The opinion of the court was delivered by: NEALON
Defendants Anthony Farano, James Kermidas, Gerald F. Rohland and Samuel Riviello were tried jointly on separate two-count indictments
charging each with (1) knowingly transporting stolen copper wire and conduits from New York City to Hazleton, Pennsylvania, in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2, and (2) receiving and selling said stolen goods, knowing them to have been stolen, in violation of 18 U.S.C. § 2315 and 18 U.S.C. § 2. In addition, all four defendants were indicted in Criminal No. 14563 and charged with conspiracy under 18 U.S.C. § 371.
At the conclusion of the Government's case in chief, a motion for judgment of acquittal was granted as to all defendants on the conspiracy indictment, Criminal No. 14563, and as to defendant Farano on Count 2 of the indictment to Criminal No. 14556. The jury returned its verdict acquitting Farano on Count 1 of Criminal No. 14556, acquitting Kermidas on Count 1 of Criminal No. 14558, and acquitting Riviello on Count 1 of Criminal No. 14560. Defendant Rohland was found guilty on both counts to No. 14562. Kermidas was found guilty as to Count 2 to Criminal No. 14558, and Riviello was found guilty on Count 2 to Criminal No. 14560. All convicted defendants have filed motions for judgment of acquittal and for a new trial.
A review of the evidence is necessary to place the motions in proper perspective.
Navajo Trucking Company (Navajo) operated a trucking terminal in South Kearney, New Jersey, and in the course of its business operation utilized independent owner-operators to deliver merchandise on behalf of Navajo's customers. During the morning of Friday, February 23, 1968, William Bohn, dispatcher for Navajo, received a telephone call from a man who identified himself as an independent trucker named John Grace and inquired whether Navajo had "any freight going West." When informed that Navajo had a load from Cerro Wire and Cable Company (Cerro) that had to be transported to Chicago, Mr. Grace stated that he was unloading a shipment in Lindenhurst, Long Island, and, when the unloading was completed, would be available to take the Chicago shipment. Mr. Bohn told Grace to proceed to the Cerro premises and load his trailer and then report to the Navajo terminal in order to pick up the necessary delivery slips and a copy of the trip-lease. At 3:00 P.M. that same day, a man appeared at the Cerro loading dock, identified himself as Mr. Grace from Navajo and was allowed to load his truck with cartons of copper wire and conduits destined for points in the vicinity of Chicago. Grace took approximately seven hours to load the trailer and signed out at the Cerro platform at 10:00 P.M. Three Government witnesses, John MacKay, Cerro's Loading Supervisor; Robert Lichtenberger, Foreman of Cerro's Shipping Department, and William Winning, Cerro's Assistant Foreman, positively identified defendant Gerald F. Rohland as the person who appeared at Cerro's premises, loaded the Chicago shipments of copper wire and conduits, and signed a receipt for the shipment as John Grace. This was the last information Cerro had concerning these items and they were never delivered to their destination in Chicago.
The next day, Saturday, February 24, 1968, Harold S. Miller, an electrical wholesaler in Scranton, was contacted by defendants James Kermidas and Samuel Riviello and asked whether he would be interested in purchasing a large quantity of surplus copper wire. When he asked to see the wire, Kermidas and Riviello left Miller's premises and returned later with Rohland, who exhibited a sample of the wire to him. Miller told them he was not interested, but agreed to seek out another electrical wholesaler, Arthur Abelson of Kingston, Pennsylvania, and determine whether he was interested in purchasing. The following morning, Sunday, February 25, Mr. Abelson came to Miller's office and met with Kermidas and Riviello. According to Abelson, although Kermidas and Riviello showed him packing slips for 2400 cartons, they were vague about what they had to sell and indicated that they were not the owners, but expected to receive a $1.00 commission from him for each carton that he purchased. In Abelson's opinion, the entire shipment had a value of approximately $15,000.00, and when he offered Kermidas and Riviello $8,000.00 for it, they replied that they would have to discuss it with the owner. They left and returned within fifteen minutes with Rohland and Abelson offered him $9,600.00, which Rohland promptly rejected and left Miller's office. The next day, Monday, February 26, Miller called Abelson and told him that the offer had been accepted and it was agreed that delivery would be made to Abelson's Warehouse in Hazleton. That same day, two men visited George R. Shadie, an electrical contractor in Swoyersville, Pennsylvania, and attempted to interest him in buying some copper wire, but he was not interested. The wire demonstrated to him at that time was the same type as that taken from the Cerro premises. Mr. Shadie identified defendants Gerald Rohland and Anthony Farano as the two men who visited him.
