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United States v. Decorte

decided: July 12, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JACK DECORTE, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 856-Paul E. Plunkett, Judge.

Posner, Coffey, and Easterbrook, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

After a bench trial, a federal district judge convicted appellant, Jack DeCorte, Jr., of criminal conspiracy, 18 U.S.C. § 371 (1982 and Supp. IV 1986); possession of property stolen from an interstate shipment, 18 U.S.C. § 659; and transporting stolen property in interstate commerce, 18 U.S.C. § 2314. DeCorte appeals, arguing that the government failed to prove him guilty beyond reasonable doubt and that his convictions for possession and transportation of stolen property resulted in dual punishment for a single crime. We find no merit in either of DeCorte's contentions and we affirm his convictions.*fn1

FACTS

On January 23, 1984, FBI agents went to R & M Truck and Trailer Repair ("R & M"), in Bensenville, Illinois. In R & M's garage, the agents discovered two semi-trailer loads of television sets that had been stolen a week earlier from a Zenith Electronics Corporation ("Zenith") storage lot in Milton, Pennsylvania. On December 1, 1986, following an FBI investigation, a federal grand jury indicted Dennis Armenta and DeCorte, charging both with the three offenses for which DeCorte now stands convicted. Armenta, who was present at the R & M garage when FBI agents discovered the stolen trailers, pleaded guilty. DeCorte, who had driven one of the trailers from Milton to Bensenville, proceeded to trial. At trial, DeCorte maintained that he was merely an innocent dupe and had no idea that the trailers were stolen.

Jerry Blankenship, DeCorte's partner in a freight brokerage business called Blade Shippers, testified for the government. Blankenship testified that DeCorte approached him at the Blade Shippers office on Friday, January 13, 1984, and tried to enlist him to help bring two trailer loads of television sets to Illinois from Pennsylvania. DeCorte told Blankenship that they would be paid $3,000 per trailer for the approximately seven hundred mile trip, about four times the ordinary rate for a trip of that length. Moreover, they would not be pulling any freight from Illinois to Pennsylvania, but would be "bobtailing," or driving tractors without trailers, on the outbound leg of the trip. Blankenship testified that bobtailing such a distance is very rare; he had done it only once before in twenty-eight years in the trucking business. When Blankenship asked DeCorte about the unusually high price they were to be paid, DeCorte told him that "they were hot loads." (In the trucking business, "hot" may mean stolen, but also may refer to goods which must be moved very quickly.) Blankenship refused to participate and warned DeCorte not to use company tractors in the venture. Blankenship testified that he had no knowledge that DeCorte had gone through with the plan until Saturday, January 14, 1984, when he discovered that two tractors were missing from the Blade Shippers parking area.

Blankenship testified that he next saw DeCorte on Tuesday, January 17, 1984, when DeCorte returned with the tractors. Blankenship asked DeCorte where he had been. DeCorte told Blankenship that he (DeCorte) had just gotten back from Pennsylvania, and that he had not yet been paid for the trip, but needed "to make a couple of phone calls to collect his money." Later that day, Blankenship was present when DeCorte made a telephone call from the Blade Shippers office. DeCorte argued with the other party on the telephone, asking why he could not have his money then, and when he could have it. After DeCorte hung up, he tucked a gun into his belt and said he was "going to get his money." Blankenship testified that DeCorte told him, "I better not open my mouth about the trip because it had gotten screwed up and if anybody found out from me I'd get my head blowed off."

At trial, the government also called James Snodgrass, who drove the second trailer from Milton to Bensenville. Snodgrass testified that DeCorte asked him to drive the second tractor-trailer unit after Blankenship refused to do so. DeCorte offered Snodgrass $200.00 to make the weekend trip, a sum equal to Snodgrass's weekly salary. Snodgrass agreed and he met DeCorte en route to Pennsylvania at a designated fuel stop on the Indiana Tollway. The two then bobtailed together to Milton. Snodgrass testified that he had never bobtailed this distance in nine years as a truck driver. Snodgrass also testified that the tractors he and DeCorte drove bore "Cougar Express" insignia. (Blankenship later testified that use of those tractors was improper, because Cougar Express, a New Jersey trucking firm, had not authorized the trip.) Moreover, DeCorte and Snodgrass lacked the permits required to enter Pennsylvania.

