299 F.

2d 811

UNITED STATES of America

v.
Eugene James ALLEGRUCCI, Appellant.
No. 13684.

United States Court of Appeals Third Circuit.

Argued January 8, 1962.
Decided February 21, 1962.
Rehearing Denied March 22, 1962.

Stanford Shmukler, Philadelphia, Pa., for appellant.

Daniel R. Minnick, Asst. U. S. Atty., Scranton, Pa. (Bernard J. Brown, U.
S. Atty., Scranton, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and GANEY, Circuit
Judges.
GOODRICH, Circuit Judge.

This is an appeal from a judgment of conviction under 18 U.S.C. 659 for

possession of goods stolen from interstate commerce, knowing them to be
stolen. The goods in question were a Bell & Howell motion picture projector
and two Rolleicord cameras.1 The case has been here before and was sent back
for a new trial because of what the Court found to be erroneous instructions to
the jury. United States v. Allegrucci, 3 Cir., 258 F.2d 70 (1958).

The appellant first argues that the evidence in the case is insufficient to sustain
the conviction. The statute is a technical one and requires the Government to
prove the allegation that the goods were stolen from one of various enumerated
places.2 Here, the indictment charged that the goods had been stolen from
Railway Express Agency platforms, to which they had been delivered by
employees of the express company. This Court, upon the prior consideration of
the case, said:

"There was ample evidence from which the jury could have found in this case

that the goods involved in the indictment * * * were stolen from the platforms
on which they had been placed in the course of movement in interstate
commerce * * *."
4

The goods were shipped from New York City to points in West Virginia, Texas
and Florida. They were not received by the consignees and the Government's
theory is that they were stolen from the platforms of the Express Agency in the
Long Island City Terminal and the Eleventh Avenue Terminal, respectively.
The defense claims that at the second trial there was evidence which showed
conclusively that the goods were not stolen from either platform of the Express
Agency but were regularly forwarded into the channels of interstate commerce.
If this testimony by two drivers of the Express Agency thus showed that
the goods were not stolen from the platforms and the jury accepted the
testimony, then the specific crime for which the defendant was indicted has not
been committed. Each driver concerned told of his delivery of the article in
question to the platform. Neither got a receipt upon the delivery of the package.
We do not see from the testimony that the "sorting room" which the drivers
talked about under skillful examination by defendant's counsel is any separate
and distinct room on either of the station platforms. The photographs
introduced so far as they show anything seem to show that the "sorting
area" is just a part of the general loading and unloading platform. Because the
argument is pressed with some vigor, we set out in Appendix I to this opinion
the full testimony concerning this point as it was given to us by the defendant.
Our conclusion from the testimony is that, taken most favorably to the
defendant, it is inconclusive and certainly nothing upon which a court should
take the question of theft from the platform away from the jury.

The appellant stresses vigorously and we have considered carefully the attack
upon the trial court's handling of memoranda under the so-called Jencks statute,
18 U.S.C. 3500. There are two of these memoranda. We shall consider first
the one having to do with the witness Zippittelli. She is a young woman who
was in and about the Allegrucci household because she assisted in the care of
the defendant's ill mother. After an F.B.I. agent talked with her he wrote down
what was described as a summary of his conversation. She did not see or adopt
the memorandum nor did it purport to be a full, substantially verbatim account
of what she said. We could stop discussion of this point forthwith because the
memorandum is not the type described by the statute in subsection (e) (2).3 The
trial judge, however, after examining the memorandum in camera, read it to
counsel for the defense. Miss Zippittelli's testimony in court was completely
consistent with the agent's report of the interview. A comparison of Miss
Zippittelli's statement and her testimony is set out in Appendix II. Furthermore,
it was highly favorable to the defendant because the young lady said that the

cameras exhibited as the stolen goods were not the cameras which she saw in
defendant's home. We see no error in the conduct of the trial judge in giving
counsel more than he was entitled to.
6

The second objection refers to a memorandum made by Government Agent

Roberts after an interview with the defendant himself. The point urged is that,
after Agent Roberts testified to the substance of an interview with the defendant
on July 15, 1955, the trial court should have ordered the production of a
memorandum which the agent made of the meeting. He bases this on
subsection (e) (1) of the Jencks Act, cited above.

