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United States v. Anost

January 26, 1966


Hastings, Chief Judge, and Duffy and Schnackenberg, Circuit Judges.

Author: Schnackenberg


Spiro Anost and Joseph Cosentino, defendants, appeal from a judgment convicting them after trial by jury, for violation of Title 18, ยง 659, U.S.C. The indictment upon which they were tried charged unlawful possession of certain goods knowing them to have been stolen and which goods were a part of an interstate shipment of freight. They were sentenced to prison terms.

The sole error relied on is the court's alleged denial of the right of defendants to explain their possession of the stolen goods, thereby denying their constitutional right to interpose a valid and legal defense to the charge.

According to the government's proof, a shipment of spark plugs and miscellaneous parts was being transported from Flint, Michigan, to Spencer, Iowa, via a Chicago, Illinois, trucking terminal.

FBI agent Grundler testified that he followed a white truck during the daytime of May 7, 1964 to Laramie and 38th streets where it backed up to a red Ford truck in a parking lot area. He saw two persons transferring cartons from the red truck to the white truck. Grundler was joined by agent Lee and talked to the two men who were in the truck. They declined Grundler's offer of help. The agents then identified themselves.

Frank Faciano testified that the red truck had been stolen from him during the night of May 4, 1964, in Northlake, Illinois.

There was evidence that defendant Anost had known defendant Coseentino for four or five years as being engaged in a trucking business at 2045 Archer Avenue, Chicago, which was a combined filling station and truck terminal.

Outside the presence of the jury, counsel for defendants made two offers of proof, which expressly included (with the approval of the court) certain direct examination of both defendants and cross-examination by government counsel, all of which is incorporated in the record herein.

It thus appears by the offers that:

(a) Cosentino would have testified as follows :

On the morning of May 7, 1964, one Chang*fn1 called him at his home and informed him that Mr. Howard*fn2 had called Chang. Howard said he had a truck which broke down in Cicero and wanted somebody to exchange it and deliver it for him; that the freight that was in the truck that was broken down be put into another truck. After that conversation with Chang, Cosentino called Anost on the telephone at Anost's home. Between the first telephone conversation he had with Anost and the second, Cosentino had a telephone conversation with a man who identified himself as Mr. Howard. Howard said he had a truck broken down and that he needed a driver and a helper to switch the load and to deliver it. Cosentino told Howard that he had nothing in which to move the load and Howard said to meet him at 22nd and Laramie and that he would have a truck for him. After he finished talking with Howard, he then called Anost again. Cosentino met Mr. Howard on the corner of 22nd and Laramie. Howard was the second person whom he had asked if his name was Howard. After Howard identified himself, Howard asked Cosentino if he was the driver and he said he was. Howard again told him where the truck was and gave him the key for the red truck to be put either in the glove compartment or under the floor board. With respect to the white truck, Howard told Cosentino that the truck was across the street and that he was supposed to load the freight from the red truck into the white truck. Howard gave him $50 for doing the job, and told him to deliver the merchandise after it was loaded to Harry's Auto Parts, Sedgwick and Ogden Avenue. Howard did not tell him that the merchandise in the truck was stolen; nor did he say anything from which Cosentino might be led to believe that the merchandise might be stolen.

(b) Anost would have testified as follows :

When Cosentino called him Anost said that he was getting ready to leave the house. Cosentino asked him if he would like to make some extra money and told him that he had received a call at home from the truck terminal on Archer Avenue, that somebody wanted his services for a trucking job. Anost asked what it consisted of and Cosentino said he didn't know at the time, that he was to wait at home to get another call. Anost said he was leaving his house to go to Empire Auto to get his car fixed. Cosentino said that he would call Anost at the garage. Anost then left his home, drove his car to Empire Auto and talked to Paul Pasquale, the owner of the garage to whom he turned over his car for repairs. While there Anost received a telephone call from Cosentino between 10:45 and 11:00 A.M. Cosentino said that the man called him at home for the trucking job and said that a truck broke down between 37th and 38th on Laramie and they had to transfer a load. Cosentino said he was supposed to pick up a truck to make the transfer. He asked Anost if he would pick up the truck and the latter said he would. Anost asked where the truck was supposed to be and Cosentino told him to go to the vicinity of Cermak and Laramie on a corner and meet a Mr. Howard. Anost asked what Howard would look like. Cosentino said that Howard would be out in front of the restaurant on the corner and just to ask for him. Cosentino said he did not know what Howard looked like. Cosentino told him to be there between 11:00 and 11:15. Anost said he could not possibly get there because his car was ...

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