Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.
Count 1 of the indictment herein charged Philip Tenerelli, Michael Carengella, William Di Vito and Silvio Blandi with unlawfully, willfully and knowingly receiving 25 cases of Sunnybrook whiskey which had been stolen from an interstate shipment, and with knowledge by said defendants that said whiskey had been stolen; and Count 2 charged them with possession of such whiskey, all in violation of 18 U.S.C.A. § 659. The case was tried to a jury. A severance was granted as to Tenerelli, who changed his plea to guilty and testified for the government. Motions for judgments of acquittal were denied and the jury rendered verdicts of guilty on both counts. Motions for new trials were denied and the three defendants who have appealed were sentenced to several concurrent sentences of 5 years.
A motor truck carrying a cargo of Sunnybrook whiskey, enroute from Louisville, Kentucky, to Iowa, was "hi-jacked" near Chicago Heights, Illinois, on February 23, 1951. Three men in an automobile forced the driver to stop the truck, blindfolded him, and stole the cargo. The driver was unable to give a description of the three men.
Philip Tenerelli at that time was the operator of a liquor store and bar in Chicago. He had known defendant Michael Carengella for some 6 or 7 months prior to February, 1951. On March 2, 1951, about 6:00 p.m., Carengella approached Tenerelli at the latter's place of business, offering to sell him 25 cases of Sunnybrook whiskey at $25 a case, and Tenerelli agreed to purchase at that price. Carengella told Tenerelli to have $500 the following Monday, and asked whether he could immediately bring in the cases of whiskey,*fn1 and Tenerelli replied, "Go ahead, just bring it in the back." Tenerelli saw three men carrying in the cases of whiskey, one of whom was Carengella, but he did not know and at the trial could not identify the other two. Tenerelli testified that Carengella told him on the date when the whiskey was delivered "that they would be in Monday and pick up the money." Tenerelli testified that on Monday two persons whom he did not know came to his saloon; that at the time the place was dimly lighted and there were other patrons present, and that he was busy at the bar; that one of the two asked if he had the money, but he did not know which one made the inquiry; that he gave one of them $500 but again he did not know who it was that received the cash. He was unable to describe the physical appearance of the men or their wearing apparel, except that they were neatly dressed.He did say at the trial that he thought defendants Di Vito and Blandi were the persons who came into the saloon and that one of them received the $500. Tenerelli further testified that on the following Wednesday, pursuant to a previous arrangement, he paid Carengella $125, the balance of the agreed purchase price.
Tenerelli testified that on two subsequent occasions, Blandi visited him and inquired whether he had been questioned by the police; that after he replied in the negative, he was told by Blandi at one time, "You don't know me," and at the other, "Well, if they do, just you don't know me, that is all." He also testified that about two months before the trial Blandi inquired whether he was being questioned by the police, and that he again replied in the negative.
Di Vito testified at the trial he had been employed as a salesman for an aluminum awning company for more than a year prior to his arrest. There was no evidence of any previous police record. Di Vito denied any knowledge of or participation in the sale of whiskey, or that he ever had possession of same. Prior to the trial Di Vito and Blandi were interviewed on several occasions by police and F.B.I. agents, but they consistently maintained they were innocent of the charges.
Tenerelli stated on the stand that he expected a consideration for testifying, and that his attorney told him if he co-operated with the Assistant United States Attorney and testified for the government, he might receive probation. After he trial Tenerelli was placed on probation.
The evidence discloses that Carengella had possession and control of the 25 cases of whiskey on Friday, March 2, when he delivered same to Tenerelli. Di Vito and Blandi do not come into the picture until Monday, March 5, and then only as the result of the somewhat shaky identification made by Tenerelli at the trial. However, on this appeal we must consider Tenerelli's testimony as true.
Hence, the only testimony in the entire record that Di Vito received 25 cases of whiskey and had same in his possession on March 2, 1951, is that he and Blandi came into Tenerelli's saloon on March 5, and that one of the two said to Tenerelli, "Have you got the money?" and that one of the two received $500 from Tenerelli. The testimony against Blandi is the same, except that he subsequently asked Tenerelli questions as to police investigations as hereinbefore stated.
It is apparent there is no evidence on which to base a conviction of Di Vito and Blandi, unless they can be said to be aiders and abettors in connection with the receipt and possession of the whiskey by Carengella. Title 18 U.S.C.A. § 2 provides that whoever aids or abets another in the commission of an offense against the United States is guilty as a principal. Di Vito and Blandi were not charged in the indictment as aiders and abettors, but this is not necessary since aiders and abettors may be charged directly as principals. Pearson et al. v. United States, 6 Cir., 192 F.2d 681, 694; O'Brien v. United States, 7 Cir., 25 F.2d 90.
One is guilty as an aider and abettor when he consciously shares in any criminal act. Nye and Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 93 L. Ed. 919; United States v. Johnson, 319 U.S. 503, 518, 63 S. Ct. 1233, 87 L. Ed. 1546. The rule is expressed in the case of United States v. Williams, 341 U.S. 58, 64, 71 S. Ct. 595, 599, 95 L. Ed. 747, in this language: "Aiding and abetting means to assist the perpetrator of the crime. * * * To be present at a crime is not evidence of guilt as an aider or abettor. Hicks v. United States, 150 U.S. 442, 447, 450, 14 S. Ct. 144, 145, 147, 37 L. Ed. 1137. Cf. United States v. Di Re, 332 U.S. 581, 587, 68 S. Ct. 222, 225, 92 L. Ed. 210".
We do not overlook the testimony of Tenerelli that at the time Carengella delivered the whiskey to him on March 2, he told him "that they would be in Monday and pick up the money." However, neither Di Vito nor Blandi were present at that conversation, and it is elementary that such testimony could not be used against them. On objection by their counsel the district court so ruled. Hence, in considering the case against Di Vito and Blandi that statement must be disregarded.
There is not a scintilla of evidence in this record that Di Vito and Blandi knew the whiskey was stolen. While mere possession of recently stolen property warrants the inference of guilty knowledge unless a satisfactory explanation of possession is made consistent with innocence, such an inference cannot apply here. There is no proof in the record that Di Vito and Blandi ever had any actual or constructive possession of the whiskey so that the inference might be effective against them. Surely the aiding and abetting statute does not give rise to the inference of knowledge on the part of Di Vito and Blandi that the whiskey was stolen. There is nothing in the record to show possession by Carengella on March 2, 1951, was also possession by Di Vito and Blandi. The paying of $500 by Tenerelli to Di Vito and Blandi three days after ...