676 F.

2d 919

UNITED STATES of America, Appellee,

v.
John MUZII, Defendant-Appellant.
No. 848, Docket 81-1443.

United States Court of Appeals,

Second Circuit.
Argued April 12, 1982.
Decided April 19, 1982.

Irving Anolik, New York City, for defendant-appellant.

John B. Latella, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward
R. Korman, U. S. Atty., E. D. N. Y., Vivian Shevitz, Asst. U. S. Atty., E.
D. N. Y., Brooklyn, N. Y., of counsel), for appellee.
Before KAUFMAN and VAN GRAAFEILAND, Circuit Judges. *
IRVING R. KAUFMAN, Circuit Judge:

The reach of the criminal law has long been limited by the principle that no one
is punishable for his thoughts.1 Accordingly, not only has a criminal state of
mind, or mens rea, been a general condition of penal liability,2 but the
imposition of the criminal sanction has required a guilty act, or actus reus, by
the person sought to be held liable. This act must be contemporaneous with the
guilty mind. The actus reus requirement has been justified on the grounds that it
is difficult to distinguish between mere day-dreams and resolute intention in the
absence of some physical act or behavior, and that an attempt to punish evil
thoughts alone would cast the net of the criminal law too widely.3 The actus
reus must have its origin in some willed activity or omission on the part of the
defendant. Moreover, the guilty act cannot exist in the absence of the
surrounding circumstances and consequences associated with the offense
forbidden by law.4 In this case, we are asked to determine whether the
circumstances concerning the Government's method of detecting the crimes
charged in the indictment operated to preclude the commission of a guilty act.
Specifically, we must decide if the activities of detectives engaged in an

undercover operation resulted in the recovery of stolen pharmaceuticals by the

owner or his agent prior to delivery of the stolen drugs to appellant, thereby
causing the goods to lose their stolen character and rendering appellant
incapable of committing the guilty act of receiving stolen property. We turn
now to the facts of this case.
2

John Muzii appeals from a judgment of conviction entered in the United States
District Court for the Eastern District of New York after a jury trial before
Judge Charles P. Sifton. Muzii was convicted of two counts of receiving and
possessing goods moving in interstate commerce with a value of more than
$100.00, knowing the goods to have been stolen, in violation of 18 U.S.C.
659, and one count of conspiracy to receive and possess such goods, in
violation of 18 U.S.C. 371. Judge Sifton sentenced Muzii to concurrent terms
of imprisonment of two years on each of the three counts, fines of $5,000 on
each of the substantive counts and a fine of $10,000 on the conspiracy
conviction, for a total fine of $20,000. On appeal, Muzii raises several claims,
the only serious one of which is that at the time the stolen pharmaceuticals
came into his possession, they had lost their character as stolen property as a
result of the participation of undercover agents working on the case. For the
reasons stated below, we reject Muzii's contentions, and affirm the judgment of
conviction.

This case is the result of a carefully orchestrated undercover operation. In 1976,

the New York City Police Department initiated an investigation designed to
apprehend those responsible for the theft of cargo from airline carriers at John
F. Kennedy International Airport in New York. To establish a base for
infiltrating the ranks of truck drivers and warehousemen involved in the thefts,
the Department operated a trucking company, known as Inner City Trucking,
Inc., and staffed by both the detectives from the New York City Police
Department and by agents of the United States Customs Service. Working
undercover, the detectives and agents were able to obtain information
concerning cargo thefts at the Airport. The law enforcement officers utilized
the facade of a legitimate business to facilitate their operation.

Two New York City detectives, Richard Marrone and Samuel Velez, held
themselves out as the owners of the trucking company. Through their
undercover work, they met Ralph Simonetti, a truck driver for the Imperial Air
Freight Company. Between 1977 and 1979, Simonetti spoke to Velez on the
topic of cargo thefts on numerous occasions, and brought several shipments of
stolen goods to Velez and Marrone at the trucking company. In the spring of
1979, Simonetti asked Velez and Marrone if he could use the trucking
company's warehouse as a "drop" for a shipment of stolen ulcer pills before

delivering them to the ultimate purchaser. Velez expressed his assent. On June
14, 1979, Simonetti introduced Domenick Vullo, a truck driver for Profit By
Air, Inc., to detectives Marrone and Velez, and arrangements were made for the
delivery of the stolen pharmaceuticals. Vullo delivered the drugs on June 20.5
On the next morning, Ralph Simonetti arrived at Inner City Trucking, Inc., to
inspect the stolen drugs. Simonetti placed a call to John Muzii, a druggist in the
Bronx, from the business office of the trucking company for the purpose of
making arrangements for delivery of the drugs. Later that morning, Simonetti
and Gerald Weiss loaded the boxes of stolen drugs into Simonetti's car, and
stated that they would deliver the goods to the druggist. Later, Simonetti called
Detective Marrone at the trucking company to inform him that the transaction
had been completed, and, on June 25, met with Marrone to pay him $1000 as
his share of the proceeds earned from the sale to Muzii.
5

