Moore and Anderson, Circuit Judges, and Levet, District Judge.*fn*
Domenick Casalinuovo was indicted on one count for unlawfully possessing certain goods known to have been stolen from interstate commerce in violation of 18 U.S.C. § 659. The other count of the indictment charged Joseph James Percodani with having so stolen the goods. No motions for a severance having been made, they were tried together before Judge Murphy and a jury, and were each found guilty. Casalinuovo appeals (Percodani is appealing separately) claiming that the Government failed to establish his unlawful "possession" of the goods and that the trial court committed reversible error in allowing statements by Percodani to be read to the jury without deletion of references to Casalinuovo.
The evidence establishes at least the following. On August 26, 1964, six cartons and one hamper containing men's and women's slacks and shorts, of value in excess of $100, were being shipped by truck from Pennsylvania to New York City. The goods were not delivered to the consignee, who so informed the carrier responsible for the shipment. Percodani, its employee, was the driver. The theft was reported to the F.B.I. the next day, and on August 28th Percodani was arrested by F.B.I. agents Fuson and Roberts. He then executed a signed statement; a second statement was executed on August 31st. That day agent Fuson swore out a warrant for the search of the premises at 116 Mott Street, which he and agent Roberts executed the same day. At that address, they encountered appellant, two children, and one Sandra Stevens, who was a part owner of the building. (Appellant's daughter and another of his relatives owned the other interests in the building.) The agents identified themselves as such and advised both Stevens and appellant that they had a right not to say anything, that anything they said could be used against them in court, and that they could consult counsel before making any statements. Stevens then said that appellant was the janitor of the building, and she requested him to show the basement to the agents. He took the agents to a courtyard which provided access to the basement rooms. There was a steel door bearing a heavy padlock, and the agents asked appellant if he had a key; he indicated that he did not. After appellant's confusing answers about there being no way to get the door open, but that it was open, agent Roberts, thinking that appellant was stalling, said that if appellant did not open the door or tell them how to open it they would have to break it open. Appellant answered "that's up to you," and he "just stood there" when Roberts asked him to help unlock the door. After Roberts failed to open the lock by pulling on it "with all the force" he could exert, he opened the door with a long, crowbar-like, piece of metal that he had found. The door led to the boiler room and another interior room in which the agents found some radios and other goods, but none of the stolen goods in question.
In the courtyard again, the agents approached another steel door. A chain running through the door frame and a hole in the door was joined on the outside by a closed padlock. A similar conversation followed, with Roberts asking for a key and appellant saying the door was not locked, and again the agents warned that they might have to break the lock. Agent Roberts pulled the lock and the door frame started shaking. Finally, the piece of metal was again used to break the door open. This door led to the meter room and another adjoining interior room in which the agents found the stolen hamper, three of the stolen cartons -- all empty -- and sixteen pairs of the stolen slacks, of a value exceeding $100. Appellant was then arrested.
There was additional evidence tending to establish appellant's possession of the goods. As superintendent, as the building agent described him, appellant had various duties, including replacement of fuses in the meter room and taking care of conditions such as flooding in the basement. One of the residential tenants at 116 Mott Street testified that early in August she and an electrician had tried to go to the meter room to see if her meter were being used illegally by someone else. They found the door padlocked and the electrician was unable to open it. They were able to enter only after the tenant located appellant, who removed the lock and opened the door. As appellant's body blocked her vision, she could not see if he had used a key in opening the lock. Later, in October, she went down to put a lock on her meter but the basement door was locked from the inside. A man inside made reference to "Mickey" when she asked about getting in. She went upstairs to appellant, addressed him as Mickey, and told him she could not get in; he went down and got the man inside to open the door.
None of the owners stored anything in the basement of the building, and the other two Casalinuovos neither lived in the building nor even had keys to it. A business tenant of the building -- owner of a butcher shop -- said that he did not store goods in this area of the basement and had not been there for a year. The defense presented another business tenant who said that to replace burned out fuses he had been to the meter room about twenty or thirty times on about ten different days; some he thought were in July and August, but he could not be specific. However, he stored no goods in these rooms. Although he agreed that the door always had a lock and chain on it, he said he never found it locked and was always able to open it himself. It is not apparent how he did so.
