United States v. Kierschke, 15091.

• Citation: 315 F.2d 315
• Decision Date: 05 April 1963
• Docket Number: No. 15091.,15091.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Robert KIERSCHKE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

315 F.2d 315 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Robert KIERSCHKE, Defendant-Appellant.

No. 15091.

United States Court of Appeals Sixth Circuit.

April 5, 1963.

Saul M. Leach, Detroit, Mich., Judson L. Levin, Detroit, Mich., on brief, for appellant.

William H. Merrill, Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Paul J. Komives, Asst. U. S. Atty., Detroit, Mich., on brief, for appellee.

Before WEICK and O'SULLIVAN, Circuit Judges, and DARR, District Judge.

DARR, District Judge.

In a two-count indictment the appellant was charged, with others, with violations at two different times of § 2314, Title 18 U.S.C.A.¹ This section has to do with the transportation of merchandise in interstate commerce of the value of $5,000 or more knowing the same to have been stolen. The appellant was convicted on both counts, from which judgment he appealed.

The one question raised in the appeal is whether an essential element of the conviction under said § 2314 is knowledge on the part of the accused that the stolen merchandise would be transported in interstate commerce.

The statute under which the appellant was convicted is part of what is known as the National Stolen Property Act, which Act is now carried in the Criminal Code at Chapter 113. The particular portion of the Act, at § 2314, pertaining to this case reads:

"Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; * * *."

For consideration in determining the question presented is § 2 of Title 18 U.S.C.A., which provides:

"(a) Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.

"(b) Whoever causes an act to be done, which if directly performed by him would be an offense against the United States, is also a principal and punishable as such."

The proof material to the issue to be resolved was stipulated, which was approved by the District Judge. It is as follows:

"AGREED STATEMENT OF FACTS OF EVIDENCE

"The record contained evidence from which the jury were entitled to find the following:

"1. That certain automobile tires were stolen on at least two occasions from the Goodyear Warehouse in Detroit as charged in the indictment;

"2. That the defendant KIERSCHKE was a participant in the initial theft of the tires from the warehouse, and in the initial transportation of the tires from the warehouse to certain dealers in the Detroit area, specifically Sam Solomon and Saul Brenner;

"3. That Sam Solomon and Saul Brenner immediately sold the tires to the World Tire Corporation of Toldeo (sic), Ohio;

"4. That the World Tire Corporation sent a truck to Detroit to pick up the tires and that its driver transmitted a check from the corporation to the dealers when the tires were picked up in payment thereof;

"5. That payments were made to one Wilfred King O\'Brien at the Goodyear Warehouse by the dealers from the proceeds of these sales to the World Tire Corporation;

"6. That the defendant received payments from Wilfred King O\'Brien for his part in the venture;

"7. That these payments for transactions occurring over a year and more amounted to some $350.00 by the defendant\'s testimony, or to as much as several thousand dollars by Wilfred King O\'Brien\'s testimony;

"8. That the value of the tires transported on each of the two occasions referred to in the indictment was at least $5,000.00."

This stipulation reveals that the appellant participated in the theft of the goods and participated in the initial movement from the place where the theft occurred. It also reveals that the stolen merchandise was not sold to the dealers in Detroit but was sold by them on behalf of all the malefactors to an out-of-state point and a check was received from the purchaser and thereafter appellant received his portion of the ill-gotten money.

The only case cited by counsel for the parties is the only one found by individual search that directly decides the issue in question. It is the case of United States v. Tannuzzo, 174 F.2d 177 (2nd Cir., 1949), certiorari denied 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493. Analyzing § 2314 on the very point to be here decided Judge Augustus N. Hand, speaking for the Court, said:

"* * * The statute under which he was indicted and convicted of the substantive offense does not require proof of knowledge on his part that the stolen goods were to be transported in interstate commerce. It only requires that he knew that the goods had been stolen and that he caused them to be thus transported. If, as the evidence indicates, Vespole stole the furs and turned them over to Tannuzzo and Dellaratta to sell for joint account, without limitation as to where the sale was to be made, the jury might properly find that Vespole caused their transportation when one of his confederates arranged for a sale to Felstein pursuant to which they were taken across a state line. * * *"

In the case at bar it is not denied that appellant stole the merchandise and that he turned the goods over to his partner in crime, his immediate superior, Mr. Wilfred King O'Brien, to sell for his and his confederates joint account.

So, we conclude, as did Judge Hand, that appellant not only caused the theft of the goods but caused their transportation in interstate commerce.

In Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954), Pereira and a Mr. Brading were convicted...