U.S. v. Feroni, 80-5243

• Decision Date: 28 July 1981
• Docket Number: No. 80-5243,80-5243
• Citation: 655 F.2d 707
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony FERONI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 707

655 F.2d 707

UNITED STATES of America, Plaintiff-Appellee, v. Tony FERONI, Defendant-Appellant.

No. 80-5243.

United States Court of Appeals Sixth Circuit.

Argued April 17, 1981.

Decided and Filed July 28, 1981.

Harland E. Cohen, Court-appointed, Southfield, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., Joseph Papelian, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before LIVELY, KENNEDY and MARTIN, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Tony Feroni was indicted on an eighteen-count indictment alleging that he headed a scheme to pass counterfeit Liberty State Bank & Trust cashier checks. Following a trial in the Eastern District of Michigan, Feroni was convicted of the following offenses: conspiracy to transport in interstate commerce falsely made, forged, and counterfeit securities, 18 U.S.C. §§ 371 and 2314; interstate transportation of falsely made, forged and counterfeited securities, 18 U.S.C. §§ 2314 and 2(b); interstate transportation of stolen money, 18 U.S.C. §§ 2314 and 2(b); and bank larceny, 18 U.S.C. §§ 2113(b) and 2(b). He was sentenced to a total of fifteen years.

Feroni makes two contentions on appeal. First, he argues that his conduct did not constitute a violation of 18 U.S.C. § 2113(b). ¹ He argues that the statute only proscribes actions which constitute common law larceny. Feroni asserts that his conduct lacked the trespassory taking element of larceny. The government agrees, conceding that appellant's scheme amounted to taking by false pretenses, but claims that § 2113(b) encompasses all felonious takings, including taking by false pretenses. The issue before us was expressly reserved in United States v. Pruitt, 446 F.2d 513 (6th Cir. 1971). We must decide whether § 2113(b) covers takings from a bank which do not constitute common law larceny.

We are not the first court to address this question. The circuits are split, and the positions have been well established. The government's argument for a broad construction of the words "Whoever takes and carries away, with intent to steal or purloin" finds support in the decisions of the Seventh, Second, and Fifth Circuits. United States v. Guiffre, 576 F.2d 126 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978); United States v. Fistel, 460 F.2d 157 (2d Cir. 1972); Thaggard v. United States, 354 F.2d 735 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). Those decisions all rely on the Supreme Court's decision in United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957). In Turley, the issue was whether the word "stolen" in the National Motor Vehicle Theft Act, commonly known as the Dyer Act, 18 U.S.C. § 2312, ² is limited to takings which amount to common law larceny. The Court stated:

We recognize that where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning. But "stolen" (or "stealing") has no accepted common-law meaning. On this point the Court of Appeals for the Fourth Circuit recently said:

"But while 'stolen' is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny. 'Steal' (originally 'stale') at first denoted in general usage taking through secrecy, as implied in 'stealth,' or through stratagem, according to the Oxford English Dictionary. Expanded through the years, it became the generic designation for dishonest acquisition, but it never lost its initial connotation. Nor in law is 'steal' or 'stolen' a word of art. Blackstone does not mention 'steal' in defining larceny 'the felonious taking and carrying away of the personal goods of another' or in expounding its several elements. IV Commentaries 229 et seq." Boone v. United States, 235 F.2d 939, 940 (C.A. 4th Cir. 1956).

Webster's New International Dictionary (2d ed., 1953) likewise defines "stolen" as "Obtained or accomplished by theft, stealth, or craft ...." Black's Law Dictionary (4th ed., 1951) states that "steal" "may denote the criminal taking of personal property either by larceny, embezzlement, or false pretenses." Furthermore, "stolen" and "steal" have been used in federal criminal statutes, and the courts interpreting those words have declared that they do not have a necessary common-law meaning coterminous with larceny and exclusive of other theft crimes. Freed from a common-law meaning, we should give "stolen" the meaning consistent with the context in which it appears.

352 U.S. at 411-12, 77 S.Ct. at 399-400 (footnotes omitted). After examining the legislative history of the Dyer Act, the Court concluded 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." Id. at 417, 77 S.Ct. at 402.

