Appeal from a conviction, after a jury trial, in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, of unlawfully receiving and possessing goods stolen in interstate commerce, and of conspiring to do the same. 18 U.S.C. §§ 659, 371. Held, the conspiracy conviction does not place appellants twice in jeopardy notwithstanding a previous conspiracy conviction for possessing stolen goods; it was not plain error to admit hearsay statements of a declarant not independently established as a member of the conspiracy; the affidavit underlying the search warrant was sufficient; joint representation of appellants at trial did not cause specific prejudice and did not deny their right to counsel; the court's charge with respect to the inference of knowledge from possession of stolen property and the impeachment of witnesses was proper; and similar act evidence was properly admitted. Affirmed.
Before Lumbard, Mansfield and Oakes, Circuit Judges.
Appellants were prosecuted on two counts for receiving and possessing goods stolen in interstate commerce, in violation of 18 U.S.C. § 659, and for conspiring with each other and with three codefendants to receive stolen goods, in violation of 18 U.S.C. § 371. The DeFillipos, who are brothers, were each convicted on both counts after a jury trial in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. They were sentenced to two years' imprisonment on the conspiracy charge, to be served consecutively to sentences previously imposed in the District of New Jersey for another crime involving similar charges in connection with stolen Yves St. Laurent suits, of which more later; the possession charge carried no sentence of imprisonment, only a five-year probation term. On this appeal appellants raise six points, three of which were decided adversely to their three codefendants in an affirmance from the bench in United States v. Santa, 578 F.2d 1372 (2d Cir. 1978).*fn1 We find none of the six grounds of sufficient merit to warrant reversal.
At about 9:00 p. m. on March 11, 1975, a T.I.M.E.-D.C. Trucking Corporation tractor-trailer carrying interstate 6,910 cartons of Schick shaving products with a retail value in excess of $400,000 was hijacked near Parsippany, New Jersey. Less than forty-eight hours later agents of the Federal Bureau of Investigation (FBI) executed a search warrant at the CBS warehouse in Brooklyn, New York, and recovered 5,072 cartons of the stolen products. The FBI recovered an additional 1,783 cartons later that day at the S & F warehouse in Brooklyn. The operators of the CBS warehouse were convicted for unlawfully receiving and possessing the cartons found there, and their convictions were affirmed in United States v. Kahan, 572 F.2d 923 (2d Cir.), Petition for cert. denied, 439 U.S. 833, 99 S. Ct. 112, 58 L. Ed. 2d 128 (1978).
The Government charged that the DeFillipo brothers unlawfully possessed the stolen products and conspired with Vincent James Santa, Joseph DeLuca, and Manuel Gomez to possess them. Paul Pollari, a Government informer, testified that at about 7:30 p. m. on March 11, 1975, an hour and a half Before the hijacking, appellant James DeFillipo telephoned him and told him that they had "work" the next day, which Pollari understood to mean "an unloading job." Early on the morning of March 12 Pollari met with appellants and codefendant Gomez, and they proceeded to Tony's Gulf Station in Brooklyn where Gomez obtained three rental vehicles, two trucks and a van. The four men proceeded to the Zimco truck lot and met codefendant Santa, who directed them to the middle of the lot where they found the stolen T.I.M.E.-D.C. trailer, "buried amongst a whole bunch of trailers." Codefendant DeLuca was also present in the lot. The doors of the trailer were open, revealing a full load of Schick products.
Appellants, Santa, DeLuca, Gomez, and Pollari unloaded the Schick products into one rental truck. Santa directed Gomez and Pollari to deliver the first truckload to the S & F warehouse and also indicated that the DeFillipos were going to the CBS warehouse. Gomez and Pollari spent the rest of the day at the S & F warehouse partially unloading the stolen merchandise, and when they returned to the Zimco lot they reloaded their truck with the help of Santa and DeLuca who were the only ones there. The jury might have inferred that the DeFillipos were busy at the CBS warehouse. On the following morning, March 13, Pollari met with Gomez and the DeFillipos at a diner in Queens. Pollari and Gomez later proceeded to the CBS warehouse with the reloaded truck again full of stolen Schick products. The DeFillipos arrived a few minutes later in two vans, one previously mentioned which Gomez had obtained on March 12 and the second which DeLuca had apparently obtained under his own name. Pollari, Gomez, and the DeFillipos spent the afternoon of March 13 unloading more products at the CBS warehouse.
The FBI had this unloading under surveillance as a result of information that Pollari had given to the FBI on the previous evening. The surveillance confirmed that the DeFillipos arrived in their two vans and joined Gomez and Pollari in unloading all three vehicles. The agents, who had seen the DeFillipos on prior occasions, positively identified them and also observed what appeared to be identification numbers on the cartons. The FBI later obtained a search warrant and recovered the stolen products at both the CBS and the S & F warehouses.
