The appeal is from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, convicting appellants, after a jury trial, of wilfully and unlawfully receiving and having in their possession goods stolen from an interstate shipment of freight knowing the goods to have been stolen. Affirmed.
Before: VAN GRAAFEILAND and WEBSTER*fn* , Circuit Judges and DOOLING*fn** , District Judge.
At about 9:00 P.M. on March 11, 1975, a Time D.C. tractor-trailer carrying 6,910 cartons of Schick products interstate was highjacked in Parsippany, New Jersey. On March 12th, 1784 cartons of the products were delivered to the S & F Warehouse, and 1973 (or 1654 or 1606) cartons were delivered to the CBS warehouse, operated by the three defendants. On March 13th, at least 3,032 of the Schick products were delivered to CBS warehouse. Agents of the Federal Bureau of Investigation watched the delivery, and, after it was completed, seized 5,072 cartons of the Schick products at the CBS warehouse under a search warrant obtained while the Agents had the warehouse under surveillance. The defendants have been convicted of unlawfully receiving and possessing 5,072 cartons of Schick products stolen from an interstate shipment knowing the same to have been stolen. They were acquitted of a count charging them with conspiring to receive and have in their possession the cartons of Schick products stolen from interstate commerce.*fn1
Appellants contend that certain declarations of an alleged co-conspirator made after appellants' arrest should not have been received in evidence, that evidence suggesting that they had received stolen property under similar circumstances five weeks earlier should not have been received, and that the evidentiary fruits of the search and seizure of March 13th should have been suppressed because the affidavit on which it rested was insufficient and rested on a material misstatement of fact.
The evidence was essentially simple. Carroll Bridgeforth, the driver of the Time D.C. tractor-trailer combination, testified that he and his co-driver James Lester picked up a trailer loaded with Schick products at the New Haven, Connecticut, terminal between seven and seven-thirty on the evening of March 11, 1975, to drive it to Winchester, Virginia en route to the shipment's ultimate destination in California. At about 9:00 P.M., near the junction of Interstate Route 80 with Route 287 in New Jersey, a car forced them off the road and three or four armed men highjacked the truck at gunpoint. Bridgeforth, kept in the highjackers' car until released, with Lester, in Staten Island near midnight, testified that he heard one highjacker say to the other at about 11:30 P.M. that "the buyer was well satisfied with the load."
Paul Pollari testified that at about 7:00 or 7:30 o'clock in the evening of March 11th, Jimmy De Fillippo telephoned him to say that he had "work" for Pollari in the morning. On the next morning Jimmy De Fillippo called for Pollari at his house at 7:00 or 7:30 o'clock. He had with him his brother Patty De Fillippo and Manny Gomez. The four drove together to a truck rental station in Brooklyn and rented two straight trucks and a van. Pollari and Gomez drove one truck, Patty De Fillippo the other truck, and Jimmy De Fillippo the van. They drove together to a trailer yard in Brooklyn in which there were about 30 to 40 trailers. One was a Time D.C. trailer parked midway in the yard, and not visible from the street. When Pollari, Gomez and the De Fillippos reached the yard, Joe De Luca and Vinnie (Jimmy) Santa were already there. The Time D.C. trailer was opened and Pollari saw that it was packed to the back with razor blades. One of the rented trucks was backed up to the trailer and Santa, De Luca, the De Fillippos and Pollari loaded both the rental trucks full from the trailer. Santa sent Pollari and Gomez with their truckload to the S & F Warehouse on Flushing Avenue near the Navy Yard with a sketchily filled out "Shipping Order" copy of a bill of lading not indicating any carrier, but reciting that the goods had been received at Clinton, Connecticut from Schick and were "Consigned to International Trading Co.", at the "Destination S & F Warehouse", by the "Route Building 77," and naming as the "Delivery Carrier - Brooklyn Navy Yard". The description of the article was "Razors & Blades" followed by "Hold for Shipment". There was no shipper or carrier signature on the document. When Santa sent Pollari and Gomez to S & F Warehouse, he told Pollari, who had expected to go with Jimmy De Fillippo, that De Fillippo was going to CBS with the other rented vehicle. Gomez and Pollari drove to the S & F Warehouse and unloaded their truck until about 5:30 in the afternoon; they then left with about a quarter of the load still on the truck.*fn2 Pollari and Gomez drove back to the lot, found Santa and De Luca there, and refilled the rented truck they were driving from the Time D.C. truck. The De Fillippo brothers had not yet returned. Santa instructed Pollari and Manny to park their loaded truck at Gomez's house overnight and to go to CBS the following morning. That evening Pollari called Special Agent Pecoraro of the FBI and informed him of what was going on.*fn3 The next morning Gomez and Pollari drove their loaded truck to the CBS warehouse in Brooklyn. There the three defendants came out, looked into the truck, supplied the truckmen with skids, and showed them how to stack the cartons so that they would not fall. Later the De Fillippos arrived with Schick products and they too were unloaded and all the Schick cartons were taken by fork-lift truck and elevator into the CBS warehouse. The unloading of the truck and vans was not completed until 3:00 or 4:00 o'clock in the afternoon. The rented vehicles were returned and then Pollari and the De Fillippos went to the house of "Tommy Reel" and there met De Luca, Santa and one Stabino. Santa then told Pollari that "the FBI had hit the place, CBS, ten minutes after we left," but, said Santa, "we have nothing to worry about, it's on their end." Santa then paid $700 to Pollari and each of the De Fillippos.
