Appeal of four co-defendants from judgments of conviction, after a jury trial before Chief Judge Jacob Mishler, United States District Court for the Eastern District of New York, of conspiring to steal goods moving in interestate commerce and to receive and possess those goods in violation of 18 U.S.C. § 371, of obstructing interstate commerce through robbery in violation of 18 U.S.C. § 1951 (the Hobbs Act) and of receiving and possessing goods stolen from interstate commerce in violation of 18 U.S.C. § 659. Convictions of conspiracy and of violating the Hobbs Act affirmed; convictions of violating section 659 vacated on ground that the convictions of both section 1951 and section 659 violations were multiplicitous.
Before: Moore, Feinberg and Meskill, Circuit Judges.
Anthony DiGeronimo, George Holtmeyer, John Romeo and Robert Virga appeal from judgments of conviction, after a jury trial in the United States District Court for the Eastern District of New York, for conspiring to steal goods moving in interstate commerce and to receive and possess those goods in violation of 18 U.S.C. § 371, for obstructing interstate commerce through robbery in violation of 18 U.S.C. § 1951 (the Hobbs Act) and for receiving and possessing goods stolen from interstate commerce in violation of 18 U.S.C. § 659. The trial judge, Chief Judge Jacob Mishler, sentenced DiGeronimo to five years on the conspiracy count and to eight years on each of the two substantive counts, the sentences to be served concurrently, and sentenced Virga and Holtmeyer to concurrent five year terms on each count and Romeo to three years on the conspiracy count and three years probation, consecutive to the prison term, on the other two counts. Appellants raise a number of contentions on appeal, of which the most significant is that the Hobbs Act count and the receipt of stolen goods count were multiplicitous. For reasons set forth below, we affirm the judgments of conviction of all appellants on the conspiracy and Hobbs Act counts, but conclude that the convictions for receipt and possession of stolen goods cannot stand.
The convictions stem from the hijacking of a truck and the theft of a shipment of sweaters it was carrying. Around one o'clock in the afternoon of December 6, 1977, Vincent Spina, a truck driver, left Kennedy Airport with a full load of sweaters and headed for Damon Creations, Inc., in North Bergen, New Jersey. Spina was followed onto the Van Wyck Expressway by a white Mercury Cougar with a red top. The occupants apparently impersonated police officers by using a badge, flashing lights and a siren, and forced Spina to pull his truck over to the side of the road. Two men got out of the Cougar, approached the truck and, after an attempt by Spina to escape, pulled out guns and threatened to kill him. While Spina was forced into the back of the Cougar, he noticed an old white car with two people in it some distance behind the Cougar. Spina's assailants drove him around Long Island for two and one-half hours and then released him at a train station. Spina later identified the two men as appellants Holtmeyer and Virga.
At 3:00 p.m. on the day of the hijacking, an eyewitness observed the hijacked truck speed around a corner and come to a stop on Barby Street in Brooklyn. The truck was empty at this time. The driver of the truck jumped out and got into a white 1970 Chevrolet that had followed the truck, which then sped off. The eyewitness took down the license number of the Chevrolet, which was identified as belonging to Pauline Camarda, an unindicted co-conspirator. The descriptions of the driver of the truck and the driver of the Chevrolet fit, respectively, appellants DiGeronimo and Romeo. The eyewitness noted that the driver of the truck was wearing a tan outfit. Forty-five minutes later, DiGeronimo and Romeo appeared at the West Hempstead office of DiGeronimo's parole officer, an office which is approximately 30 to 40 minutes by car from the Brooklyn site where the hijacked truck was dropped. The parole officer remembered that DiGeronimo was wearing a tan outfit. At the trial, Kevin Feeney, who was an employee of the Inn Pub, a bar in Oceanside, Long Island, testified that DiGeronimo, Holtmeyer and Romeo had held secret meetings in the back room of the pub in November and December and that around the 10th of December, DiGeronimo and Romeo began offering sweaters for sale in the pub.
