Before BIGGS, Chief Judge, and GOODRICH and GANEY, Circuit Judges.
This is an appeal from a judgment of conviction under 18 U.S.C. § 659 for possession of goods stolen from interstate commerce, knowing them to be stolen. The goods in question were a Bell & Howell motion picture projector and two Rolleicord cameras.*fn1 The case has been here before and was sent back for a new trial because of what the Court found to be erroneous instructions to the jury. United States v. Allegrucci, 3 Cir., 258 F.2d 70 (1958).
The appellant first argues that the evidence in the case is insufficient to sustain the conviction. The statute is a technical one and requires the Government to prove the allegation that the goods were stolen from one of various enumerated places.*fn2 Here, the indictment charged that the goods had been stolen from Railway Express Agency platforms, to which they had been delivered by employees of the express company. This Court, upon the prior consideration of the case, said:
"There was ample evidence from which the jury could have found in this case that the goods involved in the indictment * * * were stolen from the platforms on which they had been placed in the course of movement in interstate commerce * * *."
The goods were shipped from New York City to points in West Virginia, Texas and Florida. They were not received by the consignees and the Government's theory is that they were stolen from the platforms of the Express Agency in the Long Island City Terminal and the Eleventh Avenue Terminal, respectively. The defense claims that at the second trial there was evidence which showed conclusively that the goods were not stolen from either platform of the Express Agency but were regularly forwarded into the channels of interstate commerce. If this testimony - by two drivers of the Express Agency - thus showed that the goods were not stolen from the platforms and the jury accepted the testimony, then the specific crime for which the defendant was indicted has not been committed. Each driver concerned told of his delivery of the article in question to the platform. Neither got a receipt upon the delivery of the package. We do not see from the testimony that the "sorting room" which the drivers talked about under skillful examination by defendant's counsel is any separate and distinct room on either of the station platforms. The photographs introduced - so far as they show anything - seem to show that the "sorting area" is just a part of the general loading and unloading platform. Because the argument is pressed with some vigor, we set out in Appendix I to this opinion the full testimony concerning this point as it was given to us by the defendant. Our conclusion from the testimony is that, taken most favorably to the defendant, it is inconclusive and certainly nothing upon which a court should take the question of theft from the platform away from the jury.
The appellant stresses vigorously and we have considered carefully the attack upon the trial court's handling of memoranda under the so-called Jencks statute, 18 U.S.C. § 3500. There are two of these memoranda. We shall consider first the one having to do with the witness Zippittelli. She is a young woman who was in and about the Allegrucci household because she assisted in the care of the defendant's ill mother. After an F.B.I. agent talked with her he wrote down what was described as a summary of his conversation. She did not see or adopt the memorandum nor did it purport to be a full, substantially verbatim account of what she said. We could stop discussion of this point forthwith because the memorandum is not the type described by the statute in subsection (e) (2).*fn3 The trial judge, however, after examining the memorandum in camera, read it to counsel for the defense. Miss Zippittelli's testimony in court was completely consistent with the agent's report of the interview. A comparison of Miss Zippittelli's statement and her testimony is set out in Appendix II. Furthermore, it was highly favorable to the defendant because the young lady said that the cameras exhibited as the stolen goods were not the cameras which she saw in defendant's home. We see no error in the conduct of the trial judge in giving counsel more than he was entitled to.
The second objection refers to a memorandum made by Government Agent Roberts after an interview with the defendant himself. The point urged is that, after Agent Roberts testified to the substance of an interview with the defendant on July 15, 1955, the trial court should have ordered the production of a memorandum which the agent made of the meeting. He bases this on subsection (e) (1) of the Jencks Act, cited above.
