United States v. Astolas

• Decision Date: 08 November 1973
• Docket Number: 73-1730,No. 232-234,73-1731.,Dockets 73-1679,232-234
• Citation: 487 F.2d 275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Jerome ASTOLAS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

487 F.2d 275 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James Jerome ASTOLAS et al., Defendants-Appellants.

Nos. 232-234, Dockets 73-1679, 73-1730, 73-1731.

United States Court of Appeals, Second Circuit.

Argued October 4, 1973.

Decided November 8, 1973.

COPYRIGHT MATERIAL OMITTED

Richard J. Arcara, Asst. U. S. Atty., W. D. N. Y., Buffalo, N. Y. (John T. Elfvin, U. S. Atty., W. D. N. Y., Buffalo, N. Y., on the brief), for plaintiff-appellee.

William B. Mahoney, Buffalo, N. Y., for defendants-appellants, James Jerome Astolas and William Dallas Bermel.

John P. McKenna, Buffalo, N. Y., for defendant-appellant, Daniel James Edin.

Before MEDINA, FEINBERG and TIMBERS, Circuit Judges.

MEDINA, Circuit Judge:

This is an appeal from a judgment entered in the United States District Court for the Western District of New York, Chief Judge John O. Henderson presiding, after a jury trial convicting each of the appellants of three counts of an indictment alleging that appellants stole certain trailers containing automotive supplies constituting interstate shipments, 18 U.S.C., Sections 659 and 2, and of one count alleging conspiracy, 18 U.S.C., Section 371. Appellant Astolas was sentenced to serve concurrent eight-year terms of imprisonment on each of the substantive counts and a five-year concurrent term on the conspiracy count. Bermel and Edin were given a concurrent five-year term of imprisonment on each of the four counts. Each appellant was fined $20,000.

We find it necessary to discuss only the legal questions arising out of appellants' contentions that as to two of the trailers interstate shipment had not commenced at the time appellants made off with the trailers and their contents, and that as to the other trailer interstate shipment had terminated.

I

The facts adduced at the trial by the Government to show the interstate character of the shipments were not controverted. Middle Atlantic Warehouse Distributors, Inc., the victim of the theft, is an automobile supplies wholesaler that owns a warehouse in Tonawanda, New York. In the course of its business, it purchases parts from manufacturers, generally located in the Midwest, warehouses them, and resells them to 70 customers, 65 of which are spread throughout 15 Northeastern states. Middle Atlantic employs its own drivers, and uses its own tractor-trailers to carry the parts from manufacturers to Tonawanda, and from Tonawanda to its customers.

On July 20, 1972, Middle Atlantic Trailer 7105 was loaded with supplies from the Middle Atlantic warehouse. A bill of lading was prepared by the warehouse manager describing the contents of the shipment, its weight, together with routing directions to stops in Massachusetts, Connecticut, and Rhode Island. The doors of the trailer were closed and sealed with serially numbered metalstrips inserted between the door and frame of the vehicle.

On Friday, July 21, 1972, Middle Atlantic similarly loaded trailer 7106 with supplies, sealed its doors, and prepared shipping documents.

The following day, Saturday, July 22, a day on which Middle Atlantic was not open for business, the manager returned to the warehouse, attached tractor trucks to trailers 7105 and 7106, and moved them from the loading dock to a Middle Atlantic parking lot adjacent to the warehouse. He then put the respective bills of lading on the consoles next to the drivers' seats of the tractors, checked the seals, and locked the tractors. Trailer 7105 was scheduled to depart on Sunday, July 23, and Trailer 7106 was scheduled to depart before the opening of business on Monday, July 24. The manager testified that nothing else had to be done to ready the vehicles for transit; they were merely awaiting their assigned drivers.

Trailer 7107 was driven on Friday, July 21, 1972, from the A & P Parts Company in Toledo, Ohio, to Middle Atlantic's warehouse in Tonawanda, arriving at 8:15 in the evening, after regular business hours. The driver, a Middle Atlantic employee, backed his vehicle up to door 6 of the warehouse and left it there, tractor truck and trailer still connected. He deposited the bill of lading in a mail box, which had been placed for that purpose on a side door leading to the warehouse.

Trailers 7105, 7106 and 7107 and their attached tractors were stolen on Saturday night, July 22.

