Fairchild and Kerner, Circuit Judges, and Doyle, District Judge.*fn1
JAMES E. DOYLE, District Judge.
A jury returned a verdict finding defendant Machen guilty of aiding, abetting, counseling, commanding, inducing and procuring the possession by defendants Bock and Dobbins of goods stolen from interstate commerce, in violation of 18 U.S.C. § 659. Dobbins and Bock were found guilty of the principal offense of possession. Judgments were entered against all three defendants and sentences were imposed. Dobbins and Bock have abandoned their appeals. We are presented with the appeal by Machen alone (he will be referred to herein as "the defendant").
The indictment charged that on August 7, 1966, at Joliet, Illinois, Dobbins and Bock were in possession of certain stolen goods: some drums of nickel pellets, some metal house mailboxes, and some cartons of assorted General Electric Company products.
Viewed most favorably to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942), the evidence with respect to August 7, 1966, is as follows:
At about 3:00 p.m. agents of the Federal Bureau of Investigation observed a truck-tractor and trailer backing into a warehouse shed at 326 North Maple in Joliet. The shed had been under surveillance on several previous days.
The agents, pursuant to a search warrant, entered the shed shortly after the truck had entered it. They observed Dobbins maneuvering this truck next to a Tucker Freight Line tractor-trailer unit. The trailer of the Tucker unit was backed against a flatbed trailer at the rear of the shed. On the flatbed trailer were several two-wheel handtrucks. The Tucker trailer contained 88 drums of nickel pellets. During a previous surveillance the agents had observed that a tarpaulin fastened with ropes covered the Tucker trailer. Now the ropes were loose and the tarpaulin had been moved two to three feet along the trailer. The trailer doors of the unit backed into the shed by Dobbins were open and fastened on the outside of the trailer. Both this tractor and this trailer bore license plates which were later shown to have been issued to defendant Machen. On the side of the tractor was lettered "H. Machen, Phillipsburg, New Jersey."
After the agents entered the shed, they found Dobbins in the cab of the unit he had been backing in. Bock was found at the rear of this unit. Both men were placed under arrest. Bock was wearing work clothes and work gloves. Dobbins was searched later at an FBI office, at which time a receipt from the Ford Motor Credit Company was found on his person. The receipt indicated a payment by Dobbins of $926.58 for the account of "Howard Machen" and was dated May 12, 1966.
Subsequent to the arrest, an agent of the FBI conducted a search of the shed. He found 88 drums of nickel pellets, 394 cartons of metal house mailboxes and 47 cartons of General Electric products. All of these items were shown to have been stolen from interstate commerce on various dates: the nickel pellets on July 21, 1966; the mailboxes on January 16, 1966; and the General Electric products on or about March 14, 1966.
In a pile of rubbish in the shed the agent found a packing slip of the Max Factor Company. Evidence was introduced against defendant which showed that the packing slip was identical to the kind of packing slip found in a stolen shipment of Max Factor products on February 10, 1966, near Clayton, Indiana. That stolen shipment was found in a tractor-trailer unit belonging to defendant.
The evidence just recited is insufficient to support the conviction. There is no proof that the defendant was in Joliet, or near it, on the day in question; that he had any part in the events which resulted in the presence of the stolen goods in the Joliet shed; that he had any part in the presence of the Tucker trailer and tractor (which then contained the stolen nickel pellets) in the shed; or that he had any part in the presence of his own tractor and trailer there. Without such proof the record will not support the inference that the defendant Machen knew that the nickel pellets (and the other stolen goods in the shed) had been stolen, or that they were then and there in the possession of Dobbins and Bock, or that they were about to be transferred from the Tucker trailer to defendant's trailer.
The evidence that Dobbins had made a payment for defendant Machen's account with the Ford Motor Credit Company on May 12, 1966, supports the inferences that the two knew each other and had some financial dealings with one another; nothing more.
The critical gap in the evidence thus far reviewed arises from the peculiarities inherent in the concept of aiding and abetting possession, as contrasted with aiding and abetting a theft or aiding and abetting the subsequent disposition of stolen goods. One can conceive of a situation in which A is in knowing possession of stolen goods and in which B, aware that the goods are stolen and that they are in A's knowing possession, gives A a key to a building in which to store them. Whether this would constitute aiding and abetting A's possession or some other offense, we need not decide. Nothing approaching this situation is revealed by the evidence thus far reviewed. There is nothing to show that defendant Machen played any part in the chain of events by which Dobbins and Bock came into possession of the stolen goods in the Joliet shed, or that defendant Machen was facilitating their continuing possession of the goods at the time and place in question.
Thus the verdict can be sustained, if at all, only by resort to evidence which was received at trial, over objection, with respect to the Max Factor shipment. It follows that if the Max Factor evidence was improperly received, the ...