The CBS warehouse had been under FBI surveillance from about nine o'clock on the morning of March 13. The Special Agents had learned of the Time D.C. theft by teletype on March 12, 1975, and had specification numbers of the products that had been on the trucks. They observed the Schick products being unloaded from the rented trucks and saw the defendants receiving the stolen goods; they could see that products being unloaded were Schick products, and Agent Pecoraro knew and recognized Pollari and Gomez. While the Special Agents were watching the delivery of the Schick products, a search warrant was obtained and the Agents executed the warrant. 5072 cartons of Schick products from the Time D.C. truck were located on the premises. Defendants Kahan and Mor Wercberger were to some extent interviewed. Defendant Kahan said that he had documents for the 1973 cartons of Schick products received on March 12th and Mor Wercberger produced a uniform straight bill of lading for 1654 packages of "Razors and Blades". The bill of lading differed from the one Santa had given to Pollari to cover the S & F delivery on the proceeding day only in reading "Destination c/o CBS Warehouse, Route Foot of 50 St" rather than "Destination S & F Warehouse, Route Building 77", and in reciting receipt of 1654 packages. Defendant Mor Wercberger also produced a CBS form of bill of lading, a copy of which, he said, he had issued to the truckman on March 12, 1975. It recited that an unnamed carrier had received from CBS Warehouses, Inc. "1 load blades" consigned to "INT Trucking"; it was signed by defendant Mor Wercberger.
No carrier document purported to cover the receipt by CBS of 3,032 cartons of Schick products on March 13th. Mor Wercberger produced the original of a straight bill of lading on the CBS form, reciting an unnamed carrier's receipt from CBS of "3032 car.", described as "3 loads" consigned to "INT'L TRUCKING".
Further documents related to the March 12th delivery included an unsigned handwritten receipt on a CBS form which recited the receipt from an unnamed person of 1606 cartons of Schick products, a signed typewritten receipt form of CBS Warehouses, Inc., dated March 13th, for 1606 cartons of Schick products received for account of International Trucking Co., and typewritten inventory cards covering the 1606 cartons. However, nothing was produced for the 3,032 cartons delivered on March 13th except the incomplete straight bill of lading on the CBS form. Neither defendant Kahan nor defendant Mor Wercberger could identify International Trading Company; Mor Wercberger said that he was not familiar with the company and had never before done business with it. After his arrest, Mor Wercberger produced from his wallet a statement of Tereza Merchandising Corp. (unrelated to the present case) on the back of which there was a handwritten list of 3,290 cartons of Schick products. Mr. Wercberger testified that he made up the list on the loading dock at CBS on March 13th before the drivers left, but did not put the descriptive detail of the list on the bill of lading form because truckmen are interested only in getting a receipt for the right number of packages. The numbers on the list and on the bill of lading form, however, are not in agreement.
The cartons of Schick products delivered on March 12th and 13th to the S & F and the CBS warehouses were returned to Time D.C. and by Time D.C. were returned to Warner Lambert, the manufacturer of the Schick products. The Warner Lambert return record accounts for 6905 of the 6910 cartons that had been on the highjacked truck; seven cartons were recorded as retained by the FBI. The evidence was that the manufacturer's cost of the product was over $81,000 and its invoice price to the trade was over $248,000.
