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United States v. Wisniewski

April 3, 1973


Before Kaufman and Mansfield, Circuit Judges, and Bryan, District Judge.*fn*

Author: Mansfield

MANSFIELD, Circuit Judge:

In this prosecution for the knowing receipt and concealment of stolen motor vehicles in violation of 18 U.S.C. §§ 2313 and 2,*fn1 eight co-defendants appeal from a judgment of conviction entered May 23, 1972, in the United States District Court for the District of Connecticut following jury verdicts of guilty in a trial before Judge Thomas F. Croake of the Southern District of New York, sitting by designation. Appellants Leonard Wisniewski, Robert Staires, Jeffrey Pulver, Salvatoro Cavallaro and Ernest Novak, were named in three counts of the indictment: the first for the receipt and concealment of a stolen 1971 red Ford station wagon; the second for the receipt and concealment of a stolen 1969 gold Pontiac; and the third for the receipt and concealment of a stolen 1968 blue Cadillac. Appellants Dennis DiFederico and David Benoit were named in the first two counts and defendant Joseph Camillo, Jr. was named in the first and third counts.*fn2

On appeal all defendants raise the impropriety of admitting certain testimony at trial allegedly stemming from an unlawful arrest. Some also claim that the evidence was insufficient as to them, that the trial judge committed reversible error in his charge and that they were denied effective assistance of counsel for the reason that all defendants were represented by the same trial counsel. As we find these assertions to be without merit, we affirm the convictions.

On December 13, 1971, a team of FBI agents commenced surveillance of Leonard's House of Buys and of the Milford Salvage Company, enterprises located on adjacent properties in Milford, Connecticut, and owned by the defendant Leonard Wisniewski. The bulk of the government's case was based on the testimony of the FBI agents and photographs taken by them in the course of their surveillance. The agents observed stolen cars being delivered to these premises, which resembled a combination used car lot and junk yard, and there dismantled with the apparent purpose of selling the resulting automobile parts.

In the late afternoon of December 15, 1971, a stolen 1971 red Ford station wagon with New York license plates, the subject of the first count, was driven up to Leonard's House of Buys. Following closely behind was a white 1965 Pontiac Bonneville, also with New York plates, which was to accompany each of the other stolen cars specified in the indictment. Agent Chastain testified that on December 15 he saw the defendants Benoit, Pulver, Novak and Wisniewski engaging in various activities apparently pertaining to the stolen car. Pulver was observed driving the stolen red station wagon from the House of Buys to the rear side of the Milford Salvage building, from which bright reflections then appeared, indicating that a blow torch was being used.

On the following day, December 16, 1971, defendants Cavallaro, Camillo, DiFederico, Benoit, Novak, Staires and Wisniewski were seen in the surveillance area. Agent Chastain "[observed] the doors [of the stolen 1971 Ford] had been removed, the seats removed, the hood and fender removed from the car: in fact, it was still steaming or smoking from that area." Shortly thereafter other incriminating conduct was observed: Staires exited from the Milford Salvage building carrying "a car type radio"; Wisniewski, sometimes with Staires and Pulver by his side, was seen using hand motions apparently to direct his colleagues, including DiFederico and Novak, as to the disposition of car parts; Benoit was seen driving a yellow truck carrying the body of a red station wagon; parts of a car frame were observed in a green truck driven by defendant Camillo; another truck (with Staires in the rear) transported what appeared to be the nose of a red Ford to a nearby Ford dealer. Salvador Vargas, an insurance adjuster, testified that he had informed Wisniewski in early December, that he was in need of a nose of a 1971 Ford station wagon.

The drama continued on December 17, 1971. The government established that another car of recent vintage, a 1969 gold Pontiac, had been stolen on that date. Subsequently, on that day the stolen gold 1969 Pontiac, followed by the same white 1965 Pontiac that had accompanied the stolen 1971 Ford upon its arrival at the premises, was delivered to the surveillance area. Once again Wisniewski, Staires, Benoit, DiFederico, Novak and Pulver were seen on the premises. This stolen car, like its predecessor, was driven "through the parking lot in front of Leonard's House of Buys, down over the little incline, into the junk yard; drove it through the junk yard and turned to go through the gate.... The car (the gold Pontiac) then went behind the Milford Salvage building and out of my sight." Thus the second stolen car was secreted.

