APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Crim. No. 74-379.
Van Dusen, Adams and Rosenn, Circuit Judges.
The theft of 422 cases of Excedrin from an interstate shipment by motor carrier is the genesis of the criminal prosecution which is the subject of this appeal. Defendants William Trotter and Vincent Nuzzo were tried to a jury in the United States District Court for the District of New Jersey and convicted on all three counts of an indictment charging (count I) conspiracy to steal and possess part of an interstate shipment of freight in violation of 18 U.S.C. § 371 (1971),*fn1 (count II) theft of freight from an interstate shipment in violation of 18 U.S.C. § 659 (1971),*fn2 and (count III) possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659 (1971).
Nuzzo was sentenced to three years imprisonment and a fine of $2500 on each count to run concurrently. Trotter was sentenced to eighteen months imprisonment on each count to run concurrently. Both defendants appealed. We affirm.
During the last week in December 1973, two thousand cases of Excedrin were shipped from St. Louis, Missouri, to the carrier's terminal in Carteret, New Jersey, by truck trailer bearing double seals, one of the manufacturer, Bristol-Meyers (Bristol) and the other of the carrier, Time D.C. (Time). The shipment arrived intact with seals in place. On December 31, 1973, Trotter, an employee of Time, drove the trailer of Excedrin from the Carteret terminal to Bristol's plant in Hillside, a distance of seventeen miles, leaving the terminal at 8:32 A.M. and arriving at his destination at 10:45 A.M. Although both seals were intact when the trailer left the terminal, upon arrival at Hillside the seals were gone and 422 cases of Excedrin were missing.
On the same morning, two or three pallets containing boxes of Excedrin appeared in an area of Gerald Fantel's air conditioning repair shop in Metuchen, New Jersey, fifteen miles from the Carteret Terminal and twenty-five miles from Bristol's Hillside plant. Fantel, an unindicted co-conspirator in this case, periodically had allowed Nuzzo to use a storage area in his shop. He assumed Nuzzo was responsible for the presence of the Excedrin pallets even though they were placed near the loading dock rather than in Nuzzo's walled-in storage area. Therefore, Fantel later that day stopped by the restaurant which Nuzzo owned to ask him to move the pallets from the loading dock.
Fantel testified that Nuzzo responded to his request by claiming that Trotter owned the Excedrin and that Nuzzo was contemplating buying the goods. Fantel thereupon told Nuzzo to move the Excedrin out of his shop because the storage arrangement was with Nuzzo personally, not with Trotter.
On January 2, 1974, Fantel discovered the Excedrin still in the shop, and he renewed his request to Nuzzo to remove it from the building. Within a week, Nuzzo and Trotter, accompanied by a third person, loaded the Excedrin into a white unmarked van. Fantel aided in the loading.
Two days later, Nuzzo gave Fantel $200 in cash. According to Fantel's testimony, Nuzzo stated that the money came from Trotter because Nuzzo had not bought the Excedrin. Nuzzo continued to store sundry goods in Fantel's shop for two or three months thereafter.
In March 1974 the Metuchen police raided Fantel's shop. When Fantel learned of the raid, he went to Nuzzo to ascertain what had happened. Fantel testified that Nuzzo assured him in the presence of Nuzzo's wife that nothing would happen and Nuzzo would pay half of Fantel's legal expenses. Fantel consulted an attorney and subsequently met with agents of the FBI to whom he gave information in return for a reduced charge of a misdemeanor.
On appeal, defendants primarily contend that the trial judge committed prejudicial error in: (1) denying Nuzzo's motion for acquittal; (2) admitting an extrajudicial hearsay statement by Nuzzo to be used against the defendant, Trotter; (3) admitting evidence of other crimes against the defendants; (4) failing to maintain a position of impartiality during the course of the trial.
First, we consider Nuzzo's contention that there is insufficient evidence to support any count of his conviction. At the close of the Government's case, Nuzzo moved for a judgment of acquittal for lack of evidence. The motion was denied, and the defense proceeded to introduce its evidence.*fn3 At the close of all the evidence, both defendants moved for judgments of acquittal, pursuant to Fed. R. Crim. P. 29(a). The motions were denied.
The Government does not contend that there is evidence that Nuzzo himself stole the Excedrin. Rather, it relies on Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), to support Nuzzo's conviction on the substantive theft count. In Pinkerton, the Court affirmed a conviction for substantive offenses solely on evidence that the defendant had participated in a conspiracy and that his co-conspirator had committed the offenses in furtherance of the conspiracy. The Court stated:
The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in ...