On July 18, 1979, Domenick Vullo brought another shipment of stolen

pharmaceuticals to Inner City Trucking.6 On the next morning, Simonetti and
Weiss picked up the drugs from the trucking company, and drove to a Howard
Johnson's restaurant in the Bronx, where they met John Muzii. Muzii left the
restaurant a few minutes later, after engaging in a brief conversation with the
pair. Alfred Lewis, an employee of the Muzii Drug Company, soon arrived at
the restaurant in a car owned by John Muzii. After speaking briefly with
Simonetti and Weiss, Lewis drove away in Simonetti's car, which contained the
stolen drugs. Lewis then proceeded to an apartment building one block from
the premise of the Muzii Drug Company, and unloaded the drugs from the car.
Lewis returned to the Howard Johnson's Restaurant, spoke briefly with
Simonetti and Weiss, and drove away in Muzii's car. On July 20, John Muzii
and Ralph Simonetti met in a parking lot in Bayside, New York. A few days
later, Simonetti delivered $1000 to Marrone and Velez as their share of the
proceeds from the sale of the drugs to Muzii.

In October, 1979, Marrone and Velez revealed their true identities to Simonetti,
and offered him an opportunity to cooperate. Simonetti agreed. Wearing a tape
recording device, Simonetti met with Muzii at the Howard Johnson's
Restaurant where the previous transaction had taken place. Their recorded
conversation revealed certain details of the July 18th shipment and mentioned
the possibility of another sale of stolen drugs.

A five count indictment was subsequently filed. John Muzii was charged in
three counts. Domenick Vullo, Gerald Weiss, and Ralph Simonetti was named
as co-defendants. Muzii was indicted on two counts of receiving and possessing
stolen pharmaceuticals worth more than $100 and moving in interstate
commerce, knowing them to have been stolen, on June 21 and July 18, 1979, in

violation of 18 U.S.C. 659. Muzii was also charged with one count of
conspiring with his co-defendants to commit such an offense, in violation of 18
U.S.C. 371. While Vullo, Weiss, and Simonetti each pleaded guilty,7 Muzii
stood trial before Judge Charles P. Sifton in the Eastern District of New York.
Trial commenced in August, 1981. The Government presented the testimony of
Detectives Marrone and Velez, as well as Special Agents Victoria Ovis and
Donald Grattan of the United States Customs Service, who had observed the
transactions at the Howard Johnson's Restaurant and in the parking lot in
Bayside, New York. The Government also introduced videotapes8 of meetings
involving Marrone, Velez, Simonetti, and Weiss, and tape recordings of two
conversations between Simonetti and Muzii. While Muzii did not testify in his
own behalf, he presented the testimony of several character witnesses, who
asserted that Muzii had an excellent reputation in his business community for
honesty and truthfulness. Muzii also called to the stand a New York City police
detective, who testified that he overheard a conversation between Muzii and
Simonetti at a party in February, 1979, in support of Muzii's contention that he
believed he was purchasing damaged or unclaimed drugs rather than stolen
pharmaceuticals. The jury convicted Muzii on all three counts.
8

On appeal, Muzii's principal claim is that his conviction for knowingly

receiving and possessing stolen pharmaceuticals in violation of 18 U.S.C. 659
is invalid because the drugs had lost their status as stolen property before they
were delivered to him.9 Muzii argues that, because the stolen shipments had
come into the physical possession of the undercover detectives overnight on
June 20 and July 18, before Muzii received possession of them, the drugs had
been "recovered" for their rightful owner and were no longer stolen. See United
States v. Monasterski, 567 F.2d 677 (6th Cir. 1977). Accordingly, Muzii
asserts, although he may have formed the requisite mens rea, or intent to
receive stolen goods, he could not have performed the actus reus of receiving
and possessing stolen goods due to the involvement of the undercover agents.

