Clark v. United States, 14555

• Decision Date: 14 May 1954
• Docket Number: No. 14555,14566.,14555
• Citation: 213 F.2d 63
• Parties: CLARK et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 63 (1954)

CLARK et al. v. UNITED STATES.

Nos. 14555, 14566.

United States Court of Appeals Fifth Circuit.

May 14, 1954.

Thomas V. Kierman, St. Petersburg, Fla., for Clark.

Dillon Hartridge, Damon G. Yerkes, Jacksonville, Fla., for Samples.

Herbert S. Phillips, U. S. Atty., J. Hardin Peterson, Asst. U. S. Atty., Lakeland, Fla., E. David Rosen, Asst. U. S. Atty., James L. Guilmartin, U. S. Atty. for Southern Dist. of Florida, Miami, Fla., for appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

The appellants, defendants, were found guilty by a jury under an indictment based upon the general conspiracy statute, 18 U.S.C.A. § 371, which charged that the defendants and others conspired to steal 550 cases of whiskey, part of an interstate shipment, in violation of 18 U.S.C.A. § 659, or to receive, possess and dispose of said whiskey, knowing same to have been stolen in violation of said 18 U.S.C.A. § 659.

The principal contention of each appellant on appeal is that the district court erred in denying his motion for a directed verdict of acquittal because there was no sufficient proof that he conspired to steal, or to receive, conceal or dispose of whiskey from an interstate shipment. Further claimed errors are that the district court erred in permitting the Government to introduce into evidence, over the defendants' objections, several cases of the whiskey as rebuttal testimony; that the court erred in not striking references to other crimes and conspiracies, and in not declaring a mistrial or granting a new trial on account of alleged improper argument by the district attorney to the jury.

As to the substantive offense denounced by 18 U.S.C.A. § 659, it is clear that the statute does not require knowledge that the property was in interstate commerce when embezzled or stolen but requires knowledge only that the property was embezzled or stolen. The courts have consistently held that "one who knowingly receives stolen chattels must do so at the peril of their having been stolen while in course of interstate transportation". Kasle v. United States, 6 Cir., 233 F. 878, 882. See also, Bloch v. United States, 5 Cir., 261 F. 321, 325; Grandi v. United States, 6 Cir., 262 F. 123, 124; Rosen v. United States, 2 Cir., 271 F. 651, 655; Freedman v. United States, 3 Cir., 274 F. 603, 606; Lonergan v. United States, 8 Cir., 287 F. 538; Thomas v. United States, 4 Cir., 11 F.2d 27, 28, 29; United States v. Crimmins, 2 Cir., 123 F.2d 271, 273. In the last cited case, the reason for that rule was well expressed by Judge Learned Hand, "* * in such cases the accused's conduct is independently immoral or unlawful, and that casts upon him the risk that that element of the crime of which he is ignorant may in fact exist."

In the same case, however, Judge Hand called attention that "it does not follow, because a jury might have found him guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it." We note that the gist of the offense of conspiracy "is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128. See Rent v. United States, 5 Cir., 209 F.2d 893. One of the express or implied terms of the agreement must be to commit the federal offense. In addition to the leading case of United States v. Crimmins, supra, the following cases have held proof of the existence of such an agreement, either express or implied, necessary for conviction for conspiracy. United States v. Bollenbach, 2 Cir., 147 F.2d 199, 201; United States v. Sherman, 2 Cir., 171 F.2d 619, 623; United States v. Smolin, 2 Cir., 182 F.2d 782, 786; United States v. Cordo, 2 Cir., 186 F.2d 144, 147. See also, dissenting opinion of Chief Judge Hutcheson in Pereira v. United States, 5 Cir., 202 F.2d 830, 838. The Supreme Court's opinion in Pereira v. United States, 347 U.S. 1, at pages 11 and 12, 74 S.Ct. 358, at page 364, makes it clear that "* * * the charge of conspiracy requires proof not essential to the convictions on the substantive offenses — proof of an agreement to commit an offense against the United States — * * *." However, the dissenting opinion, not in conflict on...