The facts of this case on this point are almost indistinguishable from those of
United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961), with which we
agree. While Annunziato concerned the production of a statement requested
under subsection (e) (2), its holding is equally applicable here where the basis
of the request was subsection (e) (1) of the statute. In reaching its conclusion
that the failure to order production of the statement was harmless error, the
Second Circuit, through Judge Friendly, said:

"Careful scrutiny of the Interview Report convinces us that on no basis could it

have assisted the defense. Both the majority and the minority opinions in
Rosenberg v. United States, 1959, 360 U.S. 367, 371, 375, 79 S.Ct. 1231, 1236,
3 L.Ed.2d 1304, spurn the extreme view `that the harmless error doctrine can
never apply as to statements producible under the statute * * *.' Even taking as
our test the presumably more rigid standard laid down by the minority in
Rosenberg * * * that we must remand `unless the circumstances justify the
conclusion that a finding that such a denial [of a statement producible under
3500] was harmful error would be clearly erroneous,' we answer that here it
would be, fully recognizing, as we say this, the caution that `appellate courts
should be hesitant to take it upon themselves to decide that the defense could
not have effectually utilized a producible statement.' The Interview Report
checks fully with Haas' trial testimony. Had we been defense counsel, we
would have bitterly regretted receiving it, since its production would have
presented the dilemma, which trial lawyers strive desperately to avoid, that
examination on the report would only reinforce the witness' testimony whereas
failure to use it would do the same."

In this case, the contents of the report prepared by Agent Roberts as to his
interview with the defendant are nearly identical with Roberts' testimony on
direct examination as to the substance of the interview. A comparison of the
memorandum with Roberts' testimony is set forth in Appendix III. In these
circumstances we cannot see how the failure to order production of the report

was anything but harmless error.

10

The appellant next complains of that portion of the charge which had to do with
possession of stolen goods and the possible inferences to be drawn therefrom.
The court charged:

11

"Unexplained possession of recently stolen goods permits the jury to infer, if

they decide to infer or want to infer, that the possession is guilty possession * *
*.

******
12
13

"Possession of the fruits of crime, recently after its commission, may justify the
inference that the possession is guilty possession, and, though only prima facie
evidence of guilt, may be of controlling weight unless explained by the
circumstances or accounted for in some way consistent with innocence. * * *"

14

The defendant argues that the term "recently stolen goods" was not sufficiently
explained. There was no request, at the time of the charge, for further
explanation. The evidence shows that the cameras in question were in the
possession of the defendant about December 7 or 8, 1954, and the dates of
shipment were, respectively, September 22, 1954, and November 24, 1954. The
motion picture projector was shipped in interstate commerce December 8,
1954, and sold in March of 1955. We think that there is no substance to the
point that the interval between the shipment and the defendant's possession
took the case out of the classification of "recently stolen goods." Of course,
there is no set period which constitutes recency in this connection.4 Under any
standard, however, we think the intervals here were not too long.

15

The appellant also complains that the jury was prejudiced because in its
presence the trial court, in discussing with defendant's counsel the latter's
application for a copy of the memorandum prepared by Agent Roberts, asked
counsel whether "the doctrine of completeness" would apply if he were given
the memorandum. The court suggested that counsel think it over. And counsel
replied: "We have nothing to hide." All of this talk about the doctrine of
completeness may have confused the jury as it has the Court, but it certainly is
nothing that could have prejudiced the defendant in any way, especially since
his counsel really testified in his favor by saying that there was nothing to hide.

16

There was one point, however, to which the Government concedes that the
defendant's position is well taken. Before sentencing the defendant, the court

told his counsel to "go ahead." But the court did not specifically ask the
appellant if he had anything to say and, in fact, did not give him a chance to say
it had he wished to. Under Green v. United States, 365 U.S. 301, 81 S.Ct. 653,
5 L.Ed. 2d 670 (1961), the convicted defendant should have had this
opportunity.
17

Therefore, the judgment of the district court will be vacated and the case
remanded for re-sentencing, giving to the defendant the opportunity to make a
statement before sentence is imposed upon him.