Five weeks earlier the FBI had visited CBS in connection with a report that goods allegedly stolen from Whitehall Laboratories were in the CBS warehouse. A Special Agent testified that on February 4, 1975, after the FBI had been advised of the Whitehall theft, agents of the FBI went to the CBS warehouse, advised Mor Wercberger that part of the stolen Whitehall products were believed to be located in the CBS warehouse, and he requested and received his permission to search that warehouse for the Whitehall products, and found a large quantity of them. Mor Wercberger supplied to the FBI the shipping order copy of a handwritten bill of lading; again, the instrument gave no carrier's name and recited that the products had been received at an unidicated place on "2-1-1975" from "Whitehall Labs Inc.", "Consigned to A. Perez, Destination San Paulo, Brazil, Route C/O C.B.S. Warehouse Foot of 50 St. Brooklyn N.Y.". "Delivering Carrier" line was blank. The form was dated "2/3/75" in the space provided for describing the articles shipped; it listed 976 packages of Whitehall products.*fn4 The delivery arrived at CBS on February 3, 1975, Mor Wercberger testified, and the consignee, A. Perez, was unknown to him.
The Government showed that Whitehall Laboratories had shipped a large quantity of Anacin, Dristan and other products via National Farms Lines from its Hammonton, New Jersey, plant to its Dallas, Texas, warehouse on January 30, 1975. The shipment comprised 2,250 cases of proprietary drugs and toilet preparations weighing 36,804 pounds. The shipment did not reach Dallas, Texas. The Whitehall products were taken from the CBS warehouse on February 5, 1975 under a search warrant with the consent of defendants. All the packages seized from CBS, except five packages retained by the FBI, were returned to Whitehall on February 6, 1975, by the FBI through Laurel Hill Trucking Company.
Mor Wercberger testified that the original of the Whitehall bill of lading was never presented to CBS, and the goods allegedly consigned to A. Perez were never demanded from CBS by anyone - other than the FBI.
The Government produced the evidence of a handwriting expert that the bill of lading covering the Whitehall products allegedly consigned to A. Perez, the bill of lading covering the 1654 packages of razors and blades consigned to International Trading Co. c/o CBS Warehouse and the bill of lading covering 1784 razors and blades consigned to International Trading Co. at S & F Warehouse were all written (or printed) by the same hand, as was an exemplar furnished as being that of one Frank Joseph Maloney.
The Government showed through a witness from the car rental company that Manny Gomez had rented an automobile on March 10th and returned it on March 21st. The Time D.C. driver, Bridgeforth, said that the rental car resembled the highjackers' car. Bridgeforth had recalled that the car's license plate contained the numbers 538.The license plate of the car leased to Manny Gomez was 738 ZAO.
The defendants testified. Mor Wercberger testified that he was treasurer of CBS, that it had been in business for two years at the time in question, that Chaim Kahan was president and Solomon Wercberger was secretary of CBS and that Mor and Slomon Wercberger were brothers. Mor Wercberger testified that CBS did receive the shipments of Schick products on March 12 and 13, 1975, but did not know that the goods were stolen. He said CBS had been expecting from Tereza Merchandising Corp. a shipment, which would include razor blades of an unknown kind, in a quantity large enough to fit into a 20-foot container; that, when the Schick products arrived, he figured they were from Tereza. Since the Schick products arrived as loose cartons, not palletized as Tereza's goods usually were, he said that he telephoned to Tereza while the Schick products were still being unloaded and complained about the mixture of stock styles. Tereza told him, Mor Wercberger further testified, that they were not to expect Schick products from Tereza but Wilkinson blades. Mor Wercberger testified that CBS did receive a Wilkinson blades shipment later. He testified that because the shipment contained only 1,606 cartons he refused to countersign the bill of lading, which listed 1,654 cartons. Instead, he said, he gave his own bill of lading form to the truck driver covering "1 load blades" without specification of any number of cartons.The inventory cards for the March 12 delivery, he said, were prepared on the morning of March 13 before the arrival of the FBI.
Mor Wercberger denied he or CBS purchased the Schick products received on March 12th and 13th, and denied that he or CBS engaged in business as a dealer, wholesaler or retailer of goods. He testified that neither the consignee named in the instruments relating to the two deliveries of Schick Products nor anyone else came forward to demand the Schick products of CBS - other than the FBI.
Mor Wercberger sought to explain his failure to draw any inference from the manifold irregularities in the documentation covering the Whitehall and Schick product deliveries by producing a number of other shipping documents that were, in one or another respect, imperfectly completed. They certainly demonstrated that there had been other instances of careless practice, but none exhibited the extremes of irregularity that characterized the deliveries of February 3d, March 12th and March 13th, nor the marked differences between the number of packages delivered and number listed in the purported documentation, nor such a sequence of self-evidently suspicious deliveries as those of March 12th and March 13th. The last mentioned ...