Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
LeRoy Wiley, herein referred to as defendant, appeals from a judgment of the district court upon a finding of guilty, entered following a trial by the court without a jury, by the terms of which judgment defendant was sentenced to imprisonment for a period of three years.
Defendant's conviction was on Count II of an indictment which charged him and Ulysses McGhee, Joseph Helen, Joseph M. Kelley and Roman Jackson with unlawfully, willfully, knowingly and feloniously having in their possession certain dresses, unlawfully stolen while moving in an interstate shipment and known by them to have been stolen; in violation of 18 U.S.C.A. § 659.*fn1
We state certain controlling facts established by the evidence.
There was a theft of goods in interstate commerce on October 23 or 24, 1957. A truck containing the stolen goods was first seen by Federal Bureau of Investigation agents about 10:45 A.M. October 24, 1957, when it was parked at the rear of a house near 57th and La Salle Streets, in Chicago. The rear doors were partially open, and five men were standing behind it, some of whom then entered an automobile and the others got into the truck. Both vehicles then proceeded to La Salle Street and Chicago Avenue, where they parked. Defendant was in the vicinity of the truck while it was on Chicago Avenue, when he was first observed to be a participant in the activity. He was seen to reach into the automobile and to remove from it a large carton marked with the name, "Apex Consolidators, Chicago, Illinois," the firm from which the merchandise in question had been stolen. Although defendant was not again observed at that location, the automobile made several trips during the afternoon to and from the place where the truck was parked. Thereafter, codefendant McGhee drove the truck back to 57th and La Salle Streets. Defendant was next seen at 5646 South La Salle at or about 10 A.M. on October 25th, leaving the rear of 5646 South La Salle at or about 10 A.M. on October 25th, leaving the rear of 5646 South La Salle Street, and accompanying McGhee to the truck where McGhee entered the rear while defendant remained on the ground.After five minutes both defendant and McGhee went back into the house and about 11 A.M. defendant and the codefendants came out of the house and approached the truck. All ran upon the approach of a police squad car, and returned to the vicinity of the truck after they had "looked around". At that point defendant was arrested.
When taken to FBI headquarters at 11:15 A.M., defendant said that on October 24, 1957 he sought to procure a buyer or "fence" for the stolen goods, but his efforts were then unsuccessful and that one Joe Johnson then directed him to appear at the La Salle Street premises and accompany the goods to 36th and Kedzie, where a buyer was. He stated that he knew the goods were stolen and he was to receive 5% of the sale proceeds.
Defendant offered no evidence at the trial.
1. In this court his counsel contend that the evidence is insufficient to sustain a finding of guilty beyond a reasonable doubt that the defendant possessed the goods named in the indictment, either actually or constructively.
There was evidence that Ulysses McGhee, codefendant, was driving the truck, that McGhee and defendant came out of the house and walked to where McGhee opened the cargo department of the truck and got in while it contained the goods. Therefore it is clear that defendant participated in the transaction and thus assisted, aided and abetted in McGhee's felonious possession of the goods. United States v. Maroy, 7 Cir., 248 F.2d 663, 666. While a person's mere presence where an unlawful transaction takes place would not make him guilty as an aider or abettor, in the instant case defendant's activities and admissions show that he aided and abetted the unlawful possession with the purpose of helping the other defendants to procure an outlet for the stolen merchandise. United States v. Rappy, 2 Cir., 157 F.2d 964, 966.
Under the facts in this case possession by defendant does not necessarily mean physical custody. The facts show possession of stolen property by defendant with knowledge that it had been stolen.
For these reasons, the judgment insofar as it adjudged defendant guilty, is affirmed.
2. However, another question is presented for our determination. Before sentence was imposed on defendant, his counsel asked the court to consider granting probation to defendant, and it was admitted by the government attorney that defendant had no prior criminal record. It was uncontradicted that he had been married for 12 years and that his family consisted of two girls. He was employed in the Bureau of Sanitation of the City of Chicago, where he had worked almost 5 years. The court responded, saying in part:
"* * * Had there been a plea of guilty in this case probably probation might have been considered under certain terms, but you are all well aware of the standing policy here that once a defendant stands trial that element of grace is removed from the consideration of the Court in the imposition of sentence."
18 U.S.C.A. § 3651, provides:
"Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States, except in the District of Columbia, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place ...