Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 740 -- Prentice H. Marshall, Judge.
Cummings, Chief Judge, Coffey, Circuit Judge, and Henley, Senior Circuit Judge.*fn*
Defendants-appellants, George Green and Barbara Waldo, were convicted of conspiring to receive, possess, and sell goods known to be stolen from an interstate shipment in violation of 18 U.S.C. §§ 371, 659. Waldo was also convicted of one count of possessing stolen goods in violation of 18 U.S.C. § 659. We affirm.
On August 4, 1982 an indictment was filed charging George Green and Barbara Waldo with conspiring to possess jewelry stolen from interstate commerce and possession of stolen jewelry. Jerry Waldo, Robert Tuohey, Marilyn Tuohey, and Richard Neubeck were also charged in the same indictment. Green and Barbara Waldo were tried to the court and found guilty. Neubeck was acquitted and the others were found guilty after entering pleas of guilty. The testimony at trial established that on April 26, 1981, Morris Goodman, a jewelry designer and manufacturer, flew via U.S. Air from Indianapolis to Chicago, and boarded a United Airlines flight to Spokane, Washington. Two sample bags Goodman checked as baggage in Indianapolis failed to arrive as scheduled in Spokane and were last seen by a United Airlines supervisor on the evening of April 26, 1981 in the United Airlines Baggage Facility at O'Hare International Airport, Chicago, Illinois. A search of the Baggage Facility for the lost jewelry conducted the following day proved unfruitful. The sample bags contained approximately 2,000 rings and other various pieces of jewelry with a retail value of approximately $800,000. It was established that the defendant George Green and Jerry Waldo (Barbara Waldo's husband) were employed by United Airlines as baggage handlers at O'Hare International Airport and were working during the early morning hours of April 27, 1981. At trial a United Airlines supervisor testified that it would not have been too difficult for an employee to remove the luggage from the Baggage Facility to the adjacent public parking lot without being detected.
At trial, the government called Mr. Richard Tisch, a self-employed retail jeweler, who testified that in October of 1981 he received a telephone call from Green who stated "he knew a couple of guys in the jewelry business" who were "liquidating" to raise money and were willing to sell some rings at a good price if he was interested. Tisch stated that on previous occasions he had conducted business with Green, selling coins or purchasing items of jewelry from him. Tisch replied that he was interested in the rings and Green made arrangements for Tisch to meet with the sellers on October 11, 1981, at Green's home. This agreement to sell was conditioned upon the premise that Green would receive a commission if a sale was consummated. At trial the government established that when Tisch arrived at Green's home, Green introduced him to two men, Jerry Waldo and Robert Tuohey. Tuohey, like Green and Waldo, was also employed as a United Airlines baggage handler.
At the October 11th meeting, Tisch agreed to purchase the 90-100 rings Tuohey and Waldo had on display for $150.00 each. Waldo and Tuohey insisted upon cash, necessitating that Tisch return the next day with the money. Tisch testified that during the negotiations with Waldo and Tuohey, Green was present in the room during "probably twenty-five percent" of the time. When Tisch returned with the money, he paid Green between $700 and $900, as a commission, prior to the arrival of Tuohey and Waldo. Green admonished Tisch not to tell the sellers about the commission payment. Thereafter, Tisch, Waldo and Tuohey completed the jewelry transaction.
Tisch testified that "a couple of weeks later" Green again called him and asked if he was interested in purchasing more jewelry since "the two guys were liquidating more, they had pendants and bracelets and necklaces, and lockets and other things that pertained to the jewelry business, and they were going to sell those." Green arranged for another meeting with Tisch at his home (Green's) on that date, Tuohey and Waldo displayed another 200-400 rings. Tisch testified he became suspicious at this time that the jewelry was probably stolen and therefore " pretended [only] to look" for about five minutes. He advised Waldo and Tuohey that he "would have to have an hour to think about [the transaction]." He suggested the sellers contact him at his store within the hour and departed. Shortly thereafter, Green called Tisch to ascertain whether he had decided to purchase the rings. Tisch stated that the price was too high and that he primarily went to Green's home to look at jewelry other than rings, and decided that he "just wasn't interested." Green said "that he would talk [to the sellers] to see if they could do something." Green called back a short time later stating that the sellers "reduced the price quite a bit." Tisch replied he was "just not interested." Once again Green called Tisch offering to reduce the price even lower, but Tisch repeated his earlier refusal to purchase. Sometime after this date, Tisch turned over to the FBI the rings initially purchased from Waldo and Tuohey. This jewelry was identified as part of the loot from the United Airlines O'Hare Baggage Facility theft.
Mary Lou Ronzone, a government witness who operated a jewelry business out of her suburban Chicago home, testified that in May of 1981, she was introduced to Waldo and Tuohey by Richard Neubeck who described Waldo and Tuohey as "two principals" who had a million dollars worth of jewelry for sale. Neubeck, charged in the United Airlines theft with Green, Waldo, and Tuohey, was also employed as a United Airlines baggage handler at O'Hare Field. Mrs. Ronzone stated that she purchased a substantial amount of jewelry from Tuohey and Waldo in her home during the months of May through December, 1981. She testified that through June and July 1981, the plaintiff-appellant Barbara Waldo and Marilyn Tuohey accompanied their husbands to her home "at least eighty to ninety percent of the time" when jewelry sales were consummated. According to Mrs. Ronzone, Barbara Waldo was present on several occasions when Jerry Waldo (her husband) and Robert Tuohey insisted that the jewelry not be sold in the Chicago or Indiana area. In addition, Mrs. Ronzone testified that on October 27, 1981, she provided Jerry Waldo with a check made out to "cash" as partial payment for jewelry previously purchased. That check, as received in evidence, was endorsed by both Barbara H. Waldo and Jerry Waldo.
Ronzone stated she made her final purchase of jewelry from the Waldos and Tuoheys on December 15, 1981. Sometime prior to that meeting, she (Ronzone) contacted the FBI concerning her suspicions that the jewelry purchased might have been stolen. The FBI suggested and received permission to place a recording device in her home. Using money furnished by the FBI, Mrs. Ronzone purchased $1,000 worth of jewelry on December 15, 1981. The trial admitted into evidence two hours of tapes of the negotiations leading up to the jewelry sale. These tapes reflect that Barbara Waldo was well acquainted and friendly with the co-conspirators at this time, and, in fact, was an active participant in handling the jewelry, counting the jewelry, and commenting as to its quality. For example, after Mrs. Ronzone commented on the amount of money she was paying for the jewelry, Barbara Waldo told her that "you'll get it back ten-fold." As was the case with the jewelry earlier purchased by Tisch, this jewelry was determined to be part of the contraband merchandise from the baggage theft.
At the conclusion of trial, the court found Green not guilty of possessing the stolen jewelry but guilty of conspiring to possess it and sentenced him to five years imprisonment and suspended all but ninety days of imprisonment, with the remaining sentence to be served under probation supervision. While Barbara Waldo was charged with four counts of possession of stolen jewelry, she was only found guilty of one count of possession (on December 15, 1981) along with conspiring to possess the stolen jewelry. The trial court, after rendering a verdict of guilty as to two of the crimes charged, imposed a sentence for each crime, suspended those sentences and placed her on four years probation for each crime, to be served concurrently.*fn1 On appeal, Green and Barbara Waldo challenge the sufficiency of the evidence in support of their respective convictions.
When a reviewing court examines the sufficiency of the evidence in support of a criminal conviction, the critical inquiry is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). In Jackson v. Virginia, the Court also recognized that it is the trier of fact's responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." ...