U.S. v. Shackelford

• Decision Date: 29 November 1985
• Docket Number: 84-5998,Nos. 84-5995,s. 84-5995
• Citation: 777 F.2d 1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Marshall SHACKELFORD (84-5995), Douglas McArthur Brooks (84-5998), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1141

777 F.2d 1141

UNITED STATES of America, Plaintiff-Appellee, v. James Marshall SHACKELFORD (84-5995), Douglas McArthur Brooks (84-5998), Defendants-Appellants.

Nos. 84-5995, 84-5998.

United States Court of Appeals Sixth Circuit.

Argued Aug. 27, 1985.

Decided Nov. 29, 1985.

William G. Crabtree, Barbara Carnes (argued), London, Ky., for defendants-appellants in No. 84-5995.

Louis DeFalaise, U.S. Atty., R. Michael Murphy, Fred A. Stine, V (argued), Lexington, Ky., for plaintiff-appellee.

Allen W. Holbrook (argued) Court appointed, Owensboro, Ky., for defendants-appellants in No. 84-5998.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

James M. Shackelford and Douglas Brooks, defendants, appeal from jury convictions, Brooks for embezzling food goods shipped in interstate commerce, (18 U.S.C. Sec. 659); and Shackelford for buying and receiving the embezzled food goods (18 U.S.C. Sec. 659). On appeal defendants raise three assignments of error: (1) erroneous jury instructions; (2) failure to voir dire jurors about alleged outside influence; and (3) imposition of restitution as part of their sentence upon conviction.

I.

The facts in this case are, for the most part, undisputed. In December 1983, defendant Brooks, a truck driver, ran into a fellow truck driver, Thomas Hatfield. Brooks offered to help Hatfield get a load of goods to haul, and arranged for Hatfield to pick up a load the next day in Fremont, Ohio. Brooks loaned Hatfield money for fuel and the two men picked up a load of 1602 cases of food products from the H.J. Heinz Company. As was customary in the trucking industry, the dispatcher for the Heinz shipment gave Hatfield a $450 advance on his final fee of $720. ¹

After experiencing repeated mechanical problems with the truck, Brooks and Hatfield were forced to stop in Middlesboro, Kentucky to attempt repairs. There, in purchasing various essential items, the drivers obtained credit from Yeary, a Middlesboro convenience store owner. Unable to obtain funds from the trucking company, the drivers decided to sell some of the Heinz products on the truck for money to complete the haul. Brooks told Hatfield that he knew where they could sell some goods, and Hatfield agreed to the sale.

The drivers contacted defendant Shackelford, a local store owner with whom Brooks had previously dealt. Shackelford purchased approximately 80 cases after haggling with Brooks over the price per case. Shackelford bought the goods at $5 per case, approximately half the wholesale value. When Shackelford questioned Brooks about the legality of the goods, Brooks claimed that the goods had not been stolen, but were an overload. ²

Ten other cases of the food goods were given to Yeary by Hatfield to cover their expenses. Hatfield gave a few cases to friends as gifts and retained a few for personal use. Brooks remained in Kentucky, and Hatfield completed the haul to Jacksonville, Florida. When he arrived, Hatfield signed the necessary papers, acknowledging the absence of 127 cases. At the time of trial, 71 of these cases remained in defendant Shackelford's stockroom. According to testimony, these cases of goods could not be resold, and the shipper was forced to donate those cases to charity.

Upon conviction of defendants on their respective charges, the district court sentenced Brooks to two years with actual service of 120 days and five years probation. Shackelford was sentenced to three years with actual service of 120 days and a five year probation period. He was also fined $5,000. Both defendants were also ordered to make restitution of $470.80 to Arrow Truck Lines, the shipper, as a condition of probation (to be paid within the six months after release from custody). Finally, both defendants were ordered to perform community service one day a month within the first two years of probation. Defendants appeal these convictions. ³

II.

Defendant Brooks contends that the district judge erred by failing to instruct the jury that he could not be convicted of embezzlement if Brooks lacked the specific intent to deprive the owner permanently of the goods or value of the goods. Brooks argues that since he and Hatfield knew that Hatfield would be required to pay for the shortage, neither intended permanently to deprive the owner of the goods. Relying on United States v. Kemble, 197 F.2d 316 (3d Cir.1952), Brooks contends that he lacked the requisite intent to embezzle since he intended to return the property or its value to the owner.