The facts of this case on this point are almost indistinguishable from those of United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961), with which we agree. While Annunziato concerned the production of a statement requested under subsection (e) (2), its holding is equally applicable here where the basis of the request was subsection (e) (1) of the statute. In reaching its conclusion that the failure to order production of the statement was harmless error, the Second Circuit, through Judge Friendly, said:
"Careful scrutiny of the Interview Report convinces us that on no basis could it have assisted the defense. Both the majority and the minority opinions in Rosenberg v. United States, 1959, 360 U.S. 367, 371, 375, 79 S. Ct. 1231, 1236, 3 L. Ed. 2d 1304, spurn the extreme view 'that the harmless error doctrine can never apply as to statements producible under the statute * * *.' Even taking as our test the presumably more rigid standard laid down by the minority in Rosenberg * * * that we must remand 'unless the circumstances justify the conclusion that a finding that such a denial [of a statement producible under § 3500] was harmful error would be clearly erroneous,' we answer that here it would be, fully recognizing, as we say this, the caution that 'appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectually utilized a producible statement.' The Interview Report checks fully with Haas' trial testimony. Had we been defense counsel, we would have bitterly regretted receiving it, since its production would have presented the dilemma, which trial lawyers strive desperately to avoid, that examination on the report would only reinforce the witness' testimony whereas failure to use it would do the same."
In this case, the contents of the report prepared by Agent Roberts as to his interview with the defendant are nearly identical with Roberts' testimony on direct examination as to the substance of the interview. A comparison of the memorandum with Roberts' testimony is set forth in Appendix III. In these circumstances we cannot see how the failure to order production of the report was anything but harmless error.
The appellant next complains of that portion of the charge which had to do with possession of stolen goods and the possible inferences to be drawn therefrom. The court charged:
"Unexplained possession of recently stolen goods permits the jury to infer, if they decide to infer or want to infer, that the possession is guilty possession * * *.
"Possession of the fruits of crime, recently after its commission, may justify the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence. * * *"
The defendant argues that the term "recently stolen goods" was not sufficiently explained. There was no request, at the time of the charge, for further explanation. The evidence shows that the cameras in question were in the possession of the defendant about December 7 or 8, 1954, and the dates of shipment were, respectively, September 22, 1954, and November 24, 1954. The motion picture projector was shipped in interstate commerce December 8, 1954, and sold in March of 1955. We think that there is no substance to the point that the interval between the shipment and the defendant's possession took the case out of the classification of "recently stolen goods." Of course, there is no set period which constitutes recency in this connection.*fn4 Under any standard, however, we think the intervals here were not too long.
The appellant also complains that the jury was prejudiced because in its presence the trial court, in discussing with defendant's counsel the latter's application for a copy of the memorandum prepared by Agent Roberts, asked counsel whether "the doctrine of completeness" would apply if he were given the memorandum. The court suggested that counsel think it over. And counsel replied: "We have nothing to hide." All of this talk about the doctrine of completeness may have confused the jury as it has the Court, but it certainly is nothing that could have prejudiced the defendant in any way, especially since his counsel really testified in his favor by saying that there was nothing to hide.
There was one point, however, to which the Government concedes that the defendant's position is well taken. Before sentencing the defendant, the court told his counsel to "go ahead." But the court did not specifically ask the appellant if he had anything to say and, in fact, did not give him a chance to say it had he wished to. Under Green v. United States, 365 U.S. 301, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961), the convicted defendant should have had this opportunity.
Therefore, the judgment of the district court will be vacated and the case remanded for re-sentencing, giving to the defendant the opportunity to make a statement before sentence is imposed upon him.
William Beaton, under cross-examination, testified as follows:
"Q. Did you get a receipt for the merchandise you say you placed on the platform?
"A. I got a receipt for the packages when I picked them up and turned them into the Railway Express at nighttime.
"Q. Where did you get the receipt for the packages?
"A. From Burleigh Brooks.
"A. (Continuing) I don't get no receipt when I take the load to the terminal.
"Q. When you placed them as you say on the platform did you get a receipt from anybody?
"Q. Do you know how long it remained on the platform?
"A. I wouldn't even know.
"Q. Did you see any one take it off the platform?
"A. Yes. There were men working there at the time.
"Q. You saw them take it off the platform?
"Q. Into the sorting room?
"Q. Did you ever see the defendant around the platform?
Edward Radigan, the other driver, testified:
"Q. Did you get a receipt for the merchandise you say you placed on the platform?
"Q. How long did it remain on the platform?
"A. Well, as soon as I put it on the platform it was sorted out - sorted for its destination.
"Q. Did they take it off the platform and put it in the sorting room?
"A. They sort it down the roller into these various trailers.
"Q. Is that in back of the platform or the platform?
"Q. Is that the sorting room - what they call the sorting room?
"A. Where I put it that is the sorting section. There is a sorter stands there and he marks it.
"Q. You saw the sorter take it and sort it?