APPEAL FROM THE JUDGMENT AND SENTENCE OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CRIMINAL NO. 72-106
Biggs, Gibbons and Garth, Circuit Judges.
The defendant-appellant Burrell was indicted on each count of a three count indictment which alleged a complex scheme involving the theft, transportation and attempted sale of tungsten carbide powder. Burrell's principal contention is that the Government failed to produce any evidence, factual or circumstantial, which was sufficient to sustain his conviction on the second count of the indictment.*fn1 He was acquitted on the other two counts. Burrell moved for a judgment of acquittal, for a new trial and an arrest of judgment. These were denied and the appeal followed.
The Government's counter statement of the case is an adequate description of what is alleged to have been the basis of the scheme. Burrell and his codefendants "were accused of causing approximately 45,695 pounds of tungsten carbide powder stolen from the Teledyne Firth-Sterling Plant in West Elizabeth, Pennsylvania, on March 13, 1971, to be transported by truck from West Elizabeth, Pennsylvania, to Miami, Florida, where it was repackaged in 34 metal drums; of causing this tungsten carbide powder to be shipped consigned to Paul West to Tortola, British Virgin Islands, via St. Thomas, British Virgin Islands, on March 24, 1971; of causing this powder to be shipped from Tortola to Liverpool, England, via Jamaica on April 22, 1971; of causing 26 of the 34 drums to be shipped to Rotterdam, Holland, on July 30, 1971; of causing the aforesaid material to be stored in these respective places. They are also accused of attempting to market this material." Burrell was charged in Count 2 of the indictment with transporting stolen property of a value in excess of $5,000 in interstate and foreign commerce and in aiding and abetting in the transportation, in violation of 18 U.S.C. §§ 2314 and 2.*fn2
Title 18, U.S.C. § 2314 provides in pertinent part: " Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting. Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud;
"Shall be fined not more than $10,000 or imprisoned not more than ten years or both."
Title 18, U.S.C. § 2 provides: " Principals. (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
There is abundant proof of the transportation of the stolen tungsten carbide powder in interstate and foreign commerce; however, Burrell's connection with these activities is less than clear. The district judge agreed that the evidence failed to establish that Burrell transported or caused the transportation of the stolen material in interstate commerce but deemed it sufficient to support his conviction for aiding and abetting the transportation.
In evaluating the sufficiency of the proof of Burrell's association with the venture we are cognizant that it is the law that more than mere presence is required in order to convict. It is also the law that evidence of an act of relatively slight importance may warrant a jury's finding of participation in a crime. United States v. Garguilo, 310 F.2d 249, 253 (2 Cir. 1962); cf. United States v. Barber, 429 F.2d 1394, 1397, n. 4 (3 Cir. 1970). Participation may also be shown by circumstantial evidence as well as by direct evidence. United States v. Garguilo, supra.
A careful examination of the record and a study of the brief and argument of counsel for the United States sums up all the evidence in respect to Burrell's alleged participation in the conspiracy.
We resume it here: The testimony of Paul West established that Burrell did travel to Tortola in British Virgin Islands in the company of co-defendants Poland and Hendricks in the latter part of April 1971, and it is a fact that he arrived on Tortola on the very same day as the shipment of stolen tungsten carbide powder. At this time arrangements were made between West and Hendricks to ship the material to Europe and a telephone call was made to Arnold Rostan. It was the intention of Hendricks to have Rostan serve as sales agent for disposition of the tungsten carbide; however, this was not mentioned during this initial telephone conversation.
There is no evidence whatsoever, or at least none is pointed out to us and we can find none, that Burrell was present while this call was made or took any part in it. Additionally, the transcript of the trial at 531 states:
"Q. On direct examination, sir, all you stated was that you saw the two of them [Burrell and Poland] in Tortola at that time, is that correct?
Q. And can you tell me, sir, whether or not there was any discussion as to this tungsten carbide or this material in their presence or that they participated in?
A. None that I remember them participating in, no.
It is also shown by West's testimony that in late July of 1971, Burrell was present at a meeting with West in Palm Beach, Florida, at which time co-defendants Hendricks and Poland were also present. At this meeting, an attempted sale of the stolen tugnsten carbide powder was discussed in Burrell's presence. West testified at Transcript 489-491, as follows:
"A. I had a meeting with Ed Hendricks at that time.
Q. And what was discussed at that time?
A. Well, I told Ed what I had done in England and I told him that the trip was unsuccessful, and I told him that I could not handle this any longer and that I needed some money because my wife had received no money during the time I was gone.
Q. Let me ask you this: Who paid your expenses in going over to Europe with respect to your sales attempts?
A. I paid the expenses. I paid all the expenses on the material.
Q. What did Mr. Hendricks say at that time?
A. Well, he said that he would give me some money as soon as possible and that he or someone else would continue to try to sell the material.
Q. At the time that you met Mr. Hendricks in West Palm Beach or Palm Beach, was anybody with him?
Q. And who would they be?
A. The two gentlemen sitting here.
Q. Could you indicate them to the jury?
A. Yes, those two gentlemen right there.
Mr. Barr: Okay. Let the record reflect that the witness has indicated the defendants Edward Poland and Delmar Burrell.
Q. Now, when you told Mr. Hendricks that you weren't successful, again, he indicated that somebody else, either he or somebody else would try to sell it, is that correct?
Q. Did you give him any information or anything to indicate what companies might be interested in this material?
A. Yes, I gave him the names of the companies which I thought were possible buyers, not the lists of companies that I had called already, but the ones that I either had not called yet or the ones that looked as if they were interested. * * *
Q. Now, after this meeting with Mr. Hendricks and at which the other two defendants were present, when was your next contact with respect to this material by one of the defendants?
A. I believe it was Mr. Poland called me from someplace in Europe.
Q. And what did he want at that time?
A. He asked if I would authorize him to receive samples of this material from the place where it was stored. . . ."
It is not shown that Burrell had anything to do with the telephoning, nor is it clear that the powder was discussed in his presence as being stolen powder. If the latter had been shown Burrell might have been charged as an accessory after the fact and concealing the fact that stolen property had been in interstate commerce, but the prosecuting attorney made no attempt to bring such facts upon the record.
The limited extent of Burrell's participation in the meeting was clarified on cross-examination. We ...