Love v. United States

• Decision Date: 11 March 1968
• Docket Number: No. 18676.,18676.
• Citation: 386 F.2d 260
• Parties: William Edward LOVE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

386 F.2d 260 (1967)

William Edward LOVE, Appellant, v. UNITED STATES of America, Appellee.

No. 18676.

United States Court of Appeals Eighth Circuit.

December 13, 1967.

Certiorari Denied March 11, 1968.

COPYRIGHT MATERIAL OMITTED

Harold A. Dronen, Fargo, N. D., for appellant and filed brief.

Gary Annear, Asst. U. S. Atty., for the District of North Dakota, Fargo, N. D., for appellee; John O. Garaas, U. S. Atty., for the District of North Dakota, Fargo, N. D., was on the brief.

Before VOGEL, Chief Judge, and MATTHES and BLACKMUN, Circuit Judges.

Certiorari Denied March 11, 1968. See 88 S.Ct. 1111.

VOGEL, Chief Judge.

Following grand jury indictment, William Edward Love, appellant herein, was tried before and found guilty by a jury of a violation of 18 U.S.C.A. § 2312, commonly referred to as the Dyer Act. Appeal is taken from the judgment of conviction.

The facts upon which this appeal is based are for the most part uncontroverted. On Sunday, May 22, 1966, appellant Love negotiated in Aberdeen, South Dakota, with Merle Bieber for the purchase from Bieber of a 1963 Chevrolet Impala automobile which Bieber had advertised as being for sale. After some negotiating a price of $1,650 was agreed upon. Appellant gave Bieber two documents, dating them the preceding day, May 21, 1966. These documents became known as Exhibits 1 and 2. Exhibit 1 was drawn on a check blank of a Sturgis, South Dakota, bank and made payable to Merle Bieber for $1,650. This document had a notation in very cramped partially illegible handwriting to the effect that it was a sight draft to be presented ten days after the purchase. Exhibit 2 was an "Automobile Purchase Draft" in the same amount made payable through the same bank which appellant described to Bieber as, "Oh, that's just kind of for your records or a receipt for you." He did not indicate to Bieber that the socalled Automobile Purchase Draft or "receipt" should be presented to the bank or sent through banking channels for payment.

Upon receipt of Exhibits 1 and 2, Bieber transferred the car title over to the appellant. Appellant took possession of the car and drove it to Fargo, North Dakota, where the next day, May 23, 1966, he sold it to Muscatell Chevrolet for $1,000, receiving a check in that amount in payment.

Bieber deposited Exhibit 1 in his account in the Aberdeen National Bank, from which it was forwarded through banking channels to the Sturgis, South Dakota, bank for payment. The Sturgis bank treated Exhibit 1 as a check and returned it marked "Acc't Closed". Exhibit 1 was returned to Bieber on Saturday, May 29, 1966. It was not again presented to the Sturgis bank for payment. Exhibit 2 was never presented to the bank.

On July 12, 1966, the appellant was in jail in Duluth, Minnesota, on a state charge concerning the theft of an automobile. He was represented by John Durfee, the Public Defender. At a conference appellant asked the Public Defender to contact an F.B.I. agent for him. At a hearing in the trial court's chambers during the trial of this case below, the Public Defender testified that appellant said he wanted to see an F.B.I. agent so that he could be prosecuted by the federal government rather than by a state government.

Malford Eid, an F.B.I. agent, did, at the request of the Public Defender, call upon the appellant on July 13, 1966, while the appellant was confined in jail in Duluth, Minnesota. Appellant told the F.B.I. agent that he did not want to make a statement but that he wanted the F.B.I. to assist him in returning certain cars to their original owners. After first advising the appellant of his rights, the F. B.I. agent took down the information given him by the appellant in the form of a statement which appellant refused to sign but which was corrected in several instances at the suggestion of the appellant. This statement referred to a number of illegal automobile transactions in addition to the one involved here.

During the trial additional evidence was admitted showing the appellant's banking transactions at the Sturgis, South Dakota, bank.

On this appeal, Love raises four contentions in urging that his conviction be reversed. His claimed grounds of error are:

1. The trial court erred in denying the appellant's motion for a directed verdict of acquittal because at the time the vehicle was transported across state lines appellant owned the car and accordingly no Dyer Act violation occurred.

