UNITED STATES of America v. Angelo GRASSO, Benito Onorato, Dino Onorato, Robert Gwinnett, Anthony Spagnoli. Angelo Grasso, Appellant.
No. 17492.
United States Court of Appeals, Third Circuit.
Dec. 30, 1970.
As Amended on Denial of Rehearing Feb. 25, 1971.
437 F.2d 317
I cannot disregard or “sweep under the rug” this concession which, to me, is highly significant in the circumstances. In innumerable instances within my recollection we have not hesitated to act upon a defendant‘s damaging concession against his own interest, whether in brief or oral argument, and a defendant is no less entitled to benefit from the Government‘s open and unequivocal disclaimer of continued reliance upon a vital point. I would reverse.
James A. Scarpone, Hannoch, Weisman, Stern & Besser, Newark, N.J. (Irwin I. Kimmelman, Newark, N.J., on the brief), for appellant Angelo Grasso.
Frederick W. Klepp, Asst. U. S. Atty., Newark, N.J. (Frederick B. Lacey, U. S. Atty., Newark, N.J., on the brief), for appellee.
Before HASTIE, Chief Judge, and MCLAUGHLIN and ADAMS, Circuit Judges.
ADAMS, Circuit Judge.
Angelo Grasso was convicted, after a jury trial in the District Court of the District of New Jersey, of having in his possession goods—television sets and radios—stolen while being shipped in interstate commerce, and of conspiracy to possess such stolen goods.1 Grasso now appeals, assigning as error certain instruction given to the jury during the course of the trial, portions of the Court‘s final charge to the jury to which counsel did not object, and the insufficiency of the evidence supporting the verdicts of guilt on each count of the indictment.
The evidence showed that the television sets and radios, valued at over $40,000, were stolen by an unknown person while being transported in interstate commerce. Direct testimony revealed that sometime after the theft, Grasso‘s alleged co-conspirator, Benito Onorato, arranged to hide the stolen goods in a garage owned by one Gustave Mayer,3 pursuant to a scheme Onorato had contrived with Mayer prior to the theft of the shipment in question. At trial Onorato4 testified that he and Grasso drove to Mayer‘s garage and that the trailer load of television sets arrived at the garage immediately thereafter.5 Mayer testified that during the time the television sets were stored in his garage, he was present while Grasso and Onorato were attempting to raise money to pay for the stolen goods. Thereafter, the television sets and radios were removed from the garage, and still later the F.B.I. apprehended Grasso and his confederates.
Grasso‘s first contention relates to the Government‘s impeachment of its own witness, Onorato, by the introduction of Onorato‘s inconsistent pre-trial statements. Grasso concedes that in the circumstances presented here it was proper to permit the Government to impeach Onorato, but he argues that the District Court improperly instructed the jury regarding the purpose of introducing Onorato‘s prior statements. On at least two occasions the Court cautioned the jury that Onorato‘s prior inconsistent statements were to be considered only for the purpose of “neutralizing” Onorato‘s in-court testimony and “not to establish any facts.” In addition to the instructions given twice during the trial, the Court in its final charge to the jury pointed out that:
“The purpose of showing these prior contrary statements [made by Onorato] was not for the purpose of proving the truth of such statements, but to discredit or neutralize the effects of such adverse testimony.
Therefore, members of the jury, in considering the testimony of this witness, you are to take into account the prior self-contradictory statements made by him, and to offset the one against the other, where they may have been shown to be contrary.
Thus, you will neutralize the effect of each against the other. You are to limit the effect of these contradictory statements to this neutralization.”
Grasso‘s attorney, when asked if he wished to take exception to this portion or any other portion of the charge, stated that the Court‘s instructions were “satisfactory.” However, Grasso now
We cannot agree that the choice of words employed by the District Court in this case rises to the level of plain error, particularly when on three separate occasions the Court clearly warned the jury not to consider Onorato‘s prior inconsistent statements as probative of facts contained therein, but only to “neutralize” Onorato‘s direct testimony.