APPENDIX I
18

William Beaton, under cross-examination, testified as follows:

19

"By Mr. Kossman:

20

"Q. Did you get a receipt for the merchandise you say you placed on the
platform?

21

"A. I got a receipt for the packages when I picked them up and turned them into
the Railway Express at nighttime.

22

"Q. Where did you get the receipt for the packages?

23

"A. From Burleigh Brooks.

24

"Q. I mean ____

25

"A. (Continuing) I don't get no receipt when I take the load to the terminal.

26

"Q. When you placed them as you say on the platform did you get a receipt
from anybody?

27

"A. No, sir, no receipt.

28

"Q. Do you know how long it remained on the platform?

29

"A. I wouldn't even know.

30

"Q. Did you see any one take it off the platform? "A. Yes. There were men
working there at the time.

31

"Q. You saw them take it off the platform?

32

"A. That is right.

33

"Q. Into the sorting room?

34

"A. That is right.

35

"Q. Did you ever see the defendant around the platform?

36

"A. No, I never did."

37

Edward Radigan, the other driver, testified:

38

"By Mr. Kossman:

39

"Q. Did you get a receipt for the merchandise you say you placed on the
platform?

40

"A. No, sir.

41

"Q. How long did it remain on the platform?

42

"A. Well, as soon as I put it on the platform it was sorted out sorted for its
destination.

43

"Q. Did they take it off the platform and put it in the sorting room?

44

"A. They sort it down the roller into these various trailers.

45

"Q. Is that in back of the platform or the platform?

46

"A. Yes, sir.

47

"Q. Is that the sorting room what they call the sorting room?

48

"A. Where I put it that is the sorting section. There is a sorter stands there and
he marks it.

49

"Q. You saw the sorter take it and sort it?

50

"A. Yes, sir.

51

"Q. This particular package?

52

"A. Yes, sir.

53

"Q. Did you see where they put that package after they sorted it there?

54

"A. No, sir.

55

"Q. But where they sort it is off the platform, is that correct?

56

"A. Well, where they sort it it is right on the platform.

57

"Q. Don't they have a sorting room?

58

"A. No. They have monevators. They go along on rollers.

59

"Q. This was put on the roller?

60

"A. Yes, sir.

61

"Q. Where did it roll to?

62

"A. Well, it is all according to where it was going, and it is marked so by

numbers.

63

"Q. This was going to West Virginia, is that correct?

64

"A. Yes, sir.

65

"Q. Where did it roll to?

66

"A. So far as I was concerned, it went down the platform.

67

"Q. Yes. But where does the roller end; where does it roll to?

68

"A. There is various trailers pulled into the platform that is marked for certain
railroads such as the Lackawanna, the Pennsylvania, and it is sorted down a
roller and shoved into these trailers and stacked and moved to various
terminals, wherever it was destined to go. I don't know just what point this
would go on.

69

"Q. But you saw it go on the rollers?

70

"A. That is correct.

71

"Q. You don't get a receipt when you deliver the merchandise, is that correct?

72

"A. No, sir. I just put the freight on the platform.

73

"Q. Are you familiar with the terminal at 11th Street?

74

"A. 11th Street?

75

"Q. 11th Avenue.

76

"A. Yes, I know 11th Avenue.

77

"Q. 11th Avenue.

78

"Q. Is this referring to `Defendant's Exhibit No. 3,' is that a picture of the
11th Avenue terminal?

79

"A. This is the picture of 11th Avenue.

80

"Q. Referring to `Defendant's Exhibits Nos. 1 and 2,' is this a picture of 11th
Avenue or Long Island?

81

"A. It looks like 11th Avenue to me.

82

"Q. How about `Defendant's Exhibit No. 1?'

