Swygert, Chief Judge, and Kiley and Pell, Circuit Judges. Pell, Circuit Judge (concurring).
This is an appeal from the conviction of two defendants arising out of the theft of 40,400 pounds of copper from an interstate freight depot in Greenfield, Indiana. Defendants Edward A. Greer and Alphonse P. Bartkus were each named in two counts of the fourcount indictment. Count One charged the defendants, four codefendants, and three named but unindicted coconspirators, with participation in a conspiracy having three unlawful objectives -- stealing from an interstate shipment of copper in violation of 18 U.S.C. § 659, transportation of the cargo in interstate commerce in violation of 18 U.S.C. § 2314, and concealing the stolen cargo in violation of 18 U.S.C. § 2315. Count Two charged Greer and two codefendants with the substantive violation of 18 U.S.C. § 2314, transporting copper from Greenfield to Chicago knowing it to have been stolen. Count Three charged Bartkus and one other codefendant with concealing and disposing of cargo they knew to have been stolen in derogation of 18 U.S.C. § 2315. Only Bartkus and Greer proceeded to trial since three codefendants entered pleas of guilty and another was granted a severance on motion of the Government. Both defendants were found guilty by the jury as charged. Post-trial motions were denied and each was sentenced to the custody of the Attorney General for concurrent terms of five years.
Greer contests the sufficiency of the evidence to sustain his conviction under Counts One and Two, the constitutional propriety of venue for Count Two in the Northern District of Illinois, and cites several trial errors stemming from the prosecutor's conduct and the joinder of Greer's case with that of Bartkus. Bartkus joins in Greer's challenges "where applicable" and additionally charges error arising from the prosecutor's closing remarks.
A brief outline of the evidence is in order. The principal witness for the Government was Ellis Young, an unindicted coconspirator. Young testified that while at home in Chicago in June 1966 he received a phone call from Greer in which Greer stated that he "had something" for Young. Young, joined by Phillip Kurtz and Thomas Harty, two codefendants, and Robert Harty, an unindicted coconspirator, drove from Chicago to Greer's home in Carmel, Indiana. Young related Greer's statement: "He told me he had a little copper, the driver was broken down and had transmission trouble, and that we would have three days with the load, if we could handle it." Greer further described the load of copper and its location.
Young, the Hartys, and Kurtz proceeded to Indianapolis where they stole a tractor from B & M Leasing Company for use in the theft of the copper. After stealing the copper from a disabled trailer in the Daniels Motor Freight Terminal in Greenfield, they drove to Chicago. In Chicago, they were met by John Carrino, another codefendant, who led them to the warehouse space he had rented. Since they were unable to unload all the copper, Young contacted Frank Nitti, an unindicted coconspirator, to arrange for the disposition of the remaining portion. Nitti reported to Young that he would store the copper in the garage of Samuel Tobias, a codefendant. When Tobias' garage proved to be too small, the stolen truck and trailer were sent to another location in Chicago where they were recovered by Federal Bureau of Investigation agents.
Young also related two phone conversations with Greer after the theft had occurred. He stated that Greer called him to inquire where the money from the sale of the copper was being kept. He then described calling Greer to arrange a meeting for the purpose of distributing the proceeds. According to Young, however, Greer never appeared to claim his share.
The Government also called Carrino to testify as to the renting of the warehouse and the sale of the copper remaining in the warehouse. He implicated Alphonse Bartkus by describing Bartkus' role in finding a place to store the copper.*fn1 He also described a subsequent conversation with Young in which he informed Young that the load was "hot," that he had been forced by Bartkus to have it removed, and that Bartkus had been instrumental in its disposition.
The remainder of the Government's case consisted of witnesses who described the interstate character of the copper shipment, its point of origin, its destination, and its value. Allen Hercamp, a truck driver employed by the Daniels Motor Freight Company, testified to carrying a load of copper belonging to Revere Copper and Brass, Inc. from Rome, New York, destined for St. Louis. Repairs to his truck necessitated stopping in Greenfield on June 27, 1966 and storing the trailer containing the copper in the local Daniels terminal. Hercamp testified that he next saw the trailer in Cicero, Illinois, at which time most of its load was missing.