Finally we come to December 27, the day of the arrests, and the day of the receipt of the stolen blue 1969 Cadillac, the subject of the third count. The owner of the car testified that it had been stolen that day and that the trunk contained a yellow box filled with a half case of Cutty Sark scotch. With Wisniewski, Staires, Pulver and Camillo on the porch of the House of Buys, two automobiles with New York licenses, the stolen blue Cadillac and the familiar white Bonneville, were driven into the parking lot. The Cadillac was then driven "through the parking lot, down over the embankment, through the junk yard... and out of sight behind the Milford Salvage building." Shortly thereafter Staires was seen walking from the Salvage building to the "House of Buys" carrying a "yellow box with the Cutty Sark on it." After communicating with an FBI supervisor and with the local police, Agent Chastain, with the purpose of making an arrest, entered the Salvage building where he saw Novak, Camillo and Cavallaro next to the stolen 1969 Cadillac, already partially dismantled, at which time they were arrested. Arrests of the other defendants followed.

Thus the two-week surveillance uncovered evidence (including the receipt and disposition of three stolen late model cars) which, when viewed most favorably to the government, established that the defendants were acting in criminal concert to carry out a highly organized scheme to receive, conceal and dismantle stolen cars. The jury found all defendants guilty of the counts submitted for verdict.*fn3

All defendants assert that the trial judge erred in admitting into evidence that portion of Agent Chastain's testimony which referred to his observations and certain photographs taken at the time of making the arrest on December 27, 1971. It is contended that no probable cause existed for the entry and arrest, that in any event an arrest warrant should have been obtained, and that since the arrests were therefore unlawful any resulting evidence was tainted and should have been suppressed.

"The lawfulness of the arrest without warrant... must be based upon probable cause, which exists where the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense... is being committed." Ker v. California, 374 U.S. 23, 34-35, 83 S. Ct. 1623, 1630, 10 L. Ed. 2d 726 (1963) (citations omitted). "Agents of the FBI have statutory authority to make felony arrests without a warrant for offenses 'committed in their presence,' or where they have 'reasonable grounds to believe that the person to be arrested has committed or is committing' felony, 18 U.S.C. § 3052.*fn4 The 'reasonable grounds' requirement of the statute is equivalent to the Fourth Amendment's requirement that arrests may be made only upon 'probable cause'. What constitutes 'reasonableness' or 'probable cause' must depend upon the specific facts of each case...." United States v. Elgisser, 334 F.2d 103, 109 (2d Cir.), cert. denied, Gladstein v. United States, 379 U.S. 879, 85 S. Ct. 148, 13 L. Ed. 2d 86 (1964) (citations omitted).*fn5 See United States v. Drummond, 354 F.2d 132, 153 (2d Cir. 1965), cert. denied, 384 U.S. 1013, 86 S. Ct. 1968, 16 L. Ed. 2d 1031 (1966); Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959).

Here it is clear that the arresting officials had ample probable cause to believe that the crime of receiving stolen automobiles was being committed. A late model stolen Cadillac, accompanied by the tell-tale white Bonneville, appeared on the premises and was promptly secreted behind the Salvage building. Present were the same persons who had played varrying parts in the earlier receipt and concealment of two other stolen cars. Moreover, the agents knew that less than two weeks earlier the stolen red Ford had promptly been dismembered upon delivery. They feared - with justification as it turned out - that the Cadillac was destined for a similar fate. Under the circumstances the arresting officers were amply justified in taking prompt action. Cf. United States v. Coplon, 185 F.2d 629, 635 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S. Ct. 362, 96 L. Ed. 688 (1952). Furthermore the government offered at trial to prove that the agents, before closing in to make the arrests, had been informed that the Cadillac had in fact been stolen.

The contention that the court was foreclosed from considering the government's offer of proof as to the agents' being informed regarding the theft of the Cadillac is meritless. Despite ample notice of the government's intended proof, the motion was, with Judge Croake's permission, made during trial. No abuse of discretion is shown on his part in denying the motion. See United States v. Romero, 249 F.2d 371, 374 (2d Cir. 1957); United States v. DiDonato, 301 F.2d 383, 384 (2d Cir.), cert. denied, 370 U.S. 917, 82 S. Ct. 1557, 8 L. Ed. 2d 497 (1962); ...

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