83

"A. This I can't figure. It is an express terminal, but I don't know whether it is
11th Avenue.

84

"Q. Well, is it the Long Island Terminal if you know?

85

"A. No, this is not Long Island.

86

"Q. Now, are there any rollers on this platform?

87

"A. No, sir. There are boxes running into a trailer well, rollers.

88

"Q. Do they have a sorting room back of the platform?

89

"A. There is no sorting room. When they put the freight on the roller if the
sorter is standing there he marks it and it goes along on a monevator. It circles
the platform at 11th Avenue.

90

"Q. What is in back of the platform?

91

"A. A monevator. At 11th Avenue, there is a monevator runs in the center of

the platform. You see, they dump on one side and they load on the other side.

92

***

93

"Q. Now, is there a platform referring to `Defendant's Exhibit No. 3'

where the merchandise that you bring in the truck is dumped?

94

"A. Yes.

95

"Q. Is that correct?

96

"A. Yes. There is a platform on the other side of this.

97

"Q. There is another platform on the other side of this?

98

"A. No. It is the same platform. On the other side of this there is a platform.

One is for dumping and one is for loading.

99

"Q. On one there is a sorting room?

100 "A. No. It goes on a monevator.

101 "Q. It goes on a monevator. I understand.
102 "The Court: It goes into the trailers marked for different railroads?
103 "The Witness: Yes, sir.
104 "By Mr. Kossman:
105 "Q. Did you see the merchandise you delivered that we are referring to today
placed on the monevator, or roller, move towards the trailers?
106 "A. It moved in that direction. As soon as he put it on the roller it moved right
along.
107 "Q. Did you ever see the defendant there?
108 "A. No, sir.
109 "Mr. Kossman: That is all.
"RE-DIRECT EXAMINATION.
110
111 "By Mr. Hourigan:
112 "Q. As I understand your testimony then, Mr. Radigan, `Defendant's Exhibit
No. 3' shows the loading side, not where you bring the goods in, is that correct?
113 "A. Yes, that is the loading side.
114 "The Court: He says `Defendant's Exhibit No. 3' is only a part of the platform,
it didn't show the part where he left this particular package, it was the other
part; on the part where he left it there were rollers, it went on the rollers and
started for the trailers, he saw it go down the rollers. That is where we now

are."
APPENDIX II
Testimony

115

Interview Report

"Q. Miss Zippittelli, will you tell

us where you live, please?
"A. 435 Palm Street.
"Q. In Scranton?
"A. Yes.
"Q. And how old are you, Miss
Zippittelli?
"A. Eighteen.
"Q. Do you know the defendant,
Eugene James Allegrucci?
"A. Yes, sir.
"Q. And would you identify him
for the Court and jury?
"A. He is the one sitting in the
middle of the table.
Mr. Hourigan: May the record
show the witness has identified the
defendant, Eugene James Allegrucci.

APPENDIX II
116

Testimony

"Q. How long have you known him

approximately, Miss Zippittelli?
"A. Over eight years.
"Q. And do you know members of
his family?
"A. Yes, sir.
"Q. And did you have occasion to
go to the Allegrucci home when you
lived near them?

Interview Report

"A. Yes, sir.

"Q. Will you relate the circumstances
to the Court and jury under
which you went there?
"A. Well, his mother
doesn't get around too
come over and asked my
could go over and stay
he went out of town or
business trips.

was sick, she

well, and he
mother if I
with her while
went out on

"Q. And what period of time did

you do that at the Allegrucci household?
"A. Between 1954 and 1955.
"Q. Did you know the business
that Mr. Allegrucci was in?
"A. Well, yes. He was selling
paints and different articles like that.
"Q. Did you ever have occasion to
have a discussion with him about
cameras?
"A. Well, yes, sir, we did. It was
the night he was telling about taking
pictures, he had his own dark room
and he had a hobby, and he had his
own camera and he used to take pictures
and develop them himself.
"Q. Did you have a further conversation
with him relative to calls that
might be received at the house?
"A. Yes, sir. One night before he
went out, it was in December ____
"Q. What year?