Feroni's contention finds support in the decisions of the Ninth and Fourth Circuits. LeMasters v. United States, 378 F.2d 262 (9th Cir. 1967); United States v. Rogers, 289 F.2d 433 (4th Cir. 1961). Those courts have concluded that the words "steal" and "purloin" in section 2113(b), in the light of the legislative history, cannot be construed to cover the obtaining of money by false pretenses. LeMasters, supra, at 267; Rogers, supra, at 437. We believe that this reasoning follows the intent of Congress, to the extent that it can be determined, when the predecessor to § 2113(b) was enacted in 1937 as an amendment to the 1934 bank robbery statute.

The circuits which have endorsed a broad construction of § 2113(b) have miscalculated the effect of Turley on this question. Turley does not establish that the word "stolen" ³ in any federal criminal statute includes all felonious takings. The Court simply found that the word is unencumbered by common law meanings. The opinion explicitly states that the meaning of the word should be consistent with the context in which it appears, and further that it is appropriate to consider the purpose of the statute and to gain what light is available from the legislative history. 352 U.S. at 413, 77 S.Ct. at 400. It is clear that the Court contemplated that "stolen" could have different meanings in different statutes.

None of the circuits which purport to follow Turley by broadly construing § 2113(b) examines the legislative history of that enactment. Each of those decisions is nothing more than a mechanical application of Turley. They provide no discussion of why the context of § 2113(b) suggests that a broad interpretation of its provisions is appropriate. Guiffre, supra, at 128; Fistel, supra, at 162; ⁴ Thaggard, supra, at 737. In short, while those cases appear to apply the result of Turley, they fail to apply the analysis which Turley prescribes.

We agree with the Ninth and Fourth Circuits' conclusion that the legislative history of § 2113(b) supports a narrower construction of the statute. We can do no better than to quote from the thoughtful opinion of the Ninth Circuit:

The 1937 enactment of 18 U.S.Code § 2113(b) had a background and legislative history wholly different from those of the 1919 stolen motor vehicle act. We are aware of no background of evil at which Congress was pointing the statute except the evil of interstate operation of gangster bank robbers. As we have seen, the Senate in 1934 passed a bill clearly and expressly creating several federal crimes against banks, including the crime of obtaining by false pretense. The House, and the Congress, rejected the bill, enacting only the robbery provisions. In 1937, without any further discussion of evil to be cured, Congress enacted § 2113 clearly covering robbery and burglary, and including § 2113(b), the provision containing the ambiguous words "steal" and "purloin." In construing the words we are obliged by the Turley case to give them a "meaning consistent with the context in which (they) appear." We think that that context, in the light of legislative history, requires that they be construed as not covering the obtaining of money by false pretenses. The words are used in conjunction with the words "takes and carries away," and these are the classic words used to define larceny. The words do not have a necessary common law meaning; rather, they are ambiguous. They are used in a statute, the purpose of which, as stated in its title, is ("To Amend the Bank-Robbery Statute to Include Burglary and Larceny"). In such a case, the title is "a useful aid in resolving ambiguity." FTC v. Mandel Brothers, Inc., 1959, 359 U.S. 385, 389, 79 S.Ct. 818, 822, 3 L.Ed.2d 893; Maguire v. Commissioner, 1941, 313 U.S. 1, 9, 61 S.Ct. 789, 85 L.Ed. 1149.

In the bank situation we see no reason, urgent or otherwise, why Congress in 1937 should have wanted to enter the field of obtaining by false pretenses, duplicating state law which was adequate and effectively enforced, and the duplication of which would bring innumerable cases, most of them small, within the jurisdiction of federal prosecutors and courts. Congress was as aware in 1937 as it was in 1934, when it rejected the unambiguous provision making obtaining by false pretense from a bank of (sic) federal crime, that such an extension of federal law would serve no purpose except to confuse and dilute state responsibility for local crimes which were being adequately dealt with by state law. None of the reasons which persuaded the circuits and finally the Supreme Court to interpret broadly the word stolen in the motor vehicle act were present in 1937, when Congress wrote § 2113, or are present today.

If the oft cited canon of statutory construction that ambiguities in penal statutes are to be resolved in favor of the accused has any vitality, this is a plain case for its application.

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