247 F.3d 118 (4th Cir. 2001), 00-4131, United States v. Simmons

Docket Nº:00-4131
Citation:247 F.3d 118
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE TONY SIMMONS, Defendant-Appellant.
Case Date:April 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 118

247 F.3d 118 (4th Cir. 2001)



JOE TONY SIMMONS, Defendant-Appellant.

No. 00-4131

United States Court of Appeals, Fourth Circuit

April 16, 2001

Argued: January 22, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge.


Page 119

COUNSEL: ARGUED: Michael William Lieberman, Alexandria, Virginia, for Appellant. Orin Samuel Kerr, Special Assistant United States Attor- ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Justin W. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and Malcolm J. HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkinson and Judge Howard joined.

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NIEMEYER, Circuit Judge:

Joe Tony Simmons challenges his convictions for concealing goods that were "feloniously taken, stolen, or embezzled" while on federal property, in violation of 18 U.S.C. S 662, arguing that the property involved -- two cellular telephones -- while proved to have been stolen, was not proved to have been the subject of a felony theft. The district court rejected the construction urged by Simmons and inter- preted "feloniously taken," as used in S 662, to mean "tak[en] with intent to steal." Because the evidence showed that the cellular tele- phones had been stolen, the court convicted him. We affirm.


While driving a red Honda Civic del Sol in Langley, Virginia, in August 1999, Simmons took a wrong turn. Hoping to remedy the situ- ation, he quickly pulled into the nearest parking lot, which happened to be that of the Central Intelligence Agency headquarters. CIA Police Officer Terry Weatherford approached Simmons, briefly detaining him, and ran a routine check of his driver's license and license plate tags. The officer discovered that the suspension of Simmons' license was pending and that the Honda had been reported as stolen. Officer Weatherford thereupon placed Simmons under arrest, and a subse- quent search of the Honda uncovered, among other things, two cellu- lar telephones, which had been placed inside a knapsack left on the passenger seat. An investigation revealed that both cellular telephones also had been reported as stolen several months earlier from automo- biles in parking garages in Arlington, Virginia, and Washington, D.C.

Simmons was indicted for one count of grand larceny for the theft of the Honda and three counts of receiving and concealing stolen property, i.e., the Honda, a Nokia brand cellular telephone, and an Ericsson brand cellular telephone. The indictment alleged that each telephone had been "feloniously taken and stolen" and had a value under $1,000.

Following a bench trial, the district court convicted Simmons on the two counts relating to the concealment of the cellular telephones, in violation of 18 U.S.C. S 662. Although Simmons conceded that the telephones were stolen, he contended that the government was required to prove that the underlying theft of the telephones was a fel- ony. Because the government offered no such proof, Simmons asserted that the evidence was insufficient to convict him. The district court acknowledged that the government had offered no evidence that the thefts of the cellular telephones were felonies, but rejected Sim- mons' argument that the government had the burden of proving that fact to obtain a conviction under S 662. The

the proper construction of the word "felonious" . . . is as a descriptor of the word "taking," and so there are three activi- ties that are covered by 662: felonious takings, stealing, and embezzlement, and if the property was obtained in[any] of those three manners, . . . then that element of the offense is satisfied.

The district court sentenced Simmons to 24 months imprisonment, and this appeal followed.


The single issue presented in this case is whether Congress, in criminalizing the receipt or concealment of money or goods "feloni- ously taken, stolen, or embezzled," 18 U.S.C.S 662, intended to require proof that the original taking, theft, or embezzlement of money or goods was a felony.

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Simmons contends that"Congress intended the [statute] to cover only the receipt of property the theft of...

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