Miss Stevens also testified for appellant that the lock was a "dummy lock" which could be opened by lifting but not by pulling. The Government suggested that her testimony might be biased, as she admitted that appellant was the father of her two children.
The crime in question is "possession" of goods known to have been stolen from interstate commerce, and it cannot be assumed that Congress was intending to impose criminal liability only upon those persons caught red-handed holding goods they have seen stolen from an interstate truck or train. 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. Cf. Holmes, The Common Law 216 (1881). In charging the jury on the issue of possession, the main one in the case as to appellant, the court said that the question for them was: "Did the defendant Casalinuovo have such possession and control of that room where some of the goods were found so that it can reasonably be said that he had possession of the merchandise?" Appellant had made no requests to charge and also made no objection to the charge given. We think the charge was adequate and the evidence sufficient under it to establish appellant's unlawful possession.
The unlimited variety of goods moving in interstate commerce, combined with almost as unlimited a variety of schemes and means for stealing and disposing of them, make the nature of unlawful possession a highly factual matter to be appraised case by case. Consequently an extended comparative discussion of the cases would not be too illuminating. Suffice it to say that the inferences which could be reasonably drawn from the evidence as to appellant's relationship to the goods place the case within the ambit of the cases in which the evidence of possession -- actual or constructive -- has been thought sufficient. See, e.g., Sterling v. United States, 333 F.2d 443 (9th Cir.), cert. denied, 379 U.S. 933, 85 S. Ct. 333, 13 L. Ed. 2d 344 (1964); United States v. Spatuzza, 331 F.2d 214 (7th Cir.), cert. denied, 379 U.S. 829, 85 S. Ct. 58, 13 L. Ed. 2d 38 (1964); United States v. Crisafi, 304 F.2d 803 (2d Cir. 1962); United States v. Thomas, 282 F.2d 191 (2d Cir. 1960); United States v. Page, 277 F.2d 3 (2d Cir.), cert. denied, 364 U.S. 843, 81 S. Ct. 83, 5 L. Ed. 2d 67 (1960); United States v. McNeil, 255 F.2d 387 (2d Cir.), cert. denied, 358 U.S. 836, 79 S. Ct. 59, 3 L. Ed. 2d 73 (1958); United States v. DeVivo, 246 F.2d 773 (2d Cir.), cert. denied, 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79 (1957); United States v. Williams, 194 F.2d 72 (7th Cir. 1952); United States v. Cordo, 186 F.2d 144 (2d Cir.), cert. denied sub nom. Minkoff v. United States, 340 U.S. 952, 71 S. Ct. 572, 95 L. Ed. 686 (1951); Le Fanti v. United States, 259 F. 460 (3d Cir. 1919); United States v. Strickland, 205 F. Supp. 299 (E.D.Mich.1962); cf. United States v. DeSisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S. Ct. 1885, 12 L. Ed. 2d 747 (1964); United States v. Curzio, 170 F.2d 354 (3d Cir. 1948); United States v. De Normand, 149 F.2d 622 (2d Cir.), cert. denied, 326 U.S. 756, 66 S. Ct. 89, 90 L. Ed. 454 (1945). See also Beyda v. United States, 324 F.2d 526 (9th Cir. 1963).
