The opinion of the court was delivered by: LORD
The present post-conviction motions of defendants, Aaron Sussman and Harry Nassau, are before the Court following a jury verdict finding each respectively guilty of thirteen and eight substantive counts of receiving stolen government property in violation of 18 U.S.C.A. § 641, and of conspiring to commit those offenses in violation of 18 U.S.C.A. § 371. A third defendant, Charles F. Spalazzo, tried at the same time and found guilty of conspiracy and on fifteen substantive counts has not appealed.
The principal assignment of error is that whereas the indictment alleged a single continuous conspiracy from January 6, 1950 until March 15, 1956, the evidence as a matter of law indicates that there were in fact multiple conspiracies. In short, the defendants allege that there was a hiatus in the activities of the conspiracy in 1952 which terminated the confederacy which had commenced in 1950. It is asserted that the thefts which began anew in early 1954 are part and parcel of a new conspiracy. Defendants ask this Court to recognize the variance, if any, as fatal.
Defendants likewise contend that the evidence, as a matter of law, did not establish the guilty knowledge as to the stolen character of the cloth on the part of the defendants requisite to sustain the verdict.
Neither assignment of error is meritorious.
Although the mid 195-early 1954 period is important on the issue of termination, a proper understanding of its relationship to the entire conspiracy requires a summary of the facts as the jury may have found them from the evidence.
In its tangible beginnings in 1950, the conspiracy consisted basically of two units or divisions, which may be termed for convenience the employees and the retailers, respectively. The first group had five members, all employees of the Philadelphia Quartermaster Depot. When cloth for which there was commercial demand was available, it was their job to notify the retailers, and to make the arrangements for a time when the taking would be least hazardous. This unit was also responsible for the physical loading of the rented trucks in which the retailers arrived at the Depot, for the destruction of gate passes used by the retailers in entering and leaving the Depot, and for final concealment of evidence of the thefts by destruction or alteration of the Depot records.
Throughout the life-span of the conspiracy, 1950-1956, five of the employees remained in the conspiracy. The only change in the personnel or functioning of this group was the addition of one member, Joseph P. Ballard, who joined their membership in 1954. This group's assistance made possible some 15 to 20 thefts during the initial two years of the conspiracy and some 17 more during 1954-1956. The resulting loss to the Government amounted to many thousands of dollars.
It is to be noted that of the entire six of these employees named in the indictment, five entered a plea of guilty to every count in which they were named, and appeared as Government witnesses at this trial. The only one who went to trial was Spalazzo. The conspiracy count to which those pleas of guilty were made specified thefts occurring in May, July, and October of 1953, which is a period asserted by the present defendants to have been devoid of activity.
During the 1950-52 phase, the principal members of the retail group, for purposes of this opinion, consisted of Martin Weiner, David Stolper, and the latter's mother, Mrs. Stolper. One Robert Lichtman, owner of a woolen manufacturing company in Philadelphia, entered the organization sometime in 1951 and became one of the chief salesmen for the combine. This group served dual functions. Not only did they serve their primary task of procuring legitimate outlets for the stolen cloth, but Martin Weiner and David Stolper also served the transportation needs of the organization by actually entering the Depot in rented trucks to pick up and remove the cloth with the aid of their fellows, the employees.
Until 1952 the stolen cloth was sold to various legitimate customers in New York, Chicago, and elsewhere. All cloth was invoiced and sold under the name of 'Myron Wexlar', a fictitious name devised by Mrs. Stolper. Payments were received by check and deposited in a bank account opened in the Wexlar name. While Mrs. Stolper handled all financial transactions, Weiner, David Stolper and Lichtman each received a share of the proceeds.
Operations continued smoothly until Mrs. Stolper's death in 1952 and a subsequent F.B.I. investigation into the Myron Wexlar account. According to Martin Weiner, this latter investigation came about as a result of a sale of stolen cloth to the American Braid Co. of New York City. The American Braid Co. had apparently become involved in financial difficulties and the F.B.I., for reasons not disclosed by the record, began to look into their accounts, among which was 'Myron Wexlar.' Since the checks carried the address of Martin Weiner's Army and Navy Store in Philadelphia, it was but a short time before Weiner was interviewed by federal agents. According to Weiner the actual cessation of thefts resulted from this inquiry by the F.B.I., and it is this temporary suspension in the operations of the conspiracy which the defendants maintain terminated the original unlawful venture. It is to be noted that no arrests were made at this time.
Thereafter, late in 1953, Lichtman made connection with a new outlet, defendant Sussman, for the disposition of the cloth. The Quartermaster employees were again contacted with a view to a resumption of operations by Weiner. Operations did in fact resume in February of 1954 and seventeen truckloads of cloth were stolen from the Depot at various times between February 17, 1954 and March 14, 1956. Except for some unimportant changes, the modus operandi of the actual thefts of the cloth followed the original established pattern, although Martin Weiner's brother, William, now joined him in renting the trucks and removing the cloth from the Depot, Stolper having no further connection with Weiner after 1952.
The method of disposal of the cloth, however, was quite different during the 1954-56 period. Of the seventeen loads of cloth stolen, thirteen were sold to defendant, Aaron Sussman, the other four being sold directly to legitimate dealers. Nassau joined Sussman as a partner in approximately July, 1954, and participated in the purchase of the last eight truckloads. The sales to Sussman and Nassau were for cash and without invoice, in contrast ...