Hastie, Chief Judge, and McLaughlin and Adams, Circuit Judges. Hastie, Chief Judge (dissenting).
Angelo Grasso was convicted, after a jury trial in the District Court of the District of New Jersey, of having in his possession goods -- television sets and radios -- stolen while being shipped in interstate commerce, and of conspiracy to possess such stolen goods.*fn1 Grasso now appeals, assigning as error certain instruction given to the jury during the course of the trial, portions of the Court's final charge to the jury to which counsel did not object, and the insufficiency of the evidence supporting the verdicts of guilt on each count of the indictment.
The evidence showed that the television sets and radios, valued at over $40,000, were stolen by an unknown person while being transported in interstate commerce. Direct testimony revealed that sometime after the theft, Grasso's alleged co-conspirator, Benito Onorato, arranged to hide the stolen goods in a garage owned by one Gustave Mayer,*fn3 pursuant to a scheme Onorato had contrived with Mayer prior to the theft of the shipment in question. At trial Onorato*fn4 testified that he and Grasso drove to Mayer's garage and that the trailer load of television sets arrived at the garage immediately thereafter.*fn5 Mayer testified that during the time the television sets were stored in his garage, he was present while Grasso and Onorato were attempting to raise money to pay for the stolen goods. Thereafter, the television sets and radios were removed from the garage, and still later the F.B.I. apprehended Grasso and his confederates.
Grasso's first contention relates to the Government's impeachment of its own witness, Onorato, by the introduction of Onorato's inconsistent pre-trial statements. Grasso concedes that in the circumstances presented here it was proper to permit the Government to impeach Onorato, but he argues that the District Court improperly instructed the jury regarding the purpose of introducing Onorato's prior statements. On at least two occasions the Court cautioned the jury that Onorato's prior inconsistent statements were to be considered only for the purpose of "neutralizing" Onorato's in-court testimony and "not to establish any facts." In addition to the instructions given twice during the trial, the Court in its final charge to the jury pointed out that:
"The purpose of showing these prior contrary statements [made by Onorato] was not for the purpose of proving the truth of such statements, but to discredit or neutralize the effects of such adverse testimony.
Therefore, members of the jury, in considering the testimony of this witness, you are to take into account the prior self-contradictory statements made by him, and to offset the one against the other, where they may have been shown to be contrary.
Thus, you will neutralize the effect of each against the other. You are to limit the effect of these contradictory statements to this neutralization."
Grasso's attorney, when asked if he wished to take exception to this portion or any other portion of the charge, stated that the Court's instructions were "satisfactory." However, Grasso now complains that the Court's instructions to the jury during trial and the Court's final charge were inadequate, because the Court did not include therein language to the effect that Onorato's prior inconsistent statements "could have no legal tendency to establish the truth of their subject matter."
Rule 30 of the Federal Rules of Criminal Procedure states, "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Nevertheless, we are urged to treat the District Court's instructions as plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. This Court's power under Rule 52(b) is discretionary and may be exercised only to prevent a manifest miscarriage of justice. United States v. Provenzano, 334 F.2d 678, 690 (3rd Cir. 1964); see Lopez v. United States, 373 U.S. 427, 436, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963); United States v. Restaino, 405 F.2d 628, 630 (3rd Cir. 1968); United States v. Casavina, 368 F.2d 987 (3rd Cir. 1967). Although the Court's instructions during the trial and its final charge to the jury may not have contained language strong enough to satisfy Grasso's attorney at the time of the appeal, at trial he did not find such omission worthy of an objection.*fn6
We cannot agree that the choice of words employed by the District Court in this case rises to the level of plain error, particularly when on three separate occasions the Court clearly warned the jury not to consider Onorato's prior inconsistent statements as probative of facts contained therein, but only to "neutralize" Onorato's direct testimony.
Turning to Grasso's second contention, we encounter again the interdiction of Rule 30. In its final charge the Court instructed the jury that if they should find as a fact that Grasso had possessed the stolen goods, either "actively" or "constructively," they might infer an essential element of the crime -- that Grasso knew the television sets were stolen. Grasso now argues that there was no evidence demonstrating his direct possession of the stolen goods, and thus the jury must have inferred "knowledge" on the part of Grasso from his co-conspirator's possession of the television sets. It is contended that such an inference, when drawn from "constructive" possession, is impermissible. In support of this argument, Grasso cites United States v. Russo, 123 F.2d 420 (3rd Cir. 1941).
Russo, however, is distinguishable from the present case. The defendant in Russo was a partner in a garage and trucking business. His responsibilities involved primarily truck driving. Russo had little reason to enter the garage operated by the partnership, and in fact did so only occasionally. Although cartons of stolen cigarettes were stored in trucks that were parked inside the garage for several days, there was no evidence whatsoever that Russo had entered the garage while the trucks containing the stolen cigarettes were there, nor was there any evidence at all indicating that Russo knew contraband was being concealed in the garage. Not only was the prosecution unable to produce any evidence which might support an inference of Russo's guilty knowledge, but also the transcript of the trial contains direct evidence given by Russo that he had not entered the garage during the relevant time and was completely unaware that merchandise had been hidden therein. Hence, the Russo panel held no more than when the only proof of a defendant's guilty knowledge is his participation in an innocent business relationship, there is insufficient evidence to ...