Defendant's reliance on Kemble is misplaced. Kemble involved a larceny charge in which an instruction on specific intent was deemed a necessary element of the crime charged. Defendant Brooks, on the other hand, was charged with embezzlement that does not include intent permanently to deprive the owner of the goods as an element. See United States v. Waronek, 582 F.2d 1158 (7th Cir.1978). Furthermore, although the Third Circuit in Kemble apparently limited applicability of 18 U.S.C. Sec. 659 to offenses amounting to common law larceny, subsequent appellate courts have rejected Kemble 's narrow statutory construction. See, e.g., United States v. Coin, 753 F.2d 1510, 1511 (9th Cir.1985); United States v. Faulkner, 638 F.2d 129, 130 (9th Cir.1981); United States v. Waronek, 582 F.2d 1158, 1161 (7th Cir.1978). We decline to follow Kemble.

In construing the federal statutory theft offense, recognition of congressional intent in enacting the provision must be given considerable weight. As the Second Circuit well stated:

Although the legislative history of the statute sheds no light on its purpose, this Court had repeatedly held, given the all-inclusive sweep of its terminology, that Section 659 is designed by Congress to promote the flow of goods in interstate commerce ..., and that the carrying out of this purpose is not to be hampered by technical legal conceptions.

United States v. Astolas, 487 F.2d 275, 279 (2d Cir.1973), cert. denied sub nom. Edin v. United States, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974) (citations omitted). By using broad language, Congress intended to protect the free movement of goods in interstate commerce without reliance on narrow, common law definitions of theft offenses.

As the government aptly noted in this case, the defendant's practice of reimbursing the owner for unexplained shortages "was not intended to allow truckers to purchase their cargo at cost, assume the role of distributor by selling the cargo, use it to satisfy personal debts, or to use the cargo for Christmas presents to friends and relatives." Appellee's brief at 5. Indeed, as Faulkner and Waronek indicate, 18 U.S.C. Sec. 659 was designed to protect the channels of interstate commerce, including activities such as those engaged in by defendant Brooks.

United States v. Waronek, supra, presents a factual situation similar to the facts before this court. In that case, defendant was hauling beef when he made a detour to drop off some money at home and make minor repairs to his truck. 582 F.2d at 1159. Defendant butchered some of the meat for himself and his friends and sold some of it to cover his financial needs. Defendant had planned to cover the loss out of future settlements. Id. The Waronek court held:

The intent to permanently deprive the owner of his property is not an element of the crime of embezzlement. Rather, cases indicate that the felonious intent with which embezzlement is committed consists of the intent to appropriate or convert the property of the owner; the simultaneous intent to return the property or to make restitution does not make the offense any less embezzlement.

Id. at 1161 n. 4 (emphasis added). Accord Coin, 753 F.2d at 1511.

We conclude that the district court did not err in its jury instructions on the question of intent.

III.

Defendants' second assignment of error is that the district court failed to determine properly the issue of alleged juror misconduct. The alleged misconduct centers around the timing of a juror's meeting with his wife and the return of the guilty verdict. After the jury had been deliberating for approximately four hours, the court received notice that one of the jurors needed to speak with the court. The juror had planned to attend a beauty pageant in which his young daughter was a contestant:

[W]e were aiming to leave from here and go on to Louisville. And it appears that we may be here for a while and I was wondering maybe if I could send her on to Louisville and maybe you could arrange some way of me getting down there or getting back home or something.

After conferring with counsel, the court agreed to provide transportation home for the juror and also permitted him to tell his wife of the change of plans. No attorney for any party expressed dissatisfaction with the court's decision.

The juror spoke with his wife for a few minutes before returning to the jury room. Soon thereafter, the jury reached its verdict of guilty. Defense counsel raised no objections to the timing after the verdict was read, the jurors polled on the convictions, and the jury dismissed. Subsequently, defense counsel raised the issue of possible jury misconduct. Defense counsel moved for new trial, requested an opportunity to interview the jurors, and sought an evidentiary hearing to determine if misconduct existed from the sequence of events leading to the guilty verdict. The district court permitted the defense to interview the jurors, but denied the motion for new trial and for the evidentiary hearing.

The sixth amendment right to trial by jury is designed to ensure criminal defendants a fair trial by a "panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). When possible juror misconduct is brought to the trial judge's attention he has a duty to investigate and to determine whether there may have been a violation of...