Corey v. United States

• Decision Date: 12 July 1962
• Docket Number: No. 17566.,17566.
• Citation: 305 F.2d 232
• Parties: Fred John COREY and Mary Carolyn Fulghum, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

305 F.2d 232 (1962)

Fred John COREY and Mary Carolyn Fulghum, Appellants, v. UNITED STATES of America, Appellee.

No. 17566.

United States Court of Appeals Ninth Circuit.

June 15, 1962.

Rehearings Denied July 12, 1962 and August 1, 1962.

COPYRIGHT MATERIAL OMITTED

Birenbaum, Anderson & McClelland, David B. Birenbaum, and Allen E. Anderson, San Francisco, Cal., for appellants.

Cecil F. Poole, U. S. Atty., Jerrold Ladar and Laurence E. Dayton, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before POPE, BARNES and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

The defendants were tried before a jury and convicted of violating the Mail Fraud Act (18 U.S.C. § 1342) and the National Stolen Property Act (18 U.S.C. §§ 2314 and 2315), and of conspiring to violate those Acts (18 U.S.C. § 371). They have appealed, urging error in the admission of certain evidence and insufficiency of the evidence as a whole. We affirm.

The evidence may be summarized as follows:

A large quantity of jewelry was stolen from a jewelry store in Las Vegas, Nevada on May 31, 1960. On June 20, 1960, defendants Mary Fulghum and Fred Corey were seen together at the Las Vegas Airport. After a brief conversation, they separated. Mrs. Fulghum started toward her car in the parking lot. Corey went to the baggage checking counter and picked up a suitcase. At that point both defendants were arrested by Las Vegas police. The suitcase was opened with a key taken from Corey's pocket. It contained part of the stolen jewelry.

Asked if he had "any more of this same merchandise," Corey denied that the jewelry belonged to him, and stated "I have never seen it before in my life." Mrs. Fulghum said nothing. Both were taken to the police station and questioned.

A month later, on July 20, 1960, Mrs. Gertrude Orem of San Jose, California received a telephone call from Mrs. Fulghum, whom she had known for some years. Mrs. Fulghum said that she was in the nearby town of Campbell, California, and was going to Los Angeles that evening. She told Mrs. Orem that she had a package for a friend named "Lee Roberts" and that she had looked in the telephone book for his address but could not find it. She asked Mrs. Orem if she could send the package to "Lee Roberts" at Mrs. Orem's address. Mrs. Orem agreed.

The following morning "Lee Roberts" called Mrs. Orem and asked if she had received a package for him. He called again that afternoon and the following morning. The next afternoon he appeared at Mrs. Orem's home. Mrs. Orem testified that the man who came to her home and identified himself as "Lee Roberts" was the defendant Fred Corey. He asked Mrs. Orem if the package had arrived and was told that it had not. He expressed surprise since, as he said, it had been sent by air mail. When Mrs. Orem pointed out that there was no air mail between Campbell and San Jose, he responded "perhaps it was sent from Las Vegas." Mrs. Orem offered to forward the package if it arrived. "Lee Roberts" gave her an address written on a page torn from a notebook. The notebook was found in Corey's possession after his arrest.

It subsequently appeared that the San Jose Post Office had received a package addressed to "Lee Roberts" at Mrs. Orem's house number but on another street. There was no such house number on the street given in the address. The address on the package was meaningless; it directed the package to a non-existent place.

However, the Post Office found a person named "Lee Roberts" listed at still another address and delivered the package to him. He opened the package and upon discovering its contents turned it over to the San Jose police. The package contained jewelry stolen in the Las Vegas robbery of May 31st. The parcel was postmarked at Hollywood, California, on July 21st. It bore a fictitious Los Angeles return address.

After recovering the jewelry, San Jose police established a watch at the forwarding address given to Mrs. Orem by "Lee Roberts." Corey appeared, and was arrested. Corey told the police that he knew nothing about the name "Lee Roberts" or about any package that was to be sent to him or to "Lee Roberts," that he had never been at Mrs. Orem's house and that he had never talked with Mrs. Orem.