Our analysis of the relevant case law leads us to the conclusion that the brief
custody of the goods by the detectives at the trucking company did not amount
to "recovery" of the drugs for their rightful owner and eliminate the stolen
character of goods. Rather, the use of the company's facilities as a "drop" for
stolen pharmaceuticals merely facilitated surveillance of the unlawful
transaction and enabled the detectives to apprehend the ultimate purchaser. The
detectives did not convert their limited role of observation into "recovery" of
the stolen goods, since at no time did they exercise control over the drugs on
behalf of the rightful owner, act as the owner's agent to recover the goods, or
direct their delivery to Muzii. The brief physical custody of the pharmaceuticals
was no more than a small segment of the overall undercover scheme designed

to ferret out criminal activities planned and executed by others.

10

Judicial precedent firmly supports the line we draw today between surveillance
and recovery of stolen goods by undercover agents seeking to apprehend those
involved in the sale and purchase of such property. The proposition that one
cannot be convicted of receiving stolen goods if, before the stolen goods
reached the receiver, the goods had been recovered by their owner or his agent,
including the police, is traceable to two nineteenth century English cases. See
Regina v. Schmidt, L.R. 1 Cr.Cas.Res. 15 (1866); Regina v. Dolan, 29 Eng.Law
& Eq. 533 (1855). Later courts properly stressed that the essential condition for
invoking this rule is actual or constructive possession of the stolen goods by the
owner or his agent; mere surveillance or observation of the goods does not
constitute actual or constructive possession. See United States v. Monasterski,
supra, 567 F.2d at 680, 684. In Monasterski, Conrail police apprehended three
youths who had stolen tires from a Conrail boxcar in a railroad yard. In an
effort to capture the intended "fence," the Conrail police assisted in the transfer
of the stolen tires to the defendant, and in fact supplied a van for their transport.
The Sixth Circuit concluded that the stolen tires were recovered by their
rightful owner and were delivered at the direction of the owner and law
enforcement officials. Accordingly, the apprehended youths were no longer
acting as participants in a criminal enterprise, but were agents for the police and
Conrail, the rightful owner of the tires. Since the youths were acting under the
authority of the owner who had recovered the goods, the Court held that the
goods had lost their stolen character and the defendant, therefore, could not be
convicted of knowingly receiving and possessing stolen goods, in violation of
18 U.S.C. 659. Id. at 684. See also United States v. Cawley, 255 F.2d 338 (3d
Cir. 1958) (mail had lost stolen character because, prior to delivery to
defendant, postal inspectors with duty to recover mail solicited thieves to
continue with their original design after their apprehension); United States v.
Cohen, 274 F. 596 (3d Cir. 1921) (goods recovered by rightful owner prior to
delivery to defendant).

11

When law enforcement officers have merely engaged in the surveillance of

stolen goods before their delivery to a "fence," courts have uniformly concluded
that the property did not lose its stolen character, and the receiver of such
property has committed the actus reus of receiving and possessing stolen goods.
The Fourth Circuit, in United States v. Dove, 629 F.2d 325 (4th Cir. 1980),
recognized the distinction between the actual recovery of stolen goods by or on
behalf of the owner and the mere observation of stolen goods for the purpose of
apprehending the individual who ultimately receives them. In Dove, the Court
concluded that where the possession of stolen bulldozers by the undercover
agent was not for recovery by the owner but was an integral part of the overall

criminal design, the agent's conduct in the theft and subsequent sale was
considered an act of observing the criminal activities. Id. at 329. See also
United States v. Egger, 470 F.2d 1179 (9th Cir. 1972) (counting the stolen
money and recording of serial numbers in presence of Government agents did
not eliminate stolen character of money since actions of Government agents
were a form of surveillance and observation rather than possession on behalf of
the rightful owner), cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 410
(1973); Copertino v. United States, 256 F. 519 (3d Cir. 1919) (surveillance of
stolen copper bars from a distance did not constitute actual or constructive
possession of the bars by the owner or his agent); Barnes v. United States, 313
A.2d 106 (D.C.App.1973).
12

