The opinion of the court was delivered by: VANARTSDALEN
VanARTSDALEN, District Judge.
These defendants, Lucianetti and Casper, bring individual post-trial motions for judgments of acquittal and for new trials. Defendant Lucianetti was found guilty, by a jury, of violating 18 U.S.C. § 659 (theft from foreign shipment) and defendant Casper was found guilty, by the same jury, of violating 18 U.S.C. § 2 (aiding and abetting).
The criminal transaction in question involved the theft of 165 cartons of frozen beef from the stream of foreign commerce. Defendant Casper was the "checker" responsible for seeing that only the proper amount of merchandise was loaded on defendant Lucianetti's truck at Pier 78 in the City of Philadelphia. Lucianetti was "pulled over" by private detectives while still in the pier area and before signing for his load, and an overage of 165 cartons was discovered on his truck. In their respective motions for judgment of acquittal under Fed. R. Crim. P. 29(c), the defendants allege that the evidence was insufficient to sustain the jury's verdict. In their motions for new trial the defendants charge that fatal error was committed when the Assistant United States Attorney made a number of "impermissible" comments during the course of the case. Defendant Casper argues additionally that he was improperly questioned about a purported prior felony conviction. These points will be treated separately.
1. Defendant Lucianetti's Motion for Judgment of Acquittal.
We must start from the premise that when a jury has returned a guilty verdict "the prosecution is entitled to the benefit of all reasonable inferences from the evidence and that any conflicts in the evidence are to be resolved in favor of the jury verdict." United States v. May, 419 F.2d 553, 555 (8th Cir. 1969).
An examination of the evidence presented to the jury in this case indicates that reasonable men could have reached a verdict of guilty. The evidence was not overwhelming nor was it uncontradicted, but under all the circumstances, it was sufficient to support the verdict.
Defendant Lucianetti also alleges that he could not have committed an offense under § 659 since he was stopped by the detectives while still in the pier area. A similar contention was raised in Sterling v. United States, 333 F.2d 443, 446 (9th Cir.), cert. denied, 379 U.S. 933, 85 S. Ct. 333, 13 L. Ed. 2d 344 (1964):
Appellants contend that the evidence does not show a "taking" or a "carrying away" of the whisky because when the truck was stopped at the gate it was still in Pier 20. There is no merit to this contention.
In Sterling the truck had moved one-third of a mile from the platform to the gate. There is no reasonable basis upon which to distinguish the movement in the present case.
The motion for acquittal is denied.
2. Defendant Casper's Motion for Judgment of Acquittal.
Defendant Casper was found guilty of violating 18 U.S.C. § 2 by aiding and abetting Lucianetti in the theft of the meat. He argues that the government merely showed he may have been at the scene of the crime at the time and that he may have had an opportunity to become an aider and abettor, but that the proof was insufficient to establish that he actually became one.
The Third Circuit has clearly and concisely set forth the factors which must be considered when dealing with a charge of aiding and abetting. In United States v. Barber, 429 F.2d 1394, 1397 (3rd Cir. 1970), the court said:
In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort [sic] associate himself with the venture, [i.e., the criminal enterprise] that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." United States v. Peoni, 2d Cir. 1938, 100 F.2d 401, 402, quoted with approval in Nye & Nissen v. United States, 1949, 336 U.S. 613, 619, 69 S. Ct. 766, 93 L. Ed. 919. Therefore, mere presence at the scene of a crime, even in the company of one or more principal wrongdoers, does not alone make one an aider or abetter. (citations omitted).
In addition, the conduct of the individual charged or other special circumstances attending his presence must be such as to show that he has associated himself with and participated in the criminal undertaking . . . . The courts have the responsibility to make sure that mere speculation is not permitted to substitute for proof in such cases. (Emphasis added).
The court gave several examples of significant factors beyond mere presence -- serving as a lookout, verbal encouragement of an assault, intimidating and blocking the escape of a victim assaulted by a third party, flight from the scene of the crime with the perpetrator. (Id. at n. 4).
Barber has been cited with approval by other circuits. See United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971); United States v. Barfield, 447 F.2d 85, 88 (5th Cir. 1971).
The "other special circumstances" present here which could be a reasonable basis for a jury verdict of guilty were that defendant Casper was in charge of, and had the responsibility for, the loading of defendant Lucianetti's truck (although the actual physical loading of the cartons was done by defendant Lucianetti and his helper. The cartons were brought to the truck by the "chisel driver", Slick Mason, under Casper's direction). In addition, after the loading was completed, Casper turned in his tally sheet showing that the total load did not exceed the amount to which Lucianetti was entitled. These facts, coupled with the inference which the jury could draw from the evidence indicating that all of the purloined beef was in the front of the truck (and thereby concealed from view), provide a reasonable set of "special circumstances" for the verdict. In addition, there was testimony from one of the government witnesses that he had Lucianetti's truck under almost constant surveillance and that it was empty when it pulled into the dock. The jury could reasonably conclude that this was substantially correct even though a second government witness testified that there was a box of bacon in the truck when it was off-loaded the following day. All this evidence, albeit circumstantial, was sufficient for the jury to determine that Casper was more akin to a "lookout" than an innocent bystander."
The motion for acquittal is denied.
3. Defendant Lucianetti's Motion for New Trial.
Defendant raises three points in his motion for new trial: one, that the Assistant United States Attorney in his summation to the jury made the impermissible comment, "You know, we don't arrest and indict everybody"; two, that the Assistant United States Attorney in his summation referred to the defendant as "a liar" and three, that the Assistant United States Attorney made impermissible comment on the failure of the defendant to call a key witness.
The first statement is found at N.T. 5-103. It is clear from the context that this remark was directed against defendant Casper, not against Lucianetti, but if it was prejudicial to the former the harm to the latter would be equally obvious.
Defense counsel, however, made no objection to this statement and it went unchallenged. Reliance is now placed on Hall v. United States, 419 F.2d 582 (5th Cir. 1969), in which appellant's conviction was reversed on the basis of several comments made to the jurors by the Assistant United States Attorney. One of the statements which the court found to be objectionable was the remark, "we try to prosecute only the guilty." The statement involved in this ...