U.S. v. Mavrick

• Citation: 601 F.2d 921
• Decision Date: 29 June 1979
• Docket Number: No. 78-2226,78-2226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony MAVRICK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 921

601 F.2d 921

UNITED STATES of America, Plaintiff-Appellee, v. Anthony MAVRICK, Defendant-Appellant.

No. 78-2226.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 1979.

Decided June 29, 1979.

Steven M. Levin, Allan A. Ackerman, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Dennis Fisher, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and WOOD, Circuit Judges, and JAMESON, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

The defendant, Anthony Mavrick, appeals from his conviction on one count of possessing goods stolen from an interstate shipment, knowing the goods to have been stolen, in violation of 18 U.S.C. § 659. We affirm.

I.

The defendant and Chester Garelli were policemen for the Chicago and Western Indiana Railroad (C & WI). On the night of March 13-14, 1978, they were assigned to normal routine patrol out of the 59th Street tower in Chicago, Illinois. Routine patrol entails covering the railroad properties, preventing thefts, and recovering merchandise found on railroad property and returning it to the proper carrier, as well as any other duties incident to police work. A patrol assigned to the 59th Street tower would normally cover an area approximately from 21st Street to 74th Street.

The government's evidence of the events of that night showed that the defendant and Garelli violated an express order that at least one of them stay at the 59th Street tower to handle the mail. Instead they went to a parking ramp at 26th Street being used by the Missouri Pacific Railroad (MoPac) and there broke into MoPac tractor trailers. Later, they picked up the merchandise taken from the trailers and loaded it into their C & WI patrol car. Most of these activities were observed by a MoPac policeman who had been assigned to watch the parking ramp because of recent thefts there. Although the MoPac policeman and another MoPac officer attempted to follow the C & WI vehicle, they were unable to do so. The policemen then contacted the FBI.

The MoPac police later found Mavrick and Garelli and followed their C & WI patrol car back to the 59th Street tower. There they saw the two in the tower parking lot transferring packages from the trunk of the patrol car to the trunks of their private automobiles. When the MoPac police drove up to make the arrest, either Mavrick or Garelli slammed the trunk of the patrol car shut. Packages recovered from the cars were determined to be those removed from the MoPac parking ramp and a search of the C & WI police car revealed a pair of bolt cutters which are not standard equipment for C & WI police and were not the property of the C & WI.

Mavrick's version of the events of that night is that Garelli and he were merely on routine patrol. They recovered property which they had discovered on the ground in the MoPac parking ramp. Since no police were at a nearby MoPac office, they returned with the merchandise to the 59th Street tower. He explained his failure to observe what the government's evidence indicated was the proper procedure for securing and reporting recovered merchandise, stating that he considered the tower unsafe because so many people had access to it and that he failed to report the theft or to turn the goods over to MoPac police because he had information that one of them was a thief. According to the defendant, he and his fellow officer were storing the packages in their private cars because they thought that was the most secure place to keep them until they could report them to reliable authorities. Thus, the gist of the defendant's defense was that he was merely securing the property pursuant to his normal duties as a policeman and that his possession of the stolen items was authorized, innocent, and in all respects lawful.

Mavrick and Garelli were charged with violating 18 U.S.C. § 659 in an indictment handed down on June 1, 1978. They retained the same attorney and pleaded not guilty. On July 20, the district court held a hearing to determine whether certain post-arrest statements which Garelli had made to law enforcement officers should be suppressed. After ruling that the statements were admissible, the court granted the defendants' motion to sever. Garelli withdrew his previous plea and pleaded guilty on August 4. The defendant's trial commenced on August 11 and concluded three days later in a jury verdict of guilty.

II.

The defendant's brief commences with an attack on the sufficiency of the indictment and the jury instructions which, he maintains, utterly deprived him of any opportunity to present his theory of defense to the jury. He maintains that he was merely securing the goods pursuant to his normal police duties and therefore lacked the intent to convert the goods to his own use a mental state which he argues is an essential element of the crime of possession of stolen goods. An analysis of his argument requires a rather detailed discussion of the crime as defined by the statute.

The statute under which Mavrick was charged provides in pertinent part:

Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any pipeline system, railroad car, wagon, motortruck, or other vehicle, or from any tank or storage facility, station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight, express, or other property; or

Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen . . .

Shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both; but if the amount or value of such money, baggage, goods or chattels does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

18 U.S.C. § 659. An examination of the statute reveals that the first two paragraphs of the statute define two distinct offenses. The first is essentially a theft offense punishing the unlawful taking of another's property. The second is a receiving and possession offense, a crime traditionally regarded as separate from theft. See United States v. Fusco, 398 F.2d 32, 36 (7th Cir. 1968). The defendant, however, relying on authorities construing the first paragraph ¹ maintains that an essential element of the second is the intent to convert to one's own use. ²

The first paragraph defining theft explicitly provides as an element of the crime the defendant's "intent to convert to his own use." This language is absent from the second paragraph, and therefore, according to principles of statutory construction, we would ordinarily regard the omission of this element to be deliberate on the part of Congress and not the result of mistake or inadvertence. Congress knew how to require as an essential element the mental state that the defendant would have us read into the statute and it failed to do so. Compare 18 U.S.C. § 659 P 2 With 18 U.S.C. § 641 P 2 (punishing "(w) hoever receives, conceals, or retains (government property) With intent to convert it for his use or gain, knowing it to have been embezzled, stolen, purloined or converted") (emphasis added). Thus, the prior decisions of this and other courts have rejected the argument that the intent to convert is an essential element of the possession crime charged here. See Applebaum v. United States, 274 F. 43 (7th Cir.), Cert. denied, 256 U.S. 704, 41 S.Ct. 625, 65 L.Ed. 1180 (1921); Bloch v. United States, 261 F. 321 (5th Cir. 1919), Cert. denied, 253 U.S. 484, 40 S.Ct. 481, 64 L.Ed. 1025 (1920); Nichamin v. United States, 263 F. 880 (6th Cir. 1920) (words in indictment charging intent to convert are mere surplusage). See also United States v. Zarattini, 552 F.2d 753, 760 (7th Cir.), Cert. denied, 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977) (crime requires only knowledge that the goods were stolen. Specific intent is not required under the statute).

Despite the seemingly clear language of the statute and the judicial opinions rejecting the plaintiff's contention, we must consider the policy of the law not to expand common law crimes and other crimes aimed at blameworthy behavior to punish innocent conduct. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Although the crimes of receiving or possessing stolen property were unknown at common law, legislative efforts to punish such conduct began as early as the 1600's in England, and virtually all American jurisdictions have defined this conduct as criminal. See W. LaFave & A. Scott, Criminal Law § 93 at 682-83 (1972). Conviction of a receiving or possession crime carries much of the moral stigma that attaches to the "infamous common-law crimes." Morissette, 342 U.S. at 252, 72 S.Ct. 240. Consequently, although most statutes punishing receiving or possessing stolen property knowing it to be stolen do not on their face contain any additional mental element, many courts have implied such a requirement. Thus, one authority states the general rule as follows:

It is not enough for guilt that one receives stolen property with knowledge that it is stolen. Otherwise, the policeman who catches a thief in possession of stolen property and who takes the booty from him in order to return it to its owner would be guilty. Some sort of a bad state of mind, in addition to the guilty knowledge, is required. This is so although this requirement is not generally spelled out in the statute defining the offense of receiving stolen property.

The necessary intent, as in the related crime of larceny, is an intent to deprive the owner of his property. The receiver's purpose is generally, of course, to deprive the owner...