Counsel for Bartkus presented no witnesses on Bartkus' behalf. Greer offered several witnesses who testified to his presence in Florida when the offense was committed. Morris Evans stated that in June 1966 several men visited Greer's Carmel home, including a man nicknamed "Rebel," which was Young's nickname, while Greer was away and Evans was temporarily living there. According to Evans, when Greer returned from Florida he called Young in Chicago to express his disapproval of Young's visits to his home in his absence. Greer also took the stand and described his first meeting with Young when both were incarcerated in the federal penitentiary in Terre Haute and a later meeting in Greer's home on Memorial Day in 1966. He then related the details of his stay in Florida between June 16 and July 6, 1966.*fn2 In addition, Clyde Smith, the manager of the Daniels terminal in Greenfield was called to the stand and, though he admitted knowing Greer, denied having told anyone about the location or contents of the shipment.
Greer claims that this evidence is insufficient to support the substantive charge in Count Two of the indictment that he "did transport and cause to be transported in interstate commerce" 40,400 pounds of copper which he knew to have been stolen. The Government's theory is that Greer aided and abetted in the transportation of the copper and, as such, under 18 U.S.C. § 2, is liable as a principal for the offense. According to the defense, the evidence supports only a charge of aiding and abetting the copper's theft, but not aiding and abetting transportation of the copper; lacking proof that Greer knew of the thieves' plans for the interstate conveyance of the copper, the Government may not charge him with complicity in its transportation. The Government's position is that an "aider and abettor" is responsible not only for the immediate acts he facilitates, but also for the other likely consequences of his acts. Since transportation of the stolen goods was a foreseeable consequence of their theft, the Government need not show specific intent to aid in this act. In addition, the Government maintains that knowledge of the interstate component of a criminal act is never a prerequisite to a finding of criminal liability.
We think the Government's standard for one who aids and abets a crime far too broad. Congress specifically provided for three separate crimes: theft of goods which were in interstate commerce (18 U.S.C. § 659), the transportation of stolen goods in interstate commerce (18 U.S.C. § 2314), and the knowing sale of such goods (18 U.S.C. § 2315). Since transportation and disposition of stolen goods are always "likely" consequences of their theft, the Government's standard effectively obliterates these distinctions. No matter what a defendant's participation was in the initial theft, he becomes responsible for all subsequent "likely" stages. Under this approach, the cumulation of punishments will always be an important danger.
Moreover, the Government's standard contradicts the prevailing case law on aiding and abetting. The seminal case is United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), in which Judge Learned Hand states that aiding and abetting requires that the defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."*fn3 This suggests two general components of aiding and abetting -- an act on the part of a defendant which contributes to the execution of a crime and the intent to aid in its commission. Analysis is complicated, however, where there is an extended course of criminal conduct and where, though the defendant's participation is limited to one stage, he is charged with aiding and abetting a subsequent one. We must then consider how far accomplice liability can be extended to include crimes other than the one (or ones) the accomplice immediately aided.
Accomplice liability is necessarily limited by the general principles of criminal liability. To allow a jury to infer an intent to aid in the commission of one offense from the demonstrated intent to aid in another earlier offense because the later crime is a foreseeable consequence of the earlier one, is to base criminal liability only on a showing of negligence rather than criminal intent. Model Penal Code § 2.04, Comment (Tent. Draft No. 1, 1953). The court will relax the intent component of aiding and abetting in a limited number of situations. We agree, for instance, that a defendant can be held responsible as an aider and abettor of a crime even where there is no direct proof that he intended to aid in the crime, if he is substantially involved in the chain of events leading immediately to it. Thus, the driver of a "getaway" car during a robbery who intends only to aid in the theft, can be charged with the crime of transporting the stolen goods although his participation in the subsequent transportation was inadvertent. The requisite intent may be inferred when the defendant's physical participation in the ...