Turning to Grasso‘s second contention, we encounter again the interdiction of
Russo, however, is distinguishable from the present case. The defendant in Russo was a partner in a garage and trucking business. His responsibilities involved primarily truck driving. Russo had little reason to enter the garage operated by the partnership, and in fact did so only occasionally. Although cartons of stolen cigarettes were stored in trucks that were parked inside the garage for several days, there was no evidence whatsoever that Russo had entered the garage while the trucks containing the stolen cigarettes were there, nor was there any evidence at all indicating that Russo knew contraband was being concealed in the garage. Not only was the prosecution unable to produce any evidence which might support an inference of Russo‘s guilty knowledge, but also the transcript of the trial contains direct evidence given by Russo that he had not entered the garage during the relevant time and was completely unaware that merchandise had been hidden therein. Hence, the Russo panel held no more than when the only proof of a defendant‘s guilty knowledge is his participation in an innocent business relation
In addition the Russo panel was careful to distinguish a line of cases sustaining convictions when “* * * there were other circumstances shown from which the jury, without any consideration being given to the implied possession, could properly infer that the defendants had guilty knowledge.” 123 F.2d at 422. The case before us contains a number of instances in which the evidence tends to connect Grasso directly with the stolen television sets. There was testimony by Onorato placing Grasso at the storage site of the contraband, and evidence was given by Mayer, the owner of the garage in which the stolen goods were stored, that Grasso and Onorato had attempted to raise money to pay for the stolen television sets. Also, there was evidence which demonstrated that Grasso and Onorato were acting in concert according to a pre-arranged plan and that Onorato had accomplished the secret storage of the stolen goods. Under these circumstances, the principles of Russo are inapplicable to Grasso‘s case.
We do not now decide whether the final instructions given to the jury by the Court were an accurate and adequate statement of the law regarding the inferences to be drawn from constructive possession, but we do hold that any error contained in such instructions did not cause a miscarriage of justice7—the requirement to invoke Rule 52.
In light of the fact that Grasso made no attempt to bring the error he now alleges to the attention of the Court, as mandated by
Grasso‘s last contention is that the evidence adduced at trial was insufficient to support the verdicts. We have read the record with care, and although this is a close case, we find the evidence sufficient to uphold the jury‘s verdict on both counts of the indictment. Such evidence, which on appeal from a jury verdict must be construed in favor of the Government, Noto v. United States, 367 U.S. 290, 296-297, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); United States v. Schwartz, 390 F.2d 1, 2 (3rd Cir. 1968), may be summarized as follows. Onorato testified that he and Grasso planned to be, and were in fact, present at Mayer‘s garage at the time the contraband was delivered there. Any possibility that Onorato‘s and Grasso‘s presence at the garage at the time the stolen television sets arrived might have been mere coincidence was dispelled by Mayer‘s testimony that Onorato had arranged with Mayer prior to the delivery of the contraband to secrete the television sets in Mayer‘s garage. Benito Onorato testified that Grasso was present at Mayer‘s garage when the contraband was delivered and this was corroborated by testimony of one John Mason who observed Grasso‘s automobile at Mayer‘s residence at the relevant time. Finally, Mayer testified that he was present when Grasso and Benito Onorato were attempting to raise money to pay for the contraband in question.
Accordingly, the judgment of the District Court will be affirmed.
The crimes of which the appellant has been convicted are (1) conspiracy to receive and possess goods stolen from interstate commerce and (2) possessing such goods, both in violation of
On this crucial element of the case the court charged as follows:
“And if you find that the defendants were in possession, whether active or constructive, of the stolen television sets, you may infer that the defendants knew that the television sets were stolen, since it has been stipulated that the truck was actually stolen with the television sets on them the night before the arrest.”
The instruction was plainly incorrect. This court held, unequivocally, in United States v. Russo, 1947, 123 F.2d 420, that an inference of knowledge that goods were stolen could not lawfully be drawn from constructive possession. This rule reflects the concept that, in the process of proof beyond reasonable doubt, possession, itself merely inferred from some other fact, may not fairly be made the basis of a second inference of guilty knowledge.
In this case there was no testimony that Grasso was ever in possession of the goods. Thus, the jury could only have inferred possession from some other circumstance. Yet the jury was charged that this was enough to warrant an inference of guilty knowledge as well.
The majority opinion reasons, as the government argued, that the jury might have concluded that other evidence provided sufficient circumstantial proof of guilty knowledge without resort to any inference from constructive possession. But that circumstantial proof was weak at best, apparently because a key witness for the prosecution did not supply such probative testimony as the prosecution had reason to anticipate from him. Thus, the jury may well have based its essential finding of guilty knowledge upon the erroneous instruction that “constructive possession” justified an inference of knowledge that the goods were stolen. Accordingly, I do not see how the conviction can stand.
I would set aside this conviction and remand the case for a new trial.