"Rose Zippittelli, 638 P

age 15, advised on Novembe
that she has stayed in All
home with his mother on se
while Allegrucci was out o
the last time being about
ago. While at his home she
handle telephone messages
for parcels delivered by P
and Railway Express, Inc.
Allegrucci kept his mercha
garage and would not allow
strangers inside the garag
she had been inside the ga
most of his goods were in
contents not visible. She
`All' soap powder and lips
garage. She stated that Al
sells soap powders, costum
polishes, household applia
pen and pencil sets.

"Miss Zippittelli said t

man called `Spike' (LNU),
used to visit Allegrucci f
sometimes Allegrucci and `
would go out of town toget
said that either during th
spring of 1955, exact date
Allegrucci asked her to st
mother. When she entered t
room of Allegrucci's home
`Spike' was there with All
There were two cameras lyi
table in the living room a
asked her if she liked the
said that she did and inqu
were gifts. He just laughe
looks with Allegrucci. Sho
after this, Allegrucci and

"A. 1954. (Continuing) he says:

`If anyone calls about cameras to take
their name and address and about any
other articles to take their name and
address.'

APPENDIX II
117

Testimony

Interview Report

"Q. But he specifically stated in

December 1954: `If anybody calls
about cameras take their name and address'?
A. Yes, sir.

[see above]

left to go some place, and

Allegrucci told her if any
telephone about buying cam
should take their name and
However, no one did teleph
she was there.

"Miss Zippittelli stated

not notice the brand name
cameras and was unable to
describe them. She was exh
of instant Rolleicord came
29, 1955, and said that it
not the same type as she h
Allegrucci's home. She sai
was interested in photogra
and told her that he had a
his basement where he deve
own film.

"Miss Zippittelli said t

never known Allegrucci to
to Mrs. Dorothy Frances an
not know if Mrs. Frances e
a camera. She said that sh
know anybody who had obtai
camera from Allegrucci."

[There is evidently more

statement in which Miss
stated that she would co
try to locate "Spike."]

APPENDIX III
118

Testimony

Interview Report

"Q. Would you relate to the Court

and the jury, please, your conversation
with the defendant Allegrucci?
"A. I had an interview with Mr.
Allegrucci on July 15, 1955.
He told me at that time
that he was a salesman; that he sold
such things as paint and brushes,

[see below]

"On July 15, 1955, Eugen

Allegrucci, with aliases,
639 Pear Street, advised t
the Scranton Equipment Com
639 Pear Street, and deals
wholesaler in paints, brus
household appliances. He s
sold Benrus Wristwatches,
obtained from the Benrus F
New York. He keeps his mer
in a small garage behind h
advised that all he had on

moment was paint and brush

APPENDIX III
119

Testimony

Interview Report

costume
jewelry; that he got some merchandise
in Scranton from wholesale houses;
that he obtained some of his merchandise
in New York City from houses
on Canal Street; also some of the
merchandise he sold was distress merchandise;

said he also deals in cost

Allegrucci said he goes to
City and buys his jewelry
houses on Canal Street, an
buys distressed merchandis
New York. He gets his pain
and appliances from regula
supply firms in Scranton.
to discuss his business.

he said that he had neither

bought nor sold any cameras in over
a year; that he had nothing whatsoever
to do with cameras in over a year;

"Allegrucci advised that

never sold any cameras of
and that within the past y
neither bought nor sold an
whatsoever. He said that h
had anything whatsoever to
any cameras within the pas
longer. He advised that he
Gull, but denied that Gull
ever obtained any cameras
and denied any knowledge o
sold any cameras.

he said that he knew Alexander

Gull; he denied that he had
ever given any photographic equipment
to Mr. Gull; in particular he denied
having given any Rolleicord Cameras
to Mr. Gull to sell.
"Q. Now, as I understand your testimony,
Mr. Roberts, on July 15, 1955,
he stated that he had neither bought
nor sold any cameras for a year prior
to that date, is that correct?
"A. That is correct.
"Q. Anything further in that conversation
that you recall, Mr. Roberts?
"A. I asked him if he had any objections
to showing me his merchandise
that he had on hand. He said
that he kept it in a garage behind his
house. He said he did not wish to do
so because he didn't want the neighbors
to think he was in any difficulty.