All four appellants argue that the evidence against them was insufficient to establish their guilt beyond a reasonable doubt. We find this contention without merit and agree with Judge Mishler that "the evidence was overwhelming." Holtmeyer and Virga were identified by the victim truck driver in lineups and at trial. When faced with the possibility of appearing in a lineup, Virga grew a beard and then shaved his head and changed the beard to a mustache. The jury could have found that this was an attempt to conceal his identity and thus showed Virga's consciousness of guilt. There was also evidence of Holtmeyer's consciousness of guilt. When Holtmeyer found out that Kevin Feeney had testified before the grand jury, he was very concerned and interested in what Feeney had been asked; at one point Holtmeyer frisked Feeney for a recording device and threatened him to keep him quiet. In addition, Holtmeyer's police badge was identified as the one used by the hijackers.
There was also substantial evidence that Romeo and DiGeronimo were the two men who had dropped off the hijacked truck in Brooklyn on the day of the hijacking. The timing, the clothes and the physical appearance of the two men all support this finding. Romeo and DiGeronimo were also seen in the secret meetings at the Inn Pub, and they were observed selling sweaters which could have been stolen from the truck. The Cougar used in the hijacking was rented to Romeo and telephone records showed that a collect telephone call had been made to Romeo's residence from a phone booth not far from the scene of the hijacking about half an hour prior to the hijacking.
Although we have summarized only a portion of the evidence introduced against appellants, we think this summary shows that the evidence was more than sufficient to support their convictions.
Appellants also argue that they were improperly convicted of both interference with interstate commerce by means of robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951, and of knowing receipt and possession of stolen goods, in violation of 18 U.S.C. § 659. They claim that a defendant may not be convicted of both robbing a truck and receiving and possessing the goods that are the subject of the robbery conviction. Appellants further contend that they must be given a new trial since it is impossible to determine on which count, if any, the jury would have convicted them if it had been instructed that they could not be convicted of violating both section 659 and section 1951.
Appellants rely on a line of cases beginning with Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), in which the Supreme Court held that a bank robber could not be convicted and consecutively punished for both robbery and entry of a bank with intent to commit robbery, in violation of 18 U.S.C. § 2113. Entry to commit robbery, the Court said, was made illegal in order to reach a new class of culprits, those who fall short of their purpose. Two years later, in Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959), the Court held that convictions for separate counts of bank robbery and receipt and possession of the stolen proceeds could not stand. Heflin was reaffirmed in 1976 in United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222, in which the Court stated that an individual could not be convicted of both bank robbery and receipt or possession of the proceeds of that robbery because in the subsection covering receipt and possession " "Congress was trying to reach a new group of wrongdoers (those who receive the loot from the robber), not to multiply the offense of the bank robbers themselves.' " Id. at 547, 96 S. Ct. at 1026, quoting Heflin v. United States, supra, 358 U.S. at 419-20, 79 S. Ct. 451. In Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), the Court extended the multiplicity doctrine beyond the federal bank robbery statutes. Milanovich held that a defendant could not be convicted of both stealing government property and of receipt and concealment of that property, both defined as offenses under 18 U.S.C. § 641. The Court found "nothing in the language or history of (section 641) which leads to a different conclusion (from Heflin )." 365 U.S. at 554, 81 S. Ct. at 729-30.
Prince, Heflin, Gaddis and Milanovich, were all based on statutory construction, not on constitutional or common law grounds. Although the statutes here involved were not construed in those decisions, we believe that they frame the issue before us: Did Congress intend to pyramid the punishment of those persons who commit robbery in interstate commerce and then receive or possess the stolen goods or was the latter prohibition designed to "reach a new group of wrongdoers"? We feel justified in putting the question that way even though the Hobbs Act also prohibits conduct obstructing commerce other than by robbery, e. g., by extortion or by threat of violence, because the prosecution's theory here was that defendants violated the Hobbs Act by robbing the truck and the judge charged the jury on that theory.*fn1 Therefore, we need not consider how the inquiry before us would be changed by a different factual pattern.
Turning then to the question thus posed, we look to the Supreme Court cases for guidance. Congress' intent to provide multiple convictions and punishments for the same acts must be clear and "without ambiguity." Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955). When the intent of Congress in punishing multiple aspects of the same acts is unclear, courts resolve the "ambiguity in favor of lenity." Heflin v. United States, supra, 358 U.S. at 419, 79 S. Ct. 451. See also, e. g., Simpson v. United States, 435 U.S. 6, 14, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). As the Court has observed, when Congress intends to impose a ...