2. The evidence is insufficient to support the verdict because the government failed to establish the requisite intent.

3. The trial court erred in admitting into evidence the F.B.I.'s memorandum dated July 13, 1966, and erred further in denying appellant's motion for mistrial after admitting the memorandum.

4. The trial court erred in admitting into evidence records and information regarding appellant's banking transactions.

We overrule the appellant on all points and affirm the conviction.

Appellant's first contention is entirely without merit. When he transported the automobile from South Dakota into North Dakota he was not the owner thereof. Whether Exhibit 1 was a check, as Bieber was led to believe by the appellant, and as it was treated by the Aberdeen and Sturgis banks, or whether it was a draft for collection ten days after presentation is immaterial here. The testimony shows that at no time did the appellant have enough money in his account in the Sturgis bank to cover the check and that he made no arrangements of any kind for payment of check or draft. Additionally, his account in the bank had been closed at the time he executed Exhibit 1. Obviously, as the jury found, he obtained the Chevrolet automobile under false pretenses. While some older cases strictly interpret the meaning of the word "stolen" as used in the Dyer Act, the Supreme Court clarified the issues in United States v. Turley, 1957, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430. Noting that the Fifth, Eighth and Tenth Circuits favored the narrow definition of the word "stolen" while the Fourth, Sixth and Ninth Circuits favored a broad one, the Supreme Court set at rest the conflicts by saying, at pages 416-417 of 352 U.S., at page 402 of 77 S.Ct.:

"* * * Public and private rights are violated to a comparable degree whatever label is attached to the felonious taking. A typical example of common-law larceny is the taking of an unattended automobile. But an autobile is no less `stolen\' because it is rented, transported interstate, and sold without the permission of the owner (embezzlement). The same is true where an automobile is purchased with a worthless check, transported interstate, and sold (false pretenses). Professional thieves resort to innumerable forms of theft and Congress presumably sought to meet the need for federal action effectively rather than to leave loopholes for wholesale evasion.

"We conclude that the Act requires an interpretation of `stolen\' which does not limit it to situations which at common law would be considered larceny. The refinements of that crime are not related to the primary congressional purpose of eliminating the interstate traffic in unlawfully obtained motor vehicles. The Government\'s interpretation is neither unclear nor vague. `Stolen\' as used in 18 U.S.C. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny."

Appellant cites to us the District Court case of United States v. O'Carter, D.C. Iowa, 1949, 91 F.Supp. 544. The rule expressed in O'Carter has long since been overruled by Turley and also by this court in Landwehr v. United States, 8 Cir., 1962, 304 F.2d 217, 220. It is settled law that the word "stolen" as used in the Dyer Act is to be liberally construed.

The resolution of the appellant's first contention leaves little substance to the second, wherein he claims insufficiency of the evidence to support the verdict. Ample evidence justified the jury's finding that the car was taken under false pretenses, whether we consider Exhibit 1 to be a no-account check, as contended by the government, or a ten-day sight draft, as contended by the appellant. In either case the appellant represented to Bieber that he would be paid through the agency of the Sturgis bank when at the time the document was given appellant knew or certainly should have known that he had no funds deposited with the bank. Appellant's checking account at the Sturgis bank was closed by the bank on May 11, 1966, eleven days prior to the transaction between appellant and Bieber, and no arrangement was made with the Sturgis bank to act as a clearing house for bank drafts, either before or after the purported draft or drafts were drawn. Where sufficiency of the evidence is challenged, an appellate court must take that view of the evidence most favorable to sustaining the jury's verdict and hold as established all reasonable inferences that flow therefrom and tend to support the verdict. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Canaday v. United States, 8 Cir., 1966, 354 F.2d 849, 851; McIntosh v. United States, 8 Cir., 1965, 341 F.2d 448, 451, certiorari denied, 381 U.S. 947, 85 S.Ct. 1778, 14 L.Ed.2d 711. Here, the day after "buying" the car for $1,650, appellant sold it in another state for $1,000. He made no attempt to apply the proceeds of this sale toward the purchase of the automobile from Bieber. In addition, the oral statement of the appellant to the F.B.I. agent shows that appellant had followed a similar practice with other cars, from which the jury could draw the inference of specific intent and the absence of mistake. Whether appellant was guilty of obtaining the car under false pretenses was a question of...