"Allegrucci refused to v
exhibit his merchandise on
that he did not want his n
to get the idea he was in
trouble, and terminated th
by saying he was going to

"Q. Anything further, sir, that you

think of?
"A. No, sir."

"Following the interview

it was noted that he was v

at his home by two men in

bearing 1955 Pennsylvania
8827-V."

Notes:
1

At the time this case arose, the retail price of the Bell & Howell projector was
$734.00 and the wholesale price $489.33. The Rolleicord cameras each sold at
retail for $149.50, while their wholesale prices were $81.85 and $86.13,
respectively

In pertinent part, 18 U.S.C. 659 reads:

"Whoever * * * steals * * * from any railroad car, wagon, motor-truck, or other
vehicle, or from any station, station house, platform or depot or from any
steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft
terminal or air navigation facility with intent to convert to his own use any
goods or chattels moving as or which are a part of or which constitute an
interstate or foreign shipment of freight or express; or
"Whoever buys or receives or has in his possession any such goods or chattels,
knowing the same to have been * * * stolen; * * *
*****
"Shall in each case be fined not more than $5,000 or imprisoned not more than
ten years, or both * * *."

Subsection (e) (2) subjects to the provisions of the statute any statement which
is
"a stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement made by
said witness [called by the United States] to an agent of the Government and
recorded contemporaneously with the making of such oral statement."
F.B.I. "Interview Reports," similar to the one made by the agent of his
interview with Miss Zippittelli, have been the subject of much debate as to
whether and when they are producible statements either under subsection (e)
(1) or under subsection (e) (2). See, e. g., Campbell v. United States, 365 U.S.
85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), where the witness testified that he

"thought" the agent wrote down what he said and that he might have read over
his statement and told the agent it was accurate; United States v. McKeever,
271 F.2d 669 (2d Cir. 1959), where notes were made contemporaneously with
the interviews and where the substance of the interviewees' remarks was set
out, occasionally in quotation marks. In these circumstances, Palermo v. United
States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), directs the trial
judge to seek extrinsic evidence either by calling witnesses on his own
motion or by requiring the Government to produce them to ascertain
whether the statement in question falls within the purview of the statute. See
Campbell v. United States, supra, 365 U.S. at 96, 81 S.Ct. at 427. No such
situation, however, is presented here. There was no testimony by the witness
Zippittelli that she saw or in any other manner approved the statement; there is
no indication that notes were taken during the interview; the statement does not
purport to be more than a mere summary. In the absence of any preliminary
showing by the defense that the report might be producible under the statute,
we cannot see that even Campbell requires the trial judge to delve extrinsically
and on his own motion into the circumstances surrounding the interview.
4

The dogma as to what constitutes "recent" possession of illegally obtained

goods is that the term is not capable of exact or precise definition, that the
concept of what is "recent" varies with the circumstances of each particular
case, and that the question is one of fact solely for the jury. See, e. g.,
Chambliss v. United States, 218 F. 154, 158 (8th Cir. 1914). However, for what
it is worth, in People v. Malin, 372 Ill. 422, 24 N.E.2d 349 (1939), possession
six weeks after theft was held to be not so remote in time as to remove the case
from the consideration of the trial court sitting without a jury; State v. Jenkins,
213 S.W. 796, 799 (Mo.1919), said that the period could be as long as two
years. And see especially State v. Giordano, 121 N.J.L. 469, 3 A.2d 290
(Sup.Ct. 1939), holding valid a statute providing that possession within a year
from the date of theft shall be deemed sufficient evidence to authorize
conviction. Note also in this connection that the first time this case was here,
the Court found:
"There was ample evidence from which the jury could have found in this case *
* * (2) that the defendant was in possession of such goods [goods stolen from
interstate commerce], knowing them to have been stolen."