Booth v. United States, 10623.

• Decision Date: 23 May 1946
• Docket Number: No. 10623.,10623.
• Citation: 154 F.2d 73
• Parties: BOOTH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

154 F.2d 73 (1946)

BOOTH v. UNITED STATES.

No. 10623.

Circuit Court of Appeals, Ninth Circuit.

March 11, 1946.

Rehearing Denied May 23, 1946.

Morris Lavine, of Los Angeles, Cal., for appellant.

Charles H. Carr, U. S. Atty., and James M. Carter and Ray H. Kinnison, Asst. U. S. Attys., and William Strong, Spc. Atty., all of Los Angeles, Cal., for appellee.

Before DENMAN, STEPHENS, and ORR, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment convicting appellant as a co-conspirator in a conspiracy to violate Section 7 of the National Stolen Property Act, Act of May 22, 1934, 48 Stat. 795, as amended by the Act of August 3, 1939, 53 Stat. 1178, 18 U.S.C.A. 413 et seq., The indictment charged appellant and certain other persons with conspiracy to receive, conceal and store in Southern California stock certificates of a value in excess of $5,000, knowing them to have been stolen from the offices of the Superior Portland Cement Inc., Seattle Washington, which certificates were moving in or became a part of interstate commerce when so received, concealed and stored in violation of Section 4 of that Act.¹

The evidence is uncontradicted that on March 26, 1943, there were stolen stock certificates of value in excess of $5,000 from a desk in the office, in Seattle, Washington, of Z. P. Lucas, president of the Superior Portland Cement Inc. Examination of the securities by the thief or thieves showed that they were registered in Mr. Lucas' name and not in negotiable form. It was then apparent that the thief or thieves had two methods of profiting by their larceny: one by holding the certificates for a reward for their return to Mr. Lucas; the other and more difficult method of forging endorsements and securing a purchaser in a stock market which would be notified of the theft and which purchaser would afford evidence of connection with the thieves when the securities of companies issuing the certificates notified of the theft would refuse to accept them for transfer.

With this obvious likely alternative of their return to Seattle for a collection of a reward, the certificates were transported to California where they came into the possession of the persons charged as conspirators. There is evidence that appellant, in Los Angeles, California, sought to obtain a reward from Mr. Lucas, in Seattle, for the return of his stolen property, knowing it to have been stolen. The question here is whether there properly has been proved the participancy of appellant and his alleged co-conspirators in a conspiracy to hold the securities, knowing that they were in interstate commerce.

The indictment charged certain named persons as conspirators together with "others whose names are to the grand jury unknown." There was no evidence concerning the named conspirators, other than appellant, that they knew the securities had been or were in interstate commerce and hence that they joined with Booth in the conspiracy, unless such knowledge is to be presumed or inferred from their possession 61 days after the theft.

The Supreme Court has recently held that the presumption that a person possessing stolen property has stolen it² will not support the further presumption that the goods were in interstate commerce between the theft and the possession or during possession. In Bollenbach v. United States, 66 S.Ct. 402, 404, rendered subsequent to the trial below, the Supreme Court reversed because of error in the following instruction: "Of course if it occurred afterwards it would not make him guilty, but in that connection I say to you that if the possession was shortly after the bonds were stolen, after the theft, it is sufficient to justify the conclusion by you jurors of knowledge by the possessor that the property was stolen. And, just a moment — I further charge you that possession of stolen property in another State than that in which it was stolen shortly after the theft raises a presumption that the possessor was the thief and transported stolen property in interstate commerce, but that such presumption is subject to explanation and must be considered with all the testimony in the case."

There was other strong evidence for conviction but, in reversing, the Supreme Court states "In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed...