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United States v. Oreckinto

United States District Court, D. Connecticut

April 14, 2017

UNITED STATES OF AMERICA,
v.
ANDREW ORECKINTO, Defendant

          ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL

          Jeffrey Alker Meyer United States District Judge.

         A federal trial jury found defendant Andrew Oreckinto guilty of theft of goods from an interstate shipment, in violation of 18 U.S.C. § 659. Defendant has now moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29(c), asserting that the evidence presented by the Government was insufficient to prove that all or some of the goods stolen were part of an interstate shipment at the time of the theft. For the reasons set forth below, I will deny the motion.

         Background

         The relevant undisputed facts are as follows: defendant was charged with theft of more than 8, 000 cartons of cigarettes from the New Britain Candy Company (NBCC) warehouse in Wethersfield, Connecticut. As the evidence showed at trial, NBCC was at the time of the theft a business that ordered, warehoused, and then shipped goods, particularly cigarettes, to various Food Bag convenience stores throughout Connecticut and in Massachusetts, New York, and New Jersey. NBCC ordered cigarettes from out-of-state cigarette manufacturers that it used to fulfill future orders to Food Bag convenience stores; it projected how many cigarettes to order and stock ahead of time based on historical fulfillment figures from each Food Bag store.

         When the cigarettes arrived in cases at the NBCC warehouse, they were paid for, became the property of NBCC, and were posted to inventory. NBCC would then cut the cases of cigarettes in half, and store the half-cases in a shelving area by cigarette brand. The cigarettes stayed in that shelving area until a specific order came in from a Food Bag store, after which an NBCC “picker” would select the requested cigarettes from the various shelves to begin fulfillment of the order.

         Before cigarettes could be sold, each pack was legally required to receive a tax stamp from the state in which the cigarettes would be sold. Those tax stamps were purchased ahead of time by NBCC based on historical fulfillment figures from Food Bag stores in each state, and the stamps were stored in a safe in the warehouse. After NBCC received an order from a Food Bag store and the picker selected the requested cigarettes, the appropriate tax stamps would be applied to the cigarettes based on the store to which the cigarettes were destined. After the stamp was applied, the cigarettes were sent down a conveyer belt to a loading dock, where they were placed on an NBCC truck for shipment.

         The vast majority of cigarettes supplied by NBCC were sent to Food Bag stores within Connecticut, representing approximately 88% of all NBCC cigarette sales. And because sales to Connecticut represented such a high percentage of overall sales, NBCC ran trucks to Connecticut Food Bag stores every day of the week. The remaining 12% of cigarette sales were made to out-of-state Food Bag stores by the following truck schedule: to Massachusetts on Mondays and Wednesdays (approximately 4% of sales), and to New York on Thursdays and Fridays (approximately 6% of sales), with New Jersey (approximately 1% of sales) at the tail end of one of the New York runs. At trial, the Government presented evidence from Ted Hasty, the head of loss prevention for the parent company of both NBCC and Food Bag, who testified that NBCC's entire cigarette inventory turned over approximately every week and a half, or at least that was NBCC's goal for an inventory turnaround rate. See Doc. #86 at 7.

         The theft of NBCC occurred during the weekend of March 18, 2011, after the business had closed and would not reopen until Monday. By that Friday evening, the trucks for Monday's delivery-to Connecticut and Massachusetts Food Bag stores-had been packed with stamped cigarettes, and they were parked in the loading dock area ready to leave on Monday morning. None of the loaded trucks were stolen or disturbed during the theft; instead, the thief took approximately 8, 012 cartons of shelved, unstamped cigarettes. This theft constituted approximately 72% of NBCC's cigarette inventory at the time and was valued at approximately $329, 000.

         The Government introduced a chart produced by Hasty that showed a breakdown of cigarette sales by state for the 23 weeks leading up to the theft. See Govt. Exh. 500K. Hasty calculated that, of the $329, 000 worth of cigarettes stolen, approximately $40, 000 worth of stolen cigarettes would have been sent to out-of-state Food Bag stores in that coming week. See Id. at 7-8. The Government also introduced invoices for cigarettes shipped to out-of-state Food Bag stores in the week following the theft, which far exceeded $1, 000 in sales. See Govt. Exhs. 500M (Massachusetts); 500N (New Jersey); 500O (New York). Hasty testified that the amount of product that shipped out of state in the week following the theft was numerically close to his percentage calculations based on prior sales. See Doc. #86 at 78.

         The jury was instructed that it could not find defendant “Guilty” unless the Government had proved, beyond a reasonable doubt, all the elements of 18 U.S.C. § 659, including that:

at the time of the theft, all or some of the cartons of cigarettes that were stolen were part of an interstate shipment-that is, that they were then moving as, were a part of, or constituted an interstate shipment. Goods are part of an interstate shipment if they have been prepared or set aside for transportation from one state to another state even though the goods have not yet been moved across state boundaries. Similarly, goods are part of an interstate shipment if they have already been moved from one state to another, until they arrive at their final destination or are delivered. Thus, even if goods are at a temporary stop while awaiting transshipment, if the goods are not at their final destination in a different state, then the goods are part of an interstate shipment.

Doc. #78 at 9. The jury deliberated for about one day before rendering a verdict of “Guilty.”

         Discussion

         The standard governing the Court's review of defendant's motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 is well established. The Court must review the evidence in the light most favorable to the prosecution and sustain the jury's verdict if any rational trier of fact could have found the evidence sufficient to establish the elements of each crime beyond a reasonable doubt. See United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “The established safeguards of the Anglo-American legal system leave the veracity of a witness to be ...


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