Swygert, Chief Judge, Major, Senior Circuit Judge, and Kiley, Circuit Judge.
MAJOR, Senior Circuit Judge.
Frank Nitti and Robert Anthony Harty, in a one-count indictment, were charged with the possession on June 28, 1966 of twenty-one cases of copper sheet, with knowledge on the part of each that it had been stolen, in violation of Section 659, U.S.C.A. 18. Upon waiver of jury trial defendants were tried by the court and found guilty, and judgment was entered accordingly. From this judgment Nitti (hereafter referred to as defendant) appeals.
Among the issues urged as grounds for reversal is that the evidence was not sufficient to support the charge. Inasmuch as we have concluded that this issue must be decided in favor of defendant, there appears no reason to state or discuss other issues presented.
There is no question but that the property described in the indictment, of which defendant allegedly was in possession, was in the course of interstate commerce at the time it was stolen. Thus, we need do no more than note that the shipment originated at Rome, New York, and was destined for St. Louis, Missouri. The property was being transported in a trailer drawn by a tractor, the driver of which parked it overnight at Greenfield, Indiana, from where it was stolen on June 27, 1966. The trailer bore the number 9770, and had a Daniels Freight plaque on the side. It was found by FBI agents on June 29, 1966, in a building at 4863 West Ogden Avenue, Cicero, Illinois, at which time it contained the property charged in the indictment to have been stolen.
The government's case is predicated solely on the testimony of Sergeant Wesley Hunter of the Chicago Police Department. Keeping in mind that we must consider his testimony in the light most favorable to the government, we quote the government's version of his testimony as contained in its brief: "Frank Nitti was one of several persons who were attempting to move a tractor and trailer into the rear of a building at 3943 West 5th Avenue, Chicago, Illinois, at approximately 9 p. m. on June 28, 1966; that after these persons were unsuccessful in their attempts, two of the men got into the tractor and proceeded away from the premises with the tractor and trailer; that defendant was one of those two men, specifically the passenger in the tractor, and that the other was Harty, who was the driver; that the trailer fit the description of one which, according to other testimony, had been unlawfully taken from its owner on the previous day and which had been loaded with the copper charged in the indictment as stolen; that the tractor and trailer were driven to 4863 West Ogden Avenue in Cicero, where Nitti assisted in bringing the unit into the building by opening the garage door; and that after a period of about five minutes, during which time defendant and Harty were in the building, they departed from the area together in the same automobile."
We note that the government in some respects overstates the testimony of Hunter. For instance, while Hunter was well acquainted with both defendant and Harty, he did not identify either as being in the group which was attempting to place the tractor and trailer in the building at 3943 West 5th Avenue, nor did he identify either as being the two men who drove the tractor and trailer away. He did testify that shortly thereafter, while the tractor and trailer stopped at the corner of Springfield and Harrison Streets, he looked into the cab and by the aid of artificial lights saw Harty in the driver's seat and defendant in the passenger's seat. He followed the tractor and trailer to the Ogden Avenue address, but he did not testify that defendant "assisted in bringing the unit into the building." He stated, "* * * the man on the passenger's side got out of the truck and went to the door of the building and the door opened. * * * approximately five minutes later the two subjects came out of the garage and got into a car that was parked in front of the building and proceeded east down Ogden."
We think it pertinent to note, also, that on June 29, 1966, Hunter made a report to the FBI of the events which he related in his testimony. Defendant was not arrested until October 4, 1966, more than three months later. No explanation was made at the trial as to the reason for the delay but the government on brief asserts that the FBI was engaged in a further investigation. If such be the case, it is of some significance that no further evidence was developed connecting defendant with the alleged offense.
The government on brief asserts, "Nitti's possession of the stolen property was thus established circumstantially by his active participation in the above described events," and that possession having been thus established, "the trial court could also properly infer the existence of guilty knowledge." With this argument we do not agree.
It would unduly prolong this opinion and perhaps serve no useful purpose to review the many cases called to our attention, as each depends on its own particular facts. Generally, it is held that possession is dependent upon the extent of the defendant's dominion and control over the stolen property.
We briefly analyze a few of the cases, typical of others relied upon by the government on the issue of possession of stolen property. The first case cited is United States v. Casalinuovo, 350 F.2d 207, 209 (CA-2), from which the government quotes:
"Accordingly, the courts have held the statute to reach 'constructive' possession as well as actual possession, i. e., such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant's dominion and control as if it were actual possession."
In that case there was placed in the possession of an employee of a store a quantity of merchandise for delivery but which was not delivered. The theft was reported to the FBI, the employee was arrested and made statements. Based thereon, the agents obtained a search warrant to search a building where they encountered the defendant and another person. Basement rooms were locked with a padlock and the defendant was the only person who had a key. He was the janitor, not the owner of the property. When the agents arrived with a search warrant, the defendant refused to unlock basement doors. In the presence of the defendant, the agents forced open a door and found some merchandise but not that which had been stolen. The agents then went to another locked room and again the defendant refused to unlock the door. The agents broke the door open and in the room found a part of the stolen property. It was on this and other circumstances that the court made the pronouncement above quoted and concluded that there was sufficient evidence of dominion and control to support a finding that defendant had constructive and perhaps actual possession of stolen property.
In Sterling v. United States, 333 F.2d 443 (CA-9), Sterling and one Fairbanks were charged among other things with the possession of six cases of whisky, stolen from a vessel moored in the port at Seattle. Fairbanks was the driver of a truck which he backed ...