Friendly, Chief Judge, Feinberg, Circuit Judge, and Holden,*fn* District Judge.
Richard Baum and Joseph Scapoli appeal their conviction, after trial by jury, of criminal possession of Panasonic radios stolen from a foreign and interstate shipment of freight, knowing the same to have been stolen, in violation of 18 U.S.C. § 659. The trial began on July 17, 1972 in the Southern District of New York, Judge MacMahon presiding. The evidence was completed and the cause submitted on the same day. The jury returned its verdict the following morning, finding the appellants guilty. Their co-defendant Stuart Fields was acquitted.
On November 12, 1971 a ship's container, holding approximately one thousand cartons of Panasonic radios, was stolen from the Hoboken, New Jersey terminal of Smith Transport, an interstate carrier. The container included five different models of radios manufactured in Japan by the Matsushita Electric Company, under the trade name Panasonic and ordered by Leeds Fox, a customer in New Jersey. The models in the ship's container were designated as R-70, R-1241, RC-7021, RE-7670 and RF-951.
Fields and Scapoli were business associates. They operated a radio, tape and record shop known as The Royal Rhythm No. 1 Record Shop, North Main Street, Yonkers, New York. They also operated another store known as The Music Man. Fields and Scapoli were retailers and distributors of Panasonic radios.
About five o'clock in the afternoon of November 12, 1971 an unidentified tractor trailer unit was halted near the front door of the Royal Rhythm store in Yonkers. Keith Lurkens, a government witness at the trial, arrived to pick up his girlfriend, who was employed at the Royal Rhythm. Lurkens was requested by Fields and Scapoli to assist them in unloading "a couple of packages" from the truck. The witness complied and during the next hour aided in the removal of fifty or sixty cartons, bearing the Panasonic seal, from the trailer to the store basement.
During the following week, on November 19, an agent of the Federal Bureau of Investigation observed two men, who were not specifically identified at the trial, arrive at the Royal Rhythm store in Yonkers. They proceeded to remove a number of cartons, bearing three of the model numbers and the Panasonic label, which corresponded with those in the stolen shipment. The boxes were loaded into a small van that was later identified as registered to Jaymie Records. After loading, the truck departed. It was followed by the agent. It proceeded from Yonkers to New York City and traveled on to the residence of one Fernando Gil, 5912 Xenia Street, Queens. The execution of a warranted search of the garage at the Gil premises the following day produced four cartons of radios, model RF-951, six cartons of model RE-7670 and forty-four cartons of model RC-7021.
On the next day the defendant Baum and another man, identified as Sam Bari, also known as Sam Cope, arrived at Royal Rhythm in a bronze Dodge Van. The vehicle was loaded with cartons bearing the name Panasonic, which included forty-five boxes, the model number 7021. Baum was taken into custody at the Royal Rhythm.
At about the same time agents of the Federal Bureau of Investigation executed a search warrant and recovered forty-four Panasonic radios from the Royal Rhythm store. The recovery included nineteen model R-1241, twenty model R-70, one RF-951, two RE-7670 and two model RC-7021. Further down the same street, other radios, which came from the Royal Rhythm store, were recovered.
In a telephone conversation with the defendant Scapoli, following the search of November 20, Special Agent Teel of the F.B.I. inquired about the source of the radios that were uncovered. Scapoli responded: "I won't kid you. I got the radios from someone off the street at a great price, and I have nothing to prove that I bought them."
A search of Scapoli's father's garage December 1, 1971 yielded 447 cartons of Panasonic radios model RC-7021, 22 cartons of model RF-951, along with several loose sets in models which corresponded with those that were the subject of the theft from the terminal at Hoboken.
The appellants join to challenge the convictions on two common claims of error. First, they contend that the evidence is insufficient to establish that the radios recovered from them were stolen. Secondly, it is urged that that evidence is insufficient to prove that either defendant knew the radios were stolen.
Conviction for possession of goods stolen from interstate shipment requires evidence of dominion and control of the property that was the subject of the theft. United States v. Kearse, 444 F.2d 62, 63 (2d Cir. 1971); United States v. Casalinuovo, 350 F.2d 207, 209 (2d Cir. 1965). The evidence is clear and undisputed that both defendants were in actual possession of various cartons of Panasonic radios that were of the same models as those contained in the shipment stolen from the freight terminal at Hoboken. Both defendants manually transported the property in the shipping cartons. The goods were seized at the Royal Rhythm, a store jointly owned and operated by the defendant Scapoli. Other cartons were recovered in the van registered to Jaymie Records, a business enterprise of the defendant Baum's association. The record presents substantially more than the mere presence as bystanders, at or near the contraband. The defendants were observed as active participants in the transportation and disposition of the property. See, United States v. Romano, 382 U.S. 136, 141, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965).
Neither appellant questions the fact that a ship's containers loaded with 906 cartons of Panasonic radios, imported from Japan, of the type and model seized from their possession were stolen on November 12, 1971. However, they maintain the prosecution failed to prove that the radios ...