Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 72 CR 397 - Philip W. Tone, Judge.
Tom C. Clark, Associate Justice (Retired),*fn** Robert A. Grant, Senior District Judge,**fn** and James E. Noland, District Judge.***fn**
GRANT, Senior District Judge.
The defendants, John Joseph Brennan and Roger Drain, were charged with possession of approximately one hundred and eighty-nine (189) Oklahoma City Housing Authority Bonds, stolen from an interstate shipment, knowing them to be stolen, in violation of 18 U.S.C. § 659 (Count II). In the same substantive count, Defendant Angelo Bartemio was charged with aiding and abetting that possession. All defendants were also charged with conspiracy (Count I). The jury found Defendants Brennan and Drain guilty of conspiracy and the substantive offense of possession. As to Defendant Bartemio, however, the jury acquitted him on the conspiracy count, but returned a verdict of guilty on the aiding and abetting count. All three defendants received prison sentences and have now instituted this appeal. We affirm.
The essential issues which have been presented for consideration in this appeal are as follows: (1) Whether the evidence was sufficient as a matter of law to prove defendants' guilt beyond a reasonable doubt; (2) whether the possession of stolen municipal bonds is within the scope of 18 U.S.C. § 659, and whether knowledge that the securities were stolen from interstate commerce is an essential element of a conspiracy to violate 18 U.S.C. § 659; (3) whether the two-count indictment charging Defendant Bartemio with aiding and abetting a violation of 18 U.S.C. § 659 and conspiracy under 18 U.S.C. § 371 was invalid as a matter of law as being duplicitous or multiplicitous, and whether the jury's verdict of acquittal on the conspiracy count renders the conviction of Bartemio void on the substantive count; and (4) whether the prosecutor's closing argument prejudiced defendants, denied them a fair trial, or violated Defendant Brennan's Fifth Amendment right not to testify.
The appellants assert, first of all, that the evidence upon which they were convicted was so circumstantial in nature that it was insufficient as a matter of law to support the charges of conspiracy, possession, and aiding and abetting. In particular, Appellant Bartemio argues that since the sole evidence against him as to aiding and abetting was highly circumstantial, his mere association with the other defendants was insufficient to convict him. Appellants Brennan and Drain, in turn, maintain that their status as passenger and driver, respectively, of the car in which the securities were found and their mere association with the securities is not sufficient to permit an inference that they were in possession of the bonds or that they had the requisite knowledge that the bonds were stolen. They argue, in effect, that the mere possession of stolen bonds is neither a violation of § 659 nor of any other federal statute.
We agree with Appellants Brennan and Drain that the fact that one is a mere passenger or driver of a vehicle in which there exists stolen goods does not, in itself, necessarily demonstrate possession of the goods or knowledge that the goods therein are stolen. United States v. Nitti, 444 F.2d 1056, 1059 (7th Cir. 1971); Pearson v. United States, 192 F.2d 681, 693 (6th Cir. 1951). We are also in accord with Appellant Bartemio's argument that one's mere association with a guilty person is not sufficient evidence to sustain a conviction. United States v. O'Brien, 174 F.2d 341, 345 (7th Cir. 1949). These cases are readily distinguishable from the case at bar, however.
In the present case, the evidence does not support Appellant Brennan's contention that he was a "mere passenger," or Appellant Drain's contention that he was "merely a driver," or Appellant Bartemio's contention that he was "merely associated" with guilty persons. On the contrary, the evidence adduced and all the reasonable inferences flowing therefrom viewed in the light most favorable to the government, in our opinion, not only substantially supports, but is legally sufficient to support the jury's verdict against each of the appellants. See Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). As to Appellants Brennan and Drain, the fact that the bonds were in marked bags and in plain view in the back seat of the car in which they were occupants, along with all the other evidence strongly tending to show their relationship or association with the bonds and other conspirators, is in our view sufficiently established in the record to support their conviction for conspiracy and for knowingly possessing the stolen securities. At the very least, it can be said that these appellants were in constructive possession of the goods; and this, it has been held, will suffice to establish possession under § 659. United States v. Parent, 484 F.2d 726, 732 (7th Cir. 1973).
Likewise, we are of the opinion that the evidence has amply demonstrated that Appellant Bartemio was a participant in, or associated with, the venture involving the stolen securities. Most notable here is the fact that the first five digits of his license plate were written on one of the brown paper bags containing bonds which was found in the back seat of Appellant Drain's car, and the fact that his name and telephone number were found in the possession of Drain and Brennan when they were arrested. Further, he was observed driving Barbara Quattrochi, the actual seller of the bonds, to the south side of Chicago to meet her source, and engaging in diversionary tactics to prevent anyone from following her (Quattrochi) to the O'Hare Inn where the sale of the bonds was to occur. Such activity, which is designed to contribute to the success of a criminal venture, has been held to be sufficient to support a finding of the jury that a person has aided and abetted in the commission of the offense. Nye & Nissen v. United States, 336 U.S. 613, 619, 93 L. Ed. 919, 69 S. Ct. 766 (1949). We are convinced that the evidence sustains a finding that Bartemio's activity in relation to the stolen securities has, in fact, met this test.
Accordingly, appellants' arguments based upon the sufficiency of the evidence and upon their alleged status as mere innocent bystanders must fail as being totally without merit.
All three appellants continue by arguing that the securities involved herein are without the scope of 18 U.S.C. § 659, and that therefore the conduct charged in the indictment is not proscribed by that statute. Further, it is Appellant Bartemio's contention, with Appellant Brennan joining him, that appellants were required to know that the property in question was stolen from interstate commerce in order for their convictions to stand, and that the trial court erred in failing to instruct the jury to this effect.
This court notes, however, that the possession of stock certificates stolen from interstate commerce is an appropriate subject for prosecution and has, in fact, been successfully prosecuted under § 659 in this Circuit. United States v. Ditata, 469 F.2d 1270 (7th Cir. 1972). We perceive here no compelling reason to depart from this established practice under the circumstances of the present case. Moreover, we have stated that this court has consistently affirmed conspiracy convictions where knowledge of the interstate element was not part of the trial court's instructions. United States v. Polesti, 489 F.2d 822, 824 (7th Cir. 1973). Knowledge of ...