Gay v. United States

• Decision Date: 27 March 1969
• Docket Number: No. 18911.,18911.
• Citation: 408 F.2d 923
• Parties: Jesse GAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.2d 923 (1969)

Jesse GAY, Appellant, v. UNITED STATES of America, Appellee.

No. 18911.

United States Court of Appeals Eighth Circuit.

March 27, 1969.

COPYRIGHT MATERIAL OMITTED

William G. Line, Fremont, Neb., for appellant.

Asher E. Schroeder, U. S. Atty., Sioux City, Iowa, for appellee, Stephen M. Turner, previously United States Atty., on the brief.

Before VOGEL and LAY, Circuit Judges, and BECKER, Chief District Judge.

BECKER, Chief District Judge.

Jesse Gay appeals from a conviction by a jury in the United States District Court for the Northern District of Iowa, of two counts charging violations of Section 2314, Title 18, U.S.C., and of Section 659, Title 18, U.S.C., respectively.

The first count charged that from on or about January 19, 1965, until on or about January 27, 1965, the appellant transported from Mason City, Iowa, to Houston, Texas, and Dallas, Texas, a load of meat consisting of 40,000 pounds of spareribs of an approximate value of $9,400.00, knowing "the said meat to have been stolen."

The second count charges that on or about January 19, 1965, appellant obtained the same meat "by fraud and deception from the platform and depot of Jacob E. Decker and Sons, Mason City, Iowa," ("Decker" hereinafter) when the same was "part of an interstate shipment of freight."

The Evidence

The appellant Gay was an independent trucker (not licensed by the Interstate Commerce Commission, "ICC" hereinafter), who in January of 1965 was looking for a load to haul for hire. About the same time, meat packer Decker of Mason City, Iowa, offered 40,000 pounds of spareribs for sale. Personett, the complaining witness in this case, was a broker in Los Angeles. Personett learned of this offering and dealt with a wholesaler in San Francisco, who agreed to buy the meat. The wholesaler directed that the meat be delivered to Pacific Cold Storage in Los Angeles.

Personett and the wholesaler agreed that the meat was to leave Iowa January 19 and to be delivered in Los Angeles January 21 in 1965.

Sometime before January 15, 1965, appellant called Personett by long distance telephone from Minneapolis or St. Paul and asked Personett if he had a load to be hauled. Appellant and Personett then agreed that appellant would haul the meat from Decker in Mason City, Iowa, to Los Angeles, as scheduled, for $700.00 which was considerably less than the charges of a trucker licensed by the ICC.

In accordance with Personett's custom, to avoid difficulties with the ICC, it was agreed that Personett would pay $9,400.00 for the meat and request that the invoice of sale show appellant as the purchaser. Both appellant and Personett intended that Personett be the owner of the meat, and that no moneys be loaned to appellant.

On January 18, 1965, Personett sent to the appellant a copy of a confirmation showing Decker as seller and appellant as buyer of the meat. Personett also sent to appellant a second confirmation showing appellant as seller and Personett as buyer of the meat, at a price of $700.00 in excess of the purchase price.

On January 19, 1965, appellant arrived at Decker's docks. The meat was loaded into his trailer which was then sealed shut. Appellant was then given an invoice showing him as buyer, and a bill of lading showing him as consignee of the meat, by Decker. Appellant took no part in the preparation of the documents issued to him, and did not suggest that they list him as buyer.

Thereafter, on or before January 20, 1965, appellant, with his loaded trailer needing repairs, was in Sioux City, Iowa, where he sought assistance from a broker in trucking service. Appellant asked the broker, with whom he had done business, for help in securing repairs to the landing gear or support for his trailer, and in leasing a trailer for use. On January 20, appellant left his trailer at a repair shop and leased another trailer from a truck line, for a period of two weeks. On the same day appellant's trailer was repaired and returned to appellant who was accompanied by an unidentified companion. The leased trailer was returned to the lessor in Sioux City twelve days later.

While in Sioux City appellant, representing himself to be the owner, sold 8 to 10 boxes of spareribs to Michael Econ, and 86 boxes of spareribs to Paul Braunger for $425.70, a price much below the market.

On January 28 and February 5, 1965, appellant was in Houston, Texas, where he sold two lots of spareribs to Fred Pauly. On February 1, 1965, in Dallas, Texas, he sold spareribs to Robert Perry for $4,413.20. The meat (all spareribs) was never delivered to Pacific Cold Storage in Los Angeles. Personett suffered a loss of $9,400.00 as a result.

