U.S. v. Maloney

Decision Date18 July 1979
Docket NumberNo. 77-3835,77-3835
Citation607 F.2d 222
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Martin James MALONEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Tom O'Toole, Federal Public Defender, David M. Heller, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.

W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., A. Bates Butler, III, 1st Asst. U. S. Atty., Jon R. Cooper, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BARNES and HUG, Circuit Judges, and CURTIS, * District Judge.

BARNES, Circuit Judge:

Appellant Maloney, a Navajo Indian, was found guilty of violating 18 U.S.C. §§ 1153 and 661 for taking $1,797 from Mrs. McCray, also a Navajo Indian, while on an Indian reservation. The sole issue raised on appeal is whether the district court erred in refusing to instruct the jury that they had to find that the appellant intended to permanently deprive Mrs. McCray of the money before they could find him guilty as charged in the indictment. Three concomitant questions arise from the consideration of that issue in the present appeal: (1) whether the offense of larceny is "defined and punished" by federal law as required in 18 U.S.C. § 1153, (2) whether the term "larceny" as used in 18 U.S.C. § 1153 is limited to its common law definition, and (3) whether the offense of larceny, if defined in the federal statute at issue here (18 U.S.C. § 661), incorporates the common law elements of the offense so as to necessitate a showing of an intent to permanently deprive the owner of his property.


On July 9, 1977, Maloney visited Mrs. McCray 1 at her home located within an Indian reservation in Arizona. During the course of the visit while Mrs. McCray was away from the room, Maloney found and took a bundle of money from underneath a coffee table, said money being revenue from a service station owned by Mrs. McCray. Shortly afterward, he wrote down her telephone number and left.

The following day, Mrs. McCray discovered that the money was missing. After failing to locate appellant's home telephone number, she called his place of work and spoke to his supervisor, Sergeant Hale. 2 Mrs. McCray later testified that she did not want the matter to go any further and merely told Sergeant Hale to tell Maloney to come out to see her and to return the money if he had it.

On July 12, 1977, Maloney was questioned by the Internal Affairs Division of his department and denied taking the money. He was instructed not to contact Mrs. McCray until the internal investigation was completed. On July 15, 1977, Maloney was again interviewed during which time he admitted taking the money. On July 20, 1977, he repaid Mrs. McCray the amount he had taken plus a small additional sum for her inconvenience. Subsequently, the Federal Bureau of Investigation became involved and an indictment was returned against the appellant.

At the trial, one of the key defense arguments was that Maloney had not intended to permanently deprive Mrs. McCray of the money. 3 The district court judge refused to give Defendant's Jury Instruction No. 1 on the grounds that it would require a finding of such an intent, 4 whereas 18 U.S.C. § 661, which was held by the district court to define a federal crime of larceny, would not require that finding. Timely objection was made by the defense. The jury found the appellant guilty and he received a probationary sentence.

A. Is larceny "defined and punished" by 18 U.S.C. § 661?

Certain offenses committed by one Indian against another within Indian country 5 are expressly placed within the jurisdiction of the federal courts. 18 U.S.C. § 1153 provides in relevant part:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

To determine the necessary elements of any one of the offenses listed in the statute, with the exception of burglary and incest, one must initially turn to a specific federal statute which "defines and punishes" that crime or, if no federal law has been enacted covering the offense, to the laws of the state wherein the crime was committed. As stated in 18 U.S.C. § 1153:

In addition to the offenses of burglary and incest, any other of the above offenses which are not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

In the present case, appellant was indicted for an offense which was larcenous in nature. 18 U.S.C. § 661 was used by the government to satisfy the 18 U.S.C. § 1153 requirement of a federal statute which "defines and punishes" the crime of larceny. However, because 18 U.S.C. § 661 does not directly state that it defines the offense of larceny and because the word "larceny" is not referred to in the language of the statute, a question is raised as to whether the statute does indeed define and punish the crime of larceny.

18 U.S.C. § 661 provides in relevant part:

Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows:

If the property taken is of a value exceeding $100, or is taken from the person of another, by a fine of not more than $5,000, or imprisonment for not more than five years, or both; in all other cases, by a fine of not more than $1,000 or by imprisonment not more than one year, or both.

18 U.S.C. § 661 is based upon title 18, U.S.C. 1940 ed., § 466 (March 4, 1909, ch. 321, § 287, 35 Stat. 1144) 6 ("Section 466") with some minor changes. It is clear from the legislative history of Section 466 that Congress intended to enact a statute to deal with the crime of larceny. In the Senate debates after the proposed statute was read, the following exchange between Senators Kean and Heyburn occurred:

MR. KEAN. Will the Senator explain the last section read?

MR. HEYBURN. I will do so. This section conforms to the law of the large majority of the States in dividing larceny into two classes and grading the punishment accordingly. The amendments, I think, are self-explanatory.

I do not know that any further explanation could be made. It is a section which deals with existing law. It is based upon an existing statute which provides for the punishment of some offenses, except that it makes no distinction between a very grave offense and a more moderate form of the offense.

43 Cong. Rec. 1191 (1908). 7 Section 466 was derived from the Crimes Act of 1790, Act of April 30, 1790, ch. 9, § 16, 1 Stat. 116, which was directed to larceny as well as certain other offenses. See United States v. Armata, 193 F.Supp. 624, 626 (D.Mass.1961).

All of the courts which have considered the question have concluded that the offense defined in 18 U.S.C. § 661 is larceny. Many of these cases admittedly deal with the issue only in terms of Dicta. See United States v. Sharpnack, 355 U.S. 286, 289 n. 5, 78 S.Ct. 291, 294, 2 L.Ed.2d 282 (1958) (". . . the following offenses committed within federal enclaves are now made criminal by such enactments of Congress: . . . larceny, 18 U.S.C. § 661 . . . ."); United States v. Francisco, 536 F.2d 1293, 1295 (9th Cir.), Cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 312 (1976) ("The definition and penalties for the specified crimes of murder, manslaughter, carnal knowledge of a female under the age of sixteen years, assault with intent to kill, arson, robbery and larceny are found in various sections of Title 18. See 18 U.S.C. §§ 1111, 1112, 2032, 113, 81, 2111 and 661, respectively."); Accord, Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968). Likewise, other courts have merely treated the proposition that 18 U.S.C. § 661 delineates a federal crime of larceny as an accepted tenet and proceeded to deal with related issues. See e. g., United States v. Belt, 516 F.2d 873 (8th Cir. 1975), Cert. denied, 423 U.S. 1056, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976) (whether larceny is a lesser included offense of the crime of robbery); United States v. Bryant, 454 F.2d 248 (4th Cir. 1972) (whether valuation of stolen goods need be proved by the government). However, there is a line of cases which specifically holds that larceny is defined by 18 U.S.C. § 661. Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974) ("Larceny is one such offense and it is defined by 18 U.S.C. § 661 . . . ."); England v. United States, 174 F.2d 466, 468 (5th Cir. 1949); Dunaway v. United States, 170 F.2d 11, 12 (10th Cir. 1948); United States v. Gilbert, 378 F.Supp. 82, 90 (W.D.S.D.1974) ("Title 18, U.S.C. § 661 specifically defines the federal version of larceny, and there is no reason to substitute a common law definition, even assuming that the common law definition may be slightly different.")

We conclude that 18 U.S.C. § 661 does define and punish a federal crime of larceny given the language of the statute and its legislative history. 18 U.S.C. § 661 was properly utilized below in conjunction with 18 U.S.C. § 1153. Resort to the state statute was unnecessary. 8

B. Is "larceny", as the term is used in 18 U.S.C. § 1153, limited to its common law...

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