USA. v. Simmons

• Decision Date: 22 January 2001
• Docket Number: No. 00-4131,00-4131
• Citation: 247 F.3d 118
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE TONY SIMMONS, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 118

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

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE TONY SIMMONS, Defendant-Appellant.

No. 00-4131

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 22, 2001

Decided: April 16, 2001

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

(CR-99-298-A)

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.

OPINION

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.

I

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.

II

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. Simmons contends that"Congress intended the [statute] to cover only the receipt of property the theft of which was a felony" and therefore that, because there was no evi- dence that the theft of the cellular telephones was a felony, his con- victions must be reversed. He advances several arguments in support of this contention.

First, he states that in construing a statute, courts should accord words "their ordinary, contemporary common meaning." Upon con- sulting Black's Law Dictionary, he notes that "feloniously" can mean "[o]f, pertaining to, or having, the quality of [a] felony," or "acting with intent to commit a felony," or "done with a deliberate intention of committing a crime." Black's Law Dictionary 555 (5th ed. 1979).¹ To advance a meaning of "feloniously" that ascribes to it "having the quality of a felony" rather than "with a deliberate intention," Simmons argues that "feloniously" as used in S 662 modifies not only "taken," but also "stolen" and "embezzled." Because steal and embezzle already have criminal intent inherent within their definitions, he con- tends that "feloniously" must be given its other meaning -- that which has "the quality of [a] felony." He adds that a subsequent clause in S 662 -- "knowing the same to be so taken, stolen, or embezzled" (emphasis added) -- confirms his construction.

Second, Simmons argues that because Congress enacted two differ- ent statutes pertaining to the receipt of stolen property on June 25, 1948, see 18 U.S.C. S 662 and 18 U.S.C. S 2314, and used the term "feloniously" in one but not the other, the"difference demonstrates Congressional intent that the federal government should only get involved in prosecuting [under S 662] what is otherwise a state offense only if the underlying theft is serious enough to be character- ized as a felony." In short, because the statutes were enacted on the same date, he posits, the distinction made between the two statutes was both deliberate and revealing.

Finally, Simmons argues that in presenting this case to the grand jury, the government "took the position that`feloniously' referred to the value of the property stolen being sufficient to constitute a felony when it was stolen." Urging the application of the doctrine of judicial estoppel, see John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir. 1995), he maintains that "the government should not now be heard to argue to the contrary."

The government, on the other hand, contends that the historical record establishes overwhelmingly that the phrase"feloniously taken," as used in 18 U.S.C. S 662, was intended to incorporate the traditional usage of the common law as reflected in stolen goods stat- utes going back to at least the Seventeenth Century. This settled his- tory establishes conclusively, according to the government, that "feloniously taken" is a term of art that means "taken with intent to steal." The government admonishes that to construe the statute other- wise would lead to absurd results because "[w]hether a theft happens to constitute a felony according to state law can hinge on unforeseen details of where, when, and how the theft occurred, as well as how the state happens to classify its crimes." It observes that a statute that would provide for such uneven treatment would be"a curious statute indeed."

When interpreting a statute, our inquiry begins with the text.² Because, in the case of 18 U.S.C. S 662, Congress did not provide a definition for the term "feloniously," we determine its meaning by ref- erence to the term's ordinary meaning at the time of the statute's enactment. See MCI Telecomms. Corp. v. AT&T Co. , 512 U.S. 218, 228 (1994); Perrin v. United States, 444 U.S. 37, 42 (1979). And to do this, we must look back further than the 1948 enactment of S 662, which was, in material respects, merely a reenactment of an 1825 stat- ute, which in turn drew upon the common law. Therefore, we will begin with the common law and trace the pedigree ofS 662, coming forward.

At common law, "feloniously taken" was a well-established term of art meaning "taken with intent to steal." See 4 William Blackstone, Commentaries *232 ("This taking and carrying away must also be felonious, that is, done animo furandi (with the intention of stealing): or, as the civil law expresses it, lucri causa (for the sake of gain)"); Clark & Marshall, A Treatise on the Law of Crimes S 12.04, at 729- 30 (Melvin F. Wingersky ed., 6th ed. 1958) (stating that a taking is not felonious unless the taker fraudulently intends "to deprive the owner of his property, and to deprive him of it permanently").

The phrase made its first statutory appearance in 1692, when the English Parliament enacted a statute prohibiting the purchase or sale of "goods or chattels, that shall be feloniously taken or stolen from any other person, knowing the same to be stolen." 3 W. & M., c.9 (1692) (Eng.), cited in United States v. Moulton , 27 F. Cas. 11, 15 (D. Mass. 1830) (No. 15,827). The near synonymity of the terms "feloni- ously taken" and "stolen" at that time is evident in the statute's requirement that the defendant know only that the goods were stolen, even though they may actually have been stolen or feloniously taken.

In this country, various states parroted the language of the English statute when they enacted similar provisions in their own criminal codes. See, e.g., State v. Ryan , 48 So. 537, 538 (La. 1909) (construing a Louisiana statute prohibiting the receipt of goods"that shall...