tractor-trailer containing goods moving in interstate commerce and unlawful possession of the same truck and its contents, United States v. Meduri, 457 F.2d 330 (2 Cir. 1972), as well as convictions on separate counts charging theft and possession of goods stolen from an interstate shipment, United States v. Cusumano, 429 F.2d 378, 381 (2 Cir.), cert. denied sub nom. Riggio v. United States, 400 U.S. 830, 27 L. Ed. 2d 61, 91 S. Ct. 62 (1970). See also United States v. Ploof, 464 F.2d 116, 119-20 (2 Cir. 1972); United States v. Vasquez, 468 F.2d 565, 566 (2 Cir. 1972). Clearly, had DeLorenzo been indicted for participating in hijacking the truck as well as for possession of its contents, he would not have been entitled to a severance on the ground that two distinct crimes had been charged. Nor would he have been in a position to complain if concurrent ...