We limit our consideration to the conviction under count four. The questions raised by the defendants which seem to us to merit discussion arise under this count of the indictment. The sentences of each defendant on all counts run concurrently and none exceeds the sentence on count four.

Count four charged that defendants caused the jewels to be concealed knowing them to be stolen, in violation of 18 U.S.C. § 2315. It further alleged that the property "constituted interstate commerce" in that it had been transported into San Jose, California, from Las Vegas, Nevada.

The contested elements of the offense are concealment, the required relationship to interstate commerce, and knowledge that the property was stolen. It is argued that the evidence was insufficient with respect to each defendant and as to each of these elements of the offense.¹

It is defendants' position that since there is no evidence that they ever possessed the jewelry, they cannot be said to have concealed it. However, it is enough if they aided and abetted others in the concealment of the jewelry, or caused it to be done.² The evidence was sufficient for the jury to conclude that both defendants participated in a scheme to ship the jewelry to Corey under an assumed name at an innocent address not connected with the defendants. The only possible purpose and (if successful) the necessary effect of these acts would have been to conceal the jewelry from law enforcement officials who might have been watching Corey's own address in anticipation of the possible appearance of more of the jewelry from the Las Vegas robbery. This would seem to us to constitute a concealment of the jewelry by the defendants within the ordinary meaning of those words.

18 U.S.C. § 2315 is violated only if the things concealed are "moving as, or * * * a part of, or * * * constitute interstate or foreign commerce." Count four alleged that the jewelry concealed "constituted interstate commerce in that it had been transported into the City of San Jose from Las Vegas, Nevada * * *."

The government's evidence established that the jewelry was stolen in Las Vegas on May 31st and mailed from Los Angeles to San Jose on July 21st. Defendants argue that the natural inference from these facts is that the jewelry came to rest in California prior to its transportation from Los Angeles to San Jose, and that the government therefore failed to discharge its burden of proving that the movement in which the concealment occurred constituted interstate commerce.

The origin of the jewelry was Las Vegas, Nevada; its ultimate destination was at least as distant as San Jose, California. Corey's remark to Mrs. Orem that the package might have been "sent from Las Vegas," suggested that Los Angeles was only a point of transshipment in a continuous interstate journey. The jury might well have concluded that the hazardous journey would not have been begun until it could be completed without substantial interruption.³ There was nothing in the evidence to indicate the contrary.

Once an interstate journey has begun, the question of whether it has come to an end is generally one of fact for the jury.⁴ The jury may find that property remained in interstate commerce although it has passed its initial stopping place within the state of destination.⁵ This is true despite proof that the goods traveled a circuitous route,⁶ or lack of proof as to the precise means of interstate transportation utilized.⁷ Goods have been found to continue in interstate commerce despite a lapse of time between theft in one state and appearance in another state which exceeded the time between these two events in the present case.⁸

It is immaterial that defendants' concealment of the property was confined to a portion of the interstate journey which occurred wholly within a single state.⁹ And it would have been unnecessary to show that defendants knew that the goods were or had ever been in interstate commerce.¹⁰

The facts established by the government must permit reasonable men to infer that the affected property remained in interstate commerce at the time it was concealed. But it is not necessary that the government's proof exclude every speculative possibility that the transportation may have been interrupted at some point within the state of destination in such a way as to bring the interstate journey to an end and render subsequent movement within that state local commerce. On the basis of the evidence in the present record and reasonable inferences therefrom the jury could have concluded that at the time the defendants concealed the jewelry it "constituted interstate commerce" moving without substantial interruption from Las Vegas, Nevada to San Jose, California. The evidence was not insufficient merely because the jury might have drawn different inferences or arrived at a different conclusion.¹¹

Finally, it seems to us that "the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that `it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which if untrue could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control.'"¹² The government's evidence fairly indicated a continuous movement of jewelry in interstate commerce from Las Vegas, Nevada to San Jose, California. It was not incumbent on the government to offer positive evidence of the negative proposition that the jewelry did not come to rest in Los Angeles or elsewhere on the journey where, as here, the evidence showed the defendants' relationship to the movement of the jewelry to be...