Hastings, Chief Judge, and Duffy and Knoch, Circuit Judges.
Defendant was found guilty by a jury of having embezzled from a motor truck, goods that had been part of an interstate shipment of freight in violation of Title 18, U.S.C. § 659.
Prior to trial, defendant moved to suppress certain evidence. This motion was denied. Defendant's motions for a judgment of acquittal at the close of the Government's evidence and at the close of all of the evidence, were also denied.
The issues raised by defendant are: 1) Was there sufficient probable cause for the arrest and seizure; 2) Did the trial court err in failing to grant the motion to suppress evidence; 3) Did the Government fail to prove venue; 4) Did the trial court abuse its discretion by allowing the Government to reopen its proof to establish venue; and 5) Did the trial court err in allowing the Government to elicit a prior inconsistent statement from witness Gil under a claim of surprise.
Defendant Budge was a truck driver for Jones Transfer. On May 14, 1964, Budge was dispatched from the Jones Terminal in a truck loaded with various shipments recorded on eighteen waybills. Included in this cargo were three cartons of shoes in transit from Goldblatt Brothers, Rockford, Illinois, to George E. Keith, Brockton, Massachusetts. The merchandise listed on nine of the waybills, including the three cartons of shoes, was to be delivered to Lifschultz Fast Freight Company, Chicago.
Budge made his first stop at Lifschultz at about 8:35 a.m. Budge checked in with the Lifschultz receiving clerk and then reported to the checker who was to tally the shipments as they were unloaded. Budge then reported back to the receiving clerk who stamped all nine of the bills as received, after noting that all nine had been initialed by the checker.
A few minutes after Budge had moved on to his next delivery, the receiving clerk at Lifschultz discovered that one of the nine waybills was missing. This bill related to the three cartons of shoes in transit from Rockford, Illinois, to Brockton, Massachusetts. The receiving clerk immediately informed his superior, Joseph Sulli, of the missing waybill.
Before the FBI agents arrested defendant, they had been informed that the three cartons of shoes being shipped to George E. Keith of Brockton, Massachusetts, were on defendant's truck and should have been delivered to Lifschultz Terminal in Chicago. They knew these three cartons were part of the earlier shipment that defendant had delivered to Lifschultz on the same day, and that someone had practiced a deception involving the waybill for these three cartons.
Between 2:30 and 3 P.M. on May 14, 1964, FBI agents Parfet and Lee, and Mr. Sulli, the assistant operations manager at Lifschultz, initiated a surveillance of defendant. They saw the three missing cartons on the rear part of his trailer when defendant returned to Lifschultz to make a pickup unrelated to the morning delivery. After defendant had pulled away from the terminal and turned the first corner, he stopped the truck, went to the tailend thereof, and closed the doors. Defendant then continued to a fruit and vegetable market where he turned around a corner into an alleyway, stopping at the rear of the market.
While being closely observed by the agents and Mr. Sulli, defendant removed two of the three cartons from the tailend of the truck and took them into the market's storeroom. While defendant was carrying the second carton into the storeroom, the two FBI agents began running down the alley. When they reached the truck, they looked at the label on the one carton which still remained, and observed that it had been consigned by Goldblatt Brothers, Rockford, Illinois, to George E. Keith, Brockton, Massachusetts.
In determining whether the officials had probable cause for the arrest, we consider the fact that they knew of defendant's failure to deliver the three cartons of shoes to Lifschultz after he had had two additional opportunities to observe their presence on the tailend of the truck. Instead of so doing, defendant drove some distance to a fruit and vegetable market and unloaded two of the three cartons. The agents also had observed the label on the remaining carton. They were entirely justified in concluding the three cartons were in the process of being misappropriated from the authorized place of delivery, and that defendant was committing an offense in their presence.
In a recent case involving many similar circumstances, we held the agents had had probable cause to make the arrest. United States v. Nori, 7 Cir., 352 F.2d 910. We held there as we do here, that Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134, was and is readily distinguishable.
We hold there was no error in denying defendant's motion to suppress the three cartons of shoes ...