In the cases finding insufficient evidence of possession, the relationship between the defendant and the stolen goods has been far more tenuous than that which the jury could find here. See, e.g., Embree v. United States, 320 F.2d 666, 668 (9th Cir. 1963) (appellant merely knew someone who had whiskey for sale and was able to get price for potential customer); United States v. Minieri, 303 F.2d 550, 556-557 (2d Cir.), cert. denied, 371 U.S. 847, 83 S. Ct. 79, 9 L. Ed. 2d 81 (1962) (insufficient that appellant's fingerprint found on invoice which had been in carton before theft and which was found in room with stolen cartons); United States v. Lefkowitz, 284 F.2d 310, 315 (2d Cir. 1960) (insufficient that appellant's fingerprints found with 154 unidentified others on two of 352 large stolen cartons); Pearson v. United States, 192 F.2d 681, 692-693 (6th Cir. 1951) (appellants merely employed by co-defendant to work on his truck for wages but had no authority or control over stolen liquor in truck when acting under his orders); United States v. O'Brien, 174 F.2d 341, 344-345 (7th Cir. 1949) (appellant had merely been sitting with co-defendant in latter's truck before stolen butter was found in truck); United States v. Wainer, 170 F.2d 603, 606 (7th Cir. 1948) (appellant had only falsely claimed to be "boss" of liquor store where beer whose purchase he had arranged was being stored in usual storage place for beer); United States v. Russo, 123 F.2d 420, 422 (3d Cir. 1941) (appellant and co-defendant owned garage and truck within it, but appellant seldom entered and was unaware of stolen cigarettes hidden in truck); Caringella v. United States, 78 F.2d 563, 566 (7th Cir. 1935) (appellant merely owned open garage where thieves were found unloading truckload of stolen eggs); Niederluecke v. United States, 21 F.2d 511, 512-513 (8th Cir. 1927) (appellant had terminated lease on and was unable to enter garage where stolen car found); cf. Robinson v. United States, 333 F.2d 323, 326 (8th Cir. 1964) (insufficient evidence of value of dresses actually possessed by appellant, and dresses actually possessed by co-defendant could not be counted as being possessed by appellant); Sorenson v. United States, 168 F. 785, 798-800 (8th Cir. 1909) (burglary and larceny not established by proof that one of stolen watches was found three weeks later, when appellant was in jail, in bureau drawer in house occupied by wife).
The Cordo case deserves added mention, for there a defendant's constructive possession was found sufficiently established although admittedly it was not exclusive, and the space where the hot goods were stored was not owned by the defendant but was one to which he had non-exclusive access and knew would be unused for the few days needed to store the goods. Much the same may be said of appellant's relationship here to the cellar room. Also, whether the lock was actually locked or not, he obviously had a fluency in manipulating it that was not possessed by all of the building's tenants and which, quite significantly, was not made known to one tenant whom he knew did not know how to open this "unlocked" door. That another tenant may have known how to do so is less significant when that same tenant also says that he did not store anything in this part of the cellar; most likely, his excursions went no further than the meter room.
The remaining element of the crime -- knowledge that the goods were stolen from interstate commerce -- can usually be established by proof of the unexplained possession recently after the theft in circumstances making innocence unlikely. See United States v. Minieri, supra, 303 F.2d at 554; cf. Wilson v. United States, 162 U.S. 613, 619-620, 16 S. Ct. 895, 40 L. Ed. 1090 (1896). Even if the presumption of guilty knowledge is weakened when the possession is constructive as opposed to actual, see United States v. Russo, supra, any necessary added circumstances were present here in appellant's evasive conduct and statements at the time of the search. Cf. United States v. DeSisto, supra, 329 F.2d at 931, 935; United States v. Farina, 218 F.2d 62, 63 (2d Cir. 1954); United States v. Smolin, 182 F.2d 782, 785-786 (2d Cir. 1950). Whether or not "a lack of desire to cooperate" with searching police "is the privilege of every citizen," as appellant claims, the failure to do so by a building superintendent, when under orders from the owner to show the agents the cellar, at the risk of damage and further damage to the building, is another matter.
Appellant's second claim fares no better. There is no dispute about Percodani's statement to the F.B.I. being inadmissible for any purpose against appellant. Indeed, in its opening statement the Government told the jury that "Judge Murphy will instruct you, as to that particular confession, that that is admissible in evidence solely against Percodani, not against Casalinuovo." Even before that, at the side-bar, the Government had made known its intention to introduce the confession in evidence. When the confession was offered, the court observed that it was "only against the defendant Percodani," and the Government repeated that it was "only against Percodani; not as evidence against the defendant Casalinuovo." Percodani's attorney then requested a voir dire and on being refused at that time he objected to the admission of the confession in evidence. The objection was overruled. Appellant made no objection. The Government then asked the agent who had been testifying to read the contents of the statement to the jury. Appellant did not object, but the court said that the agent could not read it. The Government agreed and said it would "hold that." When the agent later testified about Percodani's oral statements it was more than once made clear that the testimony related "solely to the defendant Percodani," until the Government indicated that the rest of the testimony "will relate also or is offered also, against the defendant Casalinuovo." At the end of the Government's case, the court indicated that it thought that somebody was going to read the confessions to the jury, although the jury could examine them themselves, but that it had objected to the ...