After conviction, appellant was sentenced to six months' imprisonment on Count I and two years' probation on Count II. It was provided that the sentences would run concurrently.

I

Appellant's first assignment of error is that the trial court erred in not sustaining his motion for judgment of acquittal on both counts "for the reason that there was no substantial evidence to support a conviction under either count." More specifically, it is appellant's contention that there was no evidence which could support a finding, necessary to the verdict, that appellant was not in fact the owner of the goods which he was charged with stealing. Appellant notes in this regard that the bill of lading, the invoice, and the confirmations of Personett to appellant showed appellant as owner of the meat; that, furthermore, there existed an account (on Personett's draft for the purchase price) showing that appellant owed the complaining witness the purchase price of the allegedly-stolen meats; and that, over against this evidence, there was only the testimony of the complaining witness Personett that he "assumed" that he retained ownership, even though he admitted the listing of appellant as buyer and owner in the invoice, the confirmations, and notations on the draft.

Appellant's contention is without merit. Assuming, without so holding, that the documents issued by Personett and Decker vested appellant with legal title to the meat, such title would not require acquittal as a matter of law on either count. Title to goods transported is not a defense, if the title and possession were secured as a result of fraud or the goods stolen within the meaning of Section 2314. United States v. Leggett (C.A.6) 292 F.2d 423; cf. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430, and cases cited in note 17 thereof, including Ackerson v. United States (C.A.8) 185 F.2d 485. Therefore, the existence of title in the appellant is no defense to Count I.

Furthermore, the evidence strongly supports a finding that the meat was stolen, as defined in Instruction No. 12, following the doctrine of the Turley case, supra. See the discussion in Part III of this opinion. Finally, the documents issued by Personett before the delivery of the meat, and accepted by appellant, purported to invest appellant with title, and then to divest him of title by the contemporaneous confirmation of resale to Personett. There was substantial evidence that Personett was the beneficial owner of the meat and the documents were part of a subterfuge to avoid or evade ICC laws and regulations and to conceal the true ownership of the cargo.

United States v. Hamrick (C.A.4) 293 F.2d 468, relied on by appellant, obviously does not support his first assignment of error in respect to Count I. In that case there was a total absence of proof that the defendant knew the property was stolen.

II

Appellant's second assignment of error is based on the trial court's refusal to give defendant's requested instruction that the law forbids a broker using a false bill of lading or bill of sale in permitting any person to obtain transportation of property subject to ICC regulations for less than the applicable rate, and that the law prohibits the use of false documents in an effort to evade or defeat regulation prescribed by law for motor carriers or brokers. This was error, appellant contends, because the refused instruction pertained to a defense of appellant. Appellant argues that the instruction supports the defense that appellant was the lawful owner of the meat; that being the owner thereof he cannot be found to have stolen the meat. Appellant relies on Strauss v. United States (C.A.5) 376 F.2d 416, which reiterates the general rule that

"where the defendant\'s proposed charge presents, when properly framed, a valid defense, and where there has been some evidence relevant to that defense adduced at trial, the charge must be given on that defense."

The refusal of this instruction was not error. As shown in Part I above, the existence of title in the appellant was not a defense in this case. The requested instruction was an abstract declaration of irrelevant law, which was not material to a valid defense and submitted no factual theory of a defense. It was not error to refuse the requested instruction. Ryan v. United States (C.A.9) 314 F.2d 306.

III

In his third assignment of error appellant argues that the Court erred in denying his motion for judgment of acquittal on Count I "as there was no evidence to show that defendant knew the goods were stolen prior to the commencement of the interstate transportation." This assignment is without merit. Section 2314 is violated if goods are stolen in course of transportation and thereafter transported in interstate commerce, even if the goods were not stolen before commencement of the journey. Lyda v. United States (C.A.5) 279 F.2d 461. In the Lyda case the defendant independent trucker received a load of pecans at Natchitoches, Louisiana, for transportation to Waycross, Georgia. He apparently started to Georgia. At Alexandria, Louisiana, he decided to "expropriate" the pecans and take them to Texas and sell them, all of which he proceeded to do. The principles of the Lyda case are directly in point and demonstrate the...