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United States v. Robert

decided: April 15, 1975.

UNITED STATES OF AMERICA
v.
ROBERT LOUIS JOHNSON JOSEPH CAPPUCCI JOHN GRANDINETTI ROBERT FAPIANO ANTHONY JOSEPH CARARO JOHN GRANDINETTI, APPELLANT IN NO. 74-1935, JOSEPH CAPPUCCI, APPELLANT IN NO. 74-2161



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 148-73).

Van Dusen, Gibbons and Hunter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

Appellants Grandinetti and Cappucci were indicted, along with three others, for conspiring in violation of 18 U.S.C. § 371 to commit the offense, set forth in 18 U.S.C. § 2314, of knowing and wilful transport in interstate commerce of stolen goods, wares and merchandise of a value of $5,000 or more. There is only one substantial issue presented by their appeals.*fn1 They specifically requested that the jury be instructed, in accordance with the authorities in the Second Circuit,*fn2 that in order to convict on a conspiracy count the jury must find that the conspirators had specific knowledge of the interstate transportation of the stolen goods which was the predicate for federal jurisdiction. At the time of the trial, in April and May of 1974, this circuit had never adopted Judge Learned Hand's formula, first announced in United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), that the government must prove "anti-federal" intent in order to prove a conspiracy to commit a substantive offense which did not require such an intent. See United States v. Iannelli, 477 F.2d 999, 1002 (3d Cir. 1973), aff'd on another ground, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616, 43 U.S.L.W. 4423 (1975), which involved a conviction both under 18 U.S.C. § 371 and under 18 U.S.C. § 1955. When the case was argued on January 24, 1975, we were aware that certiorari had been granted in United States v. Alsondo, 486 F.2d 1339 (2d Cir. 1973), rev'd sub nom. United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541, 43 U.S.L.W. 4404 (1975), and that the case had been argued on November 19, 1974. Since the government at oral argument conceded that an affirmance by the Supreme Court in United States v. Feola would mandate a reversal, this panel concluded that the case should be held until the Supreme Court acted.

On February 12, 1975 another panel of this court, in United States v. Pepe (DiGiacomo), 512 F.2d 1129 (3d Cir. 1975),*fn3 reversed a conviction in a case where there was a complete absence of proof of the facts giving rise to federal jurisdiction. Dictum in the case suggested for the first time that this circuit would require the so-called Crimmins charge with respect to a conspirator's knowledge of the federal jurisdictional facts.

If the dictum in United States v. Pepe, supra, was the binding circuit precedent we would be required to reverse.*fn4 However, on March 19, 1975, the Supreme Court in United States v. Feola, supra, reversed United States v. Alsondo, supra, rejected the Crimmins line of cases and approved the result in United States v. Iannelli, supra on that point.*fn5 Thus the district court properly declined to charge defendants' request to charge No. 15.

The judgment appealed from will be ...


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