Hughes v. United States, 6333

Decision Date04 December 1964
Docket Number6335.,No. 6333,6333
Citation338 F.2d 651
PartiesStephen Robert HUGHES, Defendant, Appellant, v. UNITED STATES of America, Appellee. George P. STACK, Defendant, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — First Circuit

Daniel Klubock, Boston, Mass., with whom Paul T. Smith and Manuel Katz, Boston, Mass., were on brief, for Stephen Robert Hughes, appellant.

John F. Zamparelli, Medford, Mass., for George P. Stack, appellant.

A. David Mazzone, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

Each of the two appellants appealed from a judgment of conviction entered upon a jury verdict in the United States District Court for the District of Massachusetts. The one count indictment charged them with unlawfully removing certain merchandise while said merchandise was in customs custody and control in violation of Title 18 U.S.C. § 549. That section provides in part:

"Whoever maliciously enters any bonded warehouse or any vessel or vehicle laden with or containing bonded merchandise with intent unlawfully to remove therefrom any merchandise or baggage therein, or unlawfully removes any merchandise or baggage in such vessel, vehicle, or bonded warehouse or otherwise in customs custody or control; or
"* * *"

Both defendants moved to dismiss the indictment contending that it did not state facts sufficient to constitute an offense against the United States. The motions were denied.

We believe that felonious intent is necessary to a conviction under the statute in question. Since the indictment failed to allege that intent, the trial court erred in not granting the defendants' motions to dismiss.

It is true that felonious intent is not an essential ingredient in every crime and criminal regulation. United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L.Ed. 619 (1922); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922). Both those cases, however, involved the sale of narcotics, and it is only with respect to such offenses as those, so-called "public welfare offenses," that intent may be dispensed with. A crime such as the one presently under consideration, on the other hand, which is substantially a statutory codification of common-law larceny, may not be deprived of its common-law element of intent. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Accordingly larcenous intent — knowledge of a wrongful act — may not be dispensed with.

The Government argues that the requirement of knowledge is satisfied, both in the statute and in the indictment, by the use of the word "unlawfully". We do not agree. It would seem to us that "unlawfully" is a conclusion of law meaning "contrary to law" and no more. We do not interpret it as meaning "knowingly." Indeed, it would seem to us that the indictment as it is phrased would support the conviction of a person who innocently removed goods from customs custody and control before their release, mistakenly thinking the appropriate papers complete when they were not. This is not a case where other allegations in the indictment compel an inference of intent. Portnoy v. United States, 1 Cir., 1960, 316 F.2d 486, cert. den. 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50; Madsen v. United States, 10 Cir., 1947, 165 F.2d 507. Of the cases cited by the Government as being to the contrary, we have not found one which clearly holds that "unlawfully" alone will suffice to imply an element of intent. See Morissette v. United States, supra, 342 U.S. at 264, 72 S.Ct. 240.

Many sections of Title 18, Chapter 27 — Customs — of which § 549 is a part, include the requirement of felonious intent, for example: section 541"knowingly"; section 542"fraudulent,...

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20 cases
  • United States v. DeLeo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 20, 1970
    ...or taking one's property from customs control and custody, thinking that the necessary papers had been completed, Hughes v. United States, 338 F.2d 651 (1st Cir. 1964), rehearing denied, 340 F.2d 609 (1965), are not criminal in the absence of felonious intent. The frequent citation of Moris......
  • State v. Kjorsvik
    • United States
    • United States State Supreme Court of Washington
    • June 20, 1991
    ...and violence and against resistance and by putting in fear, the defendant stole and took from the person). But see Hughes v. United States, 338 F.2d 651, 652 (1st Cir.1964) (in conviction for unlawful removal of materials from Custom's control, the word unlawfully alone did not suffice to i......
  • Robinson v. State
    • United States
    • United States State Supreme Court of Delaware
    • October 8, 1991
    ...be implied from allegations that the defendant seized, confined, kidnapped, abducted and carried away the victim); Hughes v. United States, 338 F.2d 651, 652 (1st Cir.1964). Although the original indictment against Robinson failed to expressly state the statutory mens rea element of "knowin......
  • United States v. Fine, 70-Cr-126.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • April 29, 1976
    ...was injured "unlawfully" is sufficient to state the knowledge or intent element of the underlying offense. In Hughes v. United States, 338 F.2d 651, 652 (1st Cir. 1964), the court "It would seem to us that `unlawfully' is a conclusion of law meaning `contrary to law' and no more. We do not ......
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