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United States v. Braico

January 14, 1970

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LAWRENCE BRAICO AND RONALD ROUTA, DEFENDANTS-APPELLANTS. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. FRED DEMAIO, DEFENDANT-APPELLANT



Knoch, Senior Circuit Judge, Kerner, Circuit Judge, and Gordon, District Judge.

Author: Gordon

MYRON L. GORDON, District Judge.*fn1

This is an appeal from convictions entered against the three appellants. The charges stem from the sale in Chicago of goods stolen in Iowa.

Two of the appellants, Mr. Braico and Mr. Routa, were convicted of violating 18 U.S.C. § 2315 by receiving stolen property; the third appellant, Mr. DeMaio, was convicted of the same crime, but he was charged in a separate count of the indictment. In addition, all of the appellants, together with Mr. Fernandez, a seller of the stolen property, were convicted of violating 18 U.S.C. § 371, by conspiring to violate § 2315.

The appellants contend that the conspiracy was not properly charged or proved. While it is not denied that Mr. Braico and Mr. Routa were properly joined as defendants, it is urged that the joinder of those two with Mr. DeMaio was error. The appellants contend that this alleged misjoinder prejudiced each of them.

I. THE CONSPIRACY COUNT

The evidence showed that on August 2, 1967, two men, Mr. Fernandez and Mr. Garland, robbed a jewelry store in Bettendorf, Iowa. Afterward, they went to Chicago where they sought a buyer for the stolen goods. Mr. DeMaio bought approximately one-third of the goods for $2200; he offered to pay $3500 for the rest, but this offer was declined.

They then contacted the defendants, Mr. Braico and Mr. Routa, and offered to sell them the remaining goods for $4500. After Mr. Braico and Mr. Routa had made inquiries among acquaintances to whom they might resell the goods, they advised Mr. Fernandez and Mr. Garland that it would be difficult to resell the goods if they paid $4500 because "Johnny Diamond" (who was identified at the trial as Mr. DeMaio) had "put out the word" that he could get the remaining goods for $3500. However, after further bargaining, they purchased the goods for $4500.

No evidence was adduced at the trial as to any agreement existing at any time among all three of the appellants. No evidence was adduced that any of the three had had any understanding with Mr. Fernandez or with Mr. Garland prior to or contemporaneous with the robbery. These were unrelated purchases of the stolen goods by the appellants, and such transactions do not reflect a conspiracy in the absence of proof of an agreement as to this transaction or as to some other concert of action. United States v. Ford, 324 F.2d 950, 952 (7th Cir. 1963).

In United States v. Varelli, 407 F.2d 735, 748 (7th Cir. 1969), Judge Kerner, writing for this court, observed that certain named defendants

"* * * were all involved with the distribution of merchandise stolen in interstate commerce. None of these parties were involved with the theft of either the Polaroid equipment or the silver shipments. The relation of buyer and seller even with knowledge of the character of the goods being sold is insufficient to make the buyer a conspirator."

Because it is clear that no conspiracy was proved, we need not consider the alternative contention of the appellants that the indictment did not properly charge a conspiracy.

The government does not seriously challenge the appellants' contention that there was inadequate proof to support the conspiracy conviction. However, the government urges that the absence of proof as to a conspiracy does not require reversal of ...


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