At the appellants' trial, Chief Judge Henderson gave the following instructions to the jury on the subject of whether the automobile supplies constituted interstate shipments:

The interstate character of the property stolen is an essential element of this offense. The interstate character of a shipment commences at the time that the property is segregated for interstate commerce and comes into possession of those who are assisting its course in interstate transportation, and continues until the property arrives at its destination and is there delivered, either by actual unloading or by being placed to be unloaded.

Thus, for example, as to Counts One and Two of the indictment those relating to trailers 7105 and 7106, if you find beyond a reasonable doubt that Middle Atlantic Warehouse Distributors, Incorporated, had caused the goods in question to be placed in trailers at their loading dock; that the trailers had then been sealed; that tractors were then affixed to the trailers; that the tractor trailers were then moved to a point away from the loading dock and placed in the parking lot of Middle Atlantic Warehouse Distributors, Inc., and that bills of lading had been prepared and placed within the cabs of the tractors; then you may also find that the property in question constituted a shipment in interstate commerce.

In addition, if you find beyond a reasonable doubt that the tractor trailer involved in Count Three of the indictment relating to trailer 7107, arrived at the yard of Middle Atlantic Distributors, Inc., from another state; you will recall this involved a shipment from Toledo, Ohio, into New York State, that upon arrival in that yard the tractor trailer was placed in the loading dock in a sealed condition; and that the bill of lading was placed in the mail slot of the terminal, then, you may also find that the property in question remained in interstate commerce at the time of the alleged theft.

Appellants noted an exception to these instructions.

Appellants claim that trailers 7105 and 7106 had not yet become interstate shipments at the time they were stolen, and that trailer 7107 had ceased to be an interstate shipment by the time it was stolen. They claim that the trial court erred in its instructions to the jury by giving overbroad content to "interstate shipment," by giving disjunctive rather than conjunctive effect to the three phrases of the statute preceding the words "interstate shipment," and by restating the instructions in the terms of the testimony of Government witnesses. They make other claims for reversal on the subject of other exceptions to the charge and to various refusals to charge as requested.

We find no merit in any of these contentions.

II Section 659

The indictments charged that appellants violated Section 659 of Title 18 of the U.S.Code:

Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any pipeline system, railroad car, wagon, motortruck, or other vehicle, or from any tank or storage facility, 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, express or other property; * * *.

The phrase most important to this appeal, "moving as or which are a part of or which constitute an interstate or foreign shipment," was the phrase chosen by Congress in 1913 when it first enacted the predecessor of Section 659. The legislative history of the 1913 bill sheds no light on the meaning of the phrase. The bill was reported to the Senate by the Judiciary Committee with the recommendation that it be passed, but without other comment. S.Rep. 1132, 62d Cong., 3d Sess. The floor debates reflect only an attempt to amend the bill to transmute it into a venue provision, defining a federal crime only if venue did not lie in any state because of the interstate character of the theft. The proposed amendment was rejected out of hand.¹

Although the legislative history of the statute sheds no light on its purpose, this Court has repeatedly held, given the all-inclusive sweep of its terminology, that Section 659 is designed by the Congress to promote the flow of goods in interstate commerce, United States v. Berger, 338 F.2d 485 (2d Cir. 1964), cert. denied, 380 U.S. 923, 85 S. Ct. 925, 13 L.Ed.2d 809 (1965); United States v. Thomas, 396 F.2d 310 (2d Cir. 1968), and that the carrying out of this purpose is not to be hampered by technical legal conceptions. 338 F.2d, supra, at 487.

The scope of the phrase "moving as or which are a part of or which constitute an interstate or foreign shipment" is plainly to be inferred from the list of places from which theft is proscribed. These places include not only railroad cars and tractor-trailers and other modes of transportation, but any "station, station house, platform or depot * * *." It was intended that a theft from commerce could be committed before the goods were placed on board, and after they are taken off of a carrier; it is not required that a shipment be in motion.

The statute suggests three ways in which the commerce requirement can be met: the goods can be (1) moving as an interstate shipment, (2) part of an interstate shipment, or (3) constituting an interstate shipment. The use of the conjunction "or" between the clauses suggests that the criteria are disjunctive rather than conjunctive. See United States v. Gollin, 176 F.2d 889, 893 (3d Cir....