514 F.2d 418 (7th Cir. 1975), 73-2114, United States v. Ray

Docket Nº:73-2114 and 73-2115.
Citation:514 F.2d 418
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Vincent RAY et al., Defendants-Appellants.
Case Date:March 31, 1975
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 418

514 F.2d 418 (7th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Vincent RAY et al., Defendants-Appellants.

Nos. 73-2114 and 73-2115.

United States Court of Appeals, Seventh Circuit

March 31, 1975

Argued April 23, 1974.

Page 419

Grady E. Holley, Michael J. Costello, Springfield, Ill., for defendants-appellants.

Donald B. Mackay, U. S. Atty., Victor M. Pilolla, Asst. U. S. Atty., Springfield, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge and SOLOMON, Senior District Judge. [*]

FAIRCHILD, Chief Judge.

Defendants John Ray, Ronald Jackson, and James Barbee were each found guilty on counts charging them with receiving, concealing, and retaining (or with concealing and retaining) property of the United States with intent to convert it to his own use, knowing it to have been stolen. So described the offense was a violation of the second paragraph of 18 U.S.C. § 641. 1 On appeal defendants claim that they were convicted of offenses not charged in the indictments and also urge that other prejudicial errors occurred in the course of their prosecution.

I

The gist of the government proof was that butter, while the property of Commodity Credit Corporation, an agency of the United States, 15 U.S.C. § 714, was stolen from certain freight cars, and that defendants later possessed such butter with knowledge of its having been stolen and sold it for gain. Defendants argue that because the butter was the property of the Commodity Credit Corporation

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any offense proved against them was an offense under 15 U.S.C. § 714m(c) and accordingly that § 714m(e) rendered 18 U.S.C. § 641 inapplicable to their conduct. Defendants argue that dismissal would be appropriate. At the least, because of different provisions as to penalty, with a different pecuniary value controlling the grading of penalty, an adjustment of sentences would be necessary. 2

15 U.S.C. § 714m(e) provides:

"All the general penal statutes relating to crimes and offenses against the United States shall apply with respect to the Corporation, its property, money, contracts and agreements, employees, and operations: Provided, That such general penal statutes shall not apply to the extent that they relate to crimes and offenses punishable under subsections (a), (b), (c), and (d) of this section: Provided further, That sections 431 and 432 of Title 18 shall not apply to contracts or agreements of a kind which the Corporation may enter into with farmers participating in a program of the Corporation."

The question thus becomes whether the defendants' conduct was punishable under one of the subsections of § 714m. Subsection (c) provides:

Whoever shall willfully steal, conceal, remove, dispose of, or convert to his own use or to that of another any property owned or held by, or mortgaged or pledged to, the Corporation, or any property mortgaged or pledged as security for any promissory note, or other evidence of indebtedness, which the Corporation has guaranteed or is obligated to purchase upon tender, shall, upon conviction thereof, if such property be of an amount or value in excess of $500, be punished by a fine of not more than $10,000 or by imprisonment for not more than five years, or both, and, if such property be of an amount or value of $500 or less, be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.

Focusing on this subsection's plain meaning, its language is sufficiently broad to encompass the acts which the jury must have concluded the defendants had performed. At common law conversion was defined as any act of dominion wrongfully exerted over another's personal property inconsistent with, in derogation of, or in defiance of the other's title or rights. 18 Am.Jur.2d Conversion § 1 at 158. The law, moreover, views the receipt of stolen goods as an act of conversion. 3 Absent a reasonable limiting construction, therefore, the knowing receipt and retention of Commodity Credit Corporation butter with intent to convert would be a willful conversion of the Corporation's...

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