After delivery of the stolen goods to the CBS warehouse, Pollari and the DeFillipo brothers went to Robert's Lounge in Queens and then to the house of one Tommy DeCandia where they met Santa and DeLuca. Santa informed them that "the FBI had hit" the CBS warehouse. When Pollari in the presence of the DeFillipos asked Santa whether there was anything to worry about, Santa said, "No, the problem was probably on the other end," presumably referring to the warehouse operators. Santa paid Pollari and appellants $700 each for their unloading efforts, fairly healthy pay for two days' work. The court also admitted testimony by Pollari that a few days later he overheard Santa state that "we already got $20,000 from (the warehouse operators) and we ought to get another $20,000 because it was probably their fault."
Another Government informer, Thomas Cogar, also testified to conversations about the hijacking. On the evening of March 12, Cogar met Gomez at DeCandia's house, and Gomez later informed Cogar that "they had just made a $500,000 score." A few days later, while Cogar helped Gomez return a rental car, Gomez disclosed that he had used the car "on a razor blade job." Additionally, on or about March 14, the day after the stolen products were seized and the warehouse operators arrested, Cogar overheard a conversation between Santa and Stanley Diamond, who subsequently entered a plea of guilty to the conspiracy count in a prior indictment naming appellants. In this conversation, as Santa handed Diamond a newspaper article describing three people apprehended with a load of stolen shaving products, Santa asked Diamond what he thought of the warehouse operators. Diamond told him "not to worry, they are tough people, they will stand up." Finally, Cogar testified that later that week he again met with Santa, Diamond, and Gomez at DeCandia's house. According to Cogar, Diamond asked Santa if he was going to get any more money from the warehouse operators and told Santa that he, Diamond, needed the money. Santa said that he would meet the warehouse operators on the following Saturday. Diamond also told Gomez that the warehouse operators had made payment in new hundred-dollar bills with certain specific wrappers.*fn2
The Government presented various documents and expert witnesses to corroborate the testimony of the informers. The Government also obtained admission of a prior conviction of the DeFillipos in the District Court for the District of New Jersey establishing that on December 2, 1974, the DeFillipos, together with Santa and DeLuca, unlawfully possessed a quantity of Yves St. Laurent suits that had been stolen from interstate commerce.
Of appellants' six arguments, three were, as stated above, presented by their codefendants in the Santa case: (1) their conviction for the instant March, 1975, conspiracy to possess the stolen Schick shaving products placed them twice in jeopardy because they had previously been convicted of conspiracy to possess the stolen Yves St. Laurent suits, and the conspiracy was a continuing one; (2) the court erroneously admitted hearsay testimony of Cogar about Gomez's utterances outside the purposes of the charged conspiracy and Diamond's utterances without sufficient independent nonhearsay evidence that Diamond participated in the conspiracy; (3) the district court erred in finding that they lacked standing to challenge the March 13, 1975, search of the CBS warehouse and in holding that the affidavit underlying the warrant was sufficient. Appellants raise three issues not previously dealt with by the Santa court: (4) Patrick claims that the court denied his right to counsel by permitting a single attorney to represent him and his brother at trial; (5) appellants argue that the charge was erroneous because it (A) permitted the jury to infer guilty knowledge from recent possession of stolen property and (B) foreclosed the jury from considering material impeaching the Government's witness; and (6) appellants complain that the court should not have admitted as a similar act of evidence of the conviction for possession of the Yves St. Laurent suits.
Because the gist of the crime of conspiracy under 18 U.S.C. § 371 is the agreement of the conspirators to commit one or more unlawful acts, with one of the parties doing an overt act to effectuate the conspiracy, Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 87 L. Ed. 23 (1942), the Government may not prosecute a defendant for conspiracy twice on the basis of a single agreement to commit two crimes without running afoul of the prohibition against double jeopardy. Id.; see United States v. Mallah, 503 F.2d 971, 987 (2d Cir. 1974), Cert. denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975). Appellants argue, for the first time on appeal, that double jeopardy bars their prosecution and consecutive sentence for the March, 1975, Brooklyn, New York, conspiracy to possess stolen Schick products because they already had been convicted of conspiring to possess goods stolen in the Yves St. Laurent hijacking, which occurred three months earlier in New Jersey and involved essentially the same conspirators.
Although there is authority in this circuit that a defendant forfeits a double jeopardy claim if he does not affirmatively plead his claim at trial, United States v. Perez, 565 F.2d 1227, 1232 (2d Cir. 1977); See Fed.R.Crim.P. 12(b) and (f),*fn3 the defendant might be able to raise the claim as an objection to consecutive sentences.*fn4 We need not resolve this rather ...