Snodgrass and DeCorte arrived in Milton at about 2:30 p.m. on Monday, January 16. They pulled their tractors into the Milton Truck Stop, where they refueled the trucks and ate lunch. DeCorte then made a telephone call from the truck stop. After the phone call, DeCorte told Snodgrass that the trailers had not arrived yet, but would arrive later that evening. At about 7:00 p.m., DeCorte made another telephone call, and this time he reported to Snodgrass that the trailers were ready. They then drove to a nearby lot in which approximately twenty Zenith trailers were parked. No one else was in the area. DeCorte told Snodgrass the numbers of the trailers they were to pick up, they found them, and they hooked the trailers onto their tractors. They then pulled out of the lot and set out toward Chicago.

Snodgrass testified that he and DeCorte took Interstate 80 on their return trip to Chicago, and because DeCorte said they were to be back in Bensenville by 8:00 a.m. the next day, they averaged nearly seventy miles per hour on the return trip. At approximately 7:45 a.m. on Tuesday, January 17, the shipment reached the Skyway Plaza outside Chicago. The drivers stopped there and DeCorte made more telephone calls. After the telephone calls, DeCorte and Snodgrass drove the tractor-trailer units to Bensenville, to what appeared to be an auto-body repair shop. A man met them there and opened the garage door. Snodgrass and DeCorte backed the two trailers into the garage (although there was barely enough room for them), unhooked the trailers, and returned the tractors to the Blade Shippers lot. Snodgrass saw no bills of lading or other paperwork and he and DeCorte kept no log books during the entire trip.

About a week after the trip, Snodgrass saw a television news report concerning the stolen trailers. The next time Snodgrass saw DeCorte, approximately a week after the news report, Snodgrass confronted DeCorte and asked him whether the trailers reported stolen were the ones they had brought to Bensenville from Milton. DeCorte replied, "Yeah, they're hot." He also told Snodgrass that they would not be paid for the trip because the original buyers had been scared off. Finally, DeCorte told Snodgrass that the entire matter should be kept "hush-hush."

Dorothy Steinman, a carriers' agent and property broker, also testified for the government. Steinman testified that she first met DeCorte in November or December 1983 when she contacted Blade Shippers to do some local hauling. On approximately Monday, January 23, 1984, DeCorte came to her office to be paid for work he had done for Steinman's firm. While he was in Steinman's office, DeCorte asked if she could do him a favor. DeCorte said that he "had some problems in Pennsylvania, around Milton," and asked Steinman to say that DeCorte was moving freight for one of the companies she represented, should anyone ask about him. She refused to comply with DeCorte's request.

DeCorte based his defense on his own testimony and on his impeachment of Blankenship's credibility. DeCorte testified that the venture began when he received a call from someone named Joe Russo, who asked DeCorte to pick up the trailers in Pennsylvania and drive them back to the Chicago area. Russo offered DeCorte $1,400.00 per trailer for the trip. DeCorte claimed that Russo said nothing to indicate that the shipment would be stolen. DeCorte admitted that he asked Blankenship to join him, but denied that he told Blankenship that the loads were "hot" or that they were to be paid $3,000.00 per trailer. DeCorte testified that Russo provided him with bills of lading for the loads and Zenith identification cards for the drivers. DeCorte contended that he kept all the paperwork himself during the trip, then returned it to Armenta at R&M. He kept no copies for himself. DeCorte denied that he had a telephone conversation regarding payment for the loads after he returned. Instead, he testified that he went to R&M on Wednesday, January 18, to see about payment. While there, he saw that the Zenith logos were being scraped off the trailers. DeCorte claimed that this was the first time he suspected that the trailers might be stolen. On cross-examination, however, prosecutors impeached DeCorte by eliciting his admission that he had lied to FBI agents during their investigation, telling the agents that he did not recall hauling any trailers from Milton to Bensenville.

DeCorte also impeached Blankenship, both by attempting to show that Blankenship was biased and also by the introduction of testimony impugning Blankenship's reputation for truthfulness. First, DeCorte exposed Blankenship's possible bias by showing that he and Blankenship did not get along, and that Blankenship himself recently had been investigated by the FBI for hauling stolen property. (Blankenship denied, however, that he had received any promises of leniency in exchange for his testimony.) DeCorte also testified that he considered Blankenship an untruthful person and that Blankenship ...


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