With these principles in mind, we conclude that the conduct of the detectives
working undercover at Inner City Trucking constituted nothing more than
observation or surveillance of the stolen pharmaceuticals, and accordingly did
not eliminate the stolen character of the goods. Detectives Marrone and Velez
were not instrumental in causing, nor did they attempt to cause, the delivery of
the two shipments of drugs to Muzii. Furthermore, they were not operating
under the authority or direction of the rightful owner in an attempt to entrap the
receiver of the stolen goods. The undercover agents simply provided a
convenient "drop" for Simonetti and his confederates to use before delivering
the drugs to Muzii. They did not solicit Simonetti's cooperation in transferring
the drugs to appellant, and Simonetti was not working under their direction
when Muzii received the drugs. The detectives did no more than provide a
place to store the stolen drugs for a single night where they could be observed
while Simonetti independently made arrangements for delivery to Muzii.
Accordingly, we reject Muzii's contention that the activities of the detectives
precluded his commission of the actus reus of receiving and possessing stolen
goods in violation of 18 U.S.C. 659. Any other result would unreasonably
impair the ability of law enforcement officials to apprehend "fences" for stolen
property.

13

Since Muzii's other claims are completely without merit, 10 we affirm the
judgment of conviction in all respects.

With the consent of the parties, pursuant to Rule 0.14 of the Rules of the
Second Circuit, this appeal was heard by a panel of two judges. Judge William
H. Timbers was scheduled to participate, but was indisposed

S. Kadish & M. Paulsen, Criminal Law and its Processes 207 (1969)

Despite the long-standing commitment of traditional Anglo-American criminal

jurisprudence to the requirement of mens rea, there have been departures from
it in a number of situations. The felony-murder and misdemeanor-manslaughter
doctrines, and statutes defining as criminal offenses bigamy and sexual acts
with minors provide examples of crimes for which a mens rea requirement has
been eliminated. See S. Kadis & M. Paulsen, supra, note 1 at 247. The
acceptance of strict criminal liability for violations of regulatory statutes
represents another departure from the mens rea principle. See Campbell, A
Strict Accountability Approach to Criminal Responsibility, 29 Fed.Prob. 333
(1965)

G. Williams, Criminal Law 2 (2d ed. 1961)

Id. at 16

At trial, the parties stipulated that these drugs had been stolen from Profit By
Air, Inc., a cargo carrier at JFK International Airport which employed Vullo,
that the drugs had been part of a shipment in interstate commerce, and that the
value of the stolen pharmaceuticals exceeded $50,000

The parties stipulated at trial that these pharmaceuticals had been stolen from
Profit By Air, Inc., that the drugs had been part of a shipment in interstate
commerce, and that the value of the drugs exceeded $60,000

Vullo pleaded guilty to the conspiracy count of the indictment and was
sentenced to eighteen months in prison. Weiss also pleaded guilty to the
conspiracy count, and was sentenced, pursuant to 18 U.S.C. 3651, to serve six
months of a two year prison term, with the balance of the sentence suspended,
and two years' probation to follow. Simonetti pleaded guilty to one count of
receiving and possessing stolen property in violation of 18 U.S.C. 659, and
was sentenced to a six year term of imprisonment

Recently, in United States v. Alexandro, 675 F.2d 34 (2d Cir. 1982), this Court
considered and rejected a challenge to the conviction of an investigator with the
Immigration and Naturalization Service for bribe receiving, conspiracy to
receive bribes, and unlawful conflict of interest arising from an FBI Abscan
investigation. In Alexandro, this Court held that the participation of
Government agents, who made videotapes of meetings with the defendant, was
not so excessively intertwined with the illegal scheme that due process
prohibited the criminal prosecution of defendant. Since Muzii has not asserted
that the activities of Marrone and Velez were so extensive and repugnant that
his criminal prosecution violated due process and has not in fact challenged the
admissibility of the videotapes, we need not apply these principles in this case

We note that even if the goods lost their stolen character prior to delivery to
Muzii, which we decline to hold, Muzii could be convicted of conspiracy to
receive and possess stolen property in violation of 18 U.S.C. 371, since the
evidence was ample to support the existence of a conspiracy. See United States
v. Egger, 470 F.2d 1179, 1181 (9th Cir. 1972), cert. denied, 411 U.S. 949, 93
S.Ct. 1931, 36 L.Ed.2d 410 (1973)

10

On appeal, Muzii has raised three additional claims: that the tape recordings of
conversations between Simonetti and Muzii should have been ruled
inadmissible because the recordings were made without court order and
violated Muzii's expectation of privacy; that his conviction should be reversed
and the indictment dismissed on the ground that his due process rights were
violated by pre-indictment delay; and that the jury's verdict was not supported
by the evidence. Since these claims are completely lacking in merit, we shall
not discuss the reasons for rejecting them