By way of defense, Rohland testified that he was employed by an independent trucker, William Whitford of Dalton, Pennsylvania, and on the morning of February 23 made deliveries for Whitford to a drug company on Long Island, but returned to Dalton that evening between 7:30 and 8:00 P.M., and parked the tandem trailer he was using at the Whitford premises. Whitford corroborated this version to the extent that Rohland returned with the truck between 8:00 P.M. and Midnight on February 23. According to Rohland, he went to Jimmy's Lounge in Scranton where he met Kermidas, the owner of the lounge, and Riviello, the maintenance man. At this point the defense versions of what occurred vary markedly. Rohland contends that he was merely hired by Kermidas and Riviello to drive a truck which contained damaged goods, but was instructed "to act as if it were mine" when a sale was attempted and to demand $5.00 for each box on the truck. Rohland testified that on the day of delivery, Monday, February 26, Kermidas and Riviello took him to the truck, which was parked in Scranton on Lackawanna Avenue near the railroad station, and he drove it to Hazleton while Kermidas and Riviello followed in a private car. After all three participated in the unloading, Abelson paid him $8,600.00, which he later turned over to Kermidas and Riviello, and Kermidas gave him $50.00 for driving the truck. He denied ever being on the Cerro premises or knowing that the goods were stolen and insisted that he never saw the truck containing the cartons until the day of delivery. Similarly, he admitted visiting Mr. Shadie with Farano, but declared that he was there in his capacity as a truck driver and didn't know if the same shipment was involved. Finally, he denied ever using the name John Grace.
The versions of Kermidas and Riviello are the same. According to them, Rohland came to them at Jimmy's Lounge on Friday night, February 23, and offered a commission if they could find a buyer for a truckload of surplus wire which he had obtained in a "good deal." They admitted participating in the meetings with Miller and Abelson, but adamantly insisted that all the negotiations were conducted by Rohland and that they were only present as commission agents. They did not deny receiving $2,400.00 from Abelson, but persisted in their claim that Rohland was in complete control of the goods and that they did not know the shipment had been stolen.
Kermidas concedes in his brief that the evidence was sufficient to show that the goods involved had a value in excess of the $5,000.00 statutory requirement, had been stolen in New York, and had been transported in interstate commerce to Pennsylvania. However, he challenges the sufficiency of the proof that he had knowledge that the goods had been stolen. In resolving this contention insofar as it applies to a motion for judgment of acquittal, the view of the evidence most favorable to the Government must be taken. United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). There are several factors which would justify a jury's determination that Kermidas had the requisite knowledge. First, is the doctrine that possession of recently stolen property warrants a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession. Aron v. United States, 382 F.2d 965, 970 (8th Cir. 1967); United States v. Allegrucci, 258 F.2d 70, 76 (3d Cir. 1958). The question of possession, actual or constructive, is for the jury to determine. United States v. Prujansky, 415 F.2d 1045, 1051-1052 (6th Cir. 1969). Secondly, Kermidas operated a tavern, not a distributorship, so that the approach to him by Rohland, a total stranger, to dispose of approximately $15,000.00 in copper wire and conduits without explanation concerning its source except that it was the product of a "good deal" should certainly arouse suspicion concerning the legitimacy of its acquisition and, further, may have constituted an inadequate explanation to satisfy the inference attaching to possession of recently stolen property. Finally, Rohland's testimony, even if only accepted in part, indicated that Kermidas was more than a mere "commission agent" and, in reality, was an active and knowledgeable participant in the disposition of the goods. All in all there is ample evidence to support a jury's conclusion that on or about February 26, 1968, defendant Kermidas received and sold stolen goods which had been transported in interstate commerce and that he knew these goods had been stolen. Accordingly, the motion for judgment of acquittal will be denied.
In the alternative, Kermidas asks the Court to award a new trial because the verdict is against the weight of the evidence. In considering such a motion, the Court must weigh the evidence of both sides, consider the credibility of the witnesses and, if the verdict is against the weight of the evidence, grant a new trial. However, the Court should bear in mind that such a motion should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict. United States v. Pepe, 209 F. Supp. 592, 595 (D. Del. 1962), affirmed 339 F.2d 264. It is addressed to the discretion of the Court, which should be exercised with caution. 2 Wright & Miller, Fed. Practice and Procedure, § 553 (1969). After carefully reviewing the evidence I have no hesitancy in ...