U.S. v. Monasterski, 77-5166

• Citation: 567 F.2d 677
• Decision Date: 13 December 1977
• Docket Number: No. 77-5166,77-5166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Walter MONASTERSKI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 677

567 F.2d 677

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Walter MONASTERSKI, Defendant-Appellant.

No. 77-5166.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 11, 1977.

Decided Dec. 13, 1977.

Carl Ziemba, Detroit, Mich., for defendant-appellant.

Philip M. Van Dam, U. S. Atty., Gordon S. Gold, Detroit, Mich., for plaintiff-appellee.

Before CELEBREZZE and PECK, Circuit Judges, and WALINSKI, ^* District Judge.

CELEBREZZE, Circuit Judge.

Appellant, Raymond Walter Monasterski, was found guilty by a jury of possessing goods stolen from an interstate shipment, knowing them to have been stolen, in violation of 18 U.S.C. § 659. Appellant raises four substantial issues in this appeal, including whether the goods in question had lost their status as stolen goods, thus barring Appellant's conviction for possession of stolen goods. We reverse Appellant's conviction on the basis of our disposition of this issue, making it unnecessary to reach the other issues.

In the early morning hours of June 17, 1976, Rodney Szpytek (age 15), David Fusto (age 16) and Greg Ploshehanski (age 18) met with James "Cold Boy" Logan (age 35) in a Detroit restaurant. There it was planned that the three youths would steal some tires from a Conrail boxcar in a nearby railroad yard. Logan left these boys to their own devices and within hours they had managed to carry thirty Firestone tires out of the boxcar and under a fence surrounding the railroad yard. Before they could get much farther their scheme was foiled when they were apprehended by Conrail police. The Conrail police then called the FBI, whose agents arrived on the scene shortly thereafter. Desirous of catching the intended outlet or "fence" for the stolen tires, the Conrail police and FBI agents talked the three young thieves into following through on their intended disposition of the tires. The youths cooperated fully in this scheme which was modeled after events they said would have occurred but for their arrests.

The Conrail police placed identifying marks on all the purloined tires and loaded twenty of them into a van they had supplied. The other ten tires were loaded into Ploshehanski's car. A Conrail police officer then drove the loaded van to a Detroit park, accompanied by the others in Ploshehanski's vehicle. The three youths left the park at the police's direction and delivered the carload of ten tires to the nearby home of Logan and placed them in his basement. Logan had helped plan the theft so he knew what was transpiring except for being totally unaware that the thieves had been caught and were then acting under police orders and were even under police surveillance. The youths returned to the van in the park, picked up another load of ten tires and delivered them to Logan's home. Upon arriving at Logan's home, they found Logan about to leave in his own car. Szpytek joined Logan, who had loaded seven of the initial delivery of tires into his car while the second load was en route. Logan and Szpytek drove to the home of Appellant, whom they knew as "Cadillac Ray." Fusto and Ploshehanski followed with the second load of ten tires in Ploshehanski's car.

Logan testified at trial that Appellant had been his outlet for stolen tires before ¹ and that he had called Appellant on the morning of this theft to arrange delivery of this batch. Logan said that Appellant told him, at least initially, that he did not want this load of tires and that he was getting out of the "business." Nevertheless, Logan got the impression by the end of the conversation that Appellant would try to dispose of the tires and the initial delivery of seventeen tires was made to Appellant's home.

Fusto and Ploshehanski testified in substance that upon arrival with the first seventeen tires Appellant told Logan that he (Appellant) would "take care" of the tires and that Appellant told Logan not to worry about the money if Appellant was not home when the second load was delivered. Appellant testified that upon arrival of the first batch he told Logan and Szpytek that he did not want the tires and that they were left at his home over his objection. This testimony was corroborated by Appellant's daughter-in-law who lived with him. The final delivery of the remaining thirteen tires was made later the same morning, June 17, when Appellant was not home. All the tires were placed in a shed adjacent to Appellant's home. Both deliveries were made under the watchful eye of the Conrail police and FBI agents.

On the afternoon of June 17, FBI agents obtained and executed a search warrant, seizing the tires from Appellant's shed and arresting him. Appellant's indictment and trial followed in due course. Logan was arrested the same day and later pled guilty to possession of stolen goods. The record does not indicate that any criminal or juvenile court charges were ever brought against Szpytek, Fusto, or Ploshehanski. ²

Appellant argues that these largely uncontested facts compel reversal of his conviction. His reasoning is that the tires in question had lost their status as stolen goods when they were recovered by the Conrail police, thus precluding conviction for possession of stolen goods. We agree.

Appellant was convicted of violating the following portion of 18 U.S.C. § 659:

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.

The phrase "such goods or chattels" refers to the preceding paragraph of § 659, which condemns in pertinent part:

Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any . . . railroad car, . . . 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 . . . shipment of freight, express, or other property . . . .

Under the plain terms of the relevant portion of this statute, one can be convicted only if the Government proves beyond a reasonable doubt that, inter alia, the defendant bought, received or possessed stolen goods or chattels.

The rule that one cannot be convicted of receiving stolen goods if, before the stolen goods reached the would-be receiver, the goods had been recovered by their owner or his agent had its genesis in two nineteenth century English cases. Regina v. Schmidt, L.R. 1 Cr.Cas.Res. 15 (1866); Regina v. Dolan, 29 Eng.Law & Eq. 533 (1855).

The rule in Schmidt and Dolan has been almost universally adopted by the state courts in this country presented with the same question. ³ A leading early state court case on point is People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). In Jaffe, the New York Court of Appeals considered whether one could be convicted of an attempt to receive stolen goods when the goods in question had been restored to their owner and actually delivered to the defendant by their owner. The Court held that the attempt conviction was bad because the underlying offense of receiving stolen goods was impossible since the goods had been recovered by their owner. The Court noted that the defendant had the requisite criminal intent but that he could not know the goods were stolen, as required by the statute, since, in fact, they were not stolen. The Court added that the reprehensible nature of one's actions is irrelevant in a criminal case if one has not done the act forbidden by the law.

The earliest apposite reported federal case our research has uncovered is United States v. DeBare, 25 F.Cas. 796 (No. 14,935) (D.C.E.D.Wis.1875). In DeBare, postage stamps had been stolen by a thief who intended to purvey them to the defendant. The thief was caught, however, and the stamps returned to the local postmaster. Pursuant to a scheme not unlike that in the instant case, the stamps were subsequently sent along to the defendant, who was charged with receiving stolen goods. The District Court noted that the defendant's mens rea was precisely that required for conviction under the statute but held that the defendant had not committed the forbidden act. Under the authority of Schmidt and Dolan, the Court held that the recovered stamps had lost their status as stolen goods and thus could not support a conviction.

We have found three federal appellate cases on point, each from the Third Circuit and each recognizing the validity of the above stated rule. The first case is Copertino v. United States, 256 F. 519 (3d Cir. 1919). In Copertino, railroad police discovered the theft of certain goods and found where they were hidden. They did not actually seize the goods, however, but rather one officer surveilled the goods while another sought assistance. While merely watching the goods from a distance, the officer observed the defendant loading the contraband into his automobile. The defendant urged upon the Court the rule laid down in Schmidt, Dolan, Jaffe and DeBare. While the Court "readily concede(d) that the principle invoked is a sound one," id. at 521, it found the principle to be of no help to the defendant. The missing element for invoking the rule was actual or constructive possession of the stolen goods by the owner or his agent. The mere surveillance of the goods did not constitute actual or constructive possession by the owner or his agent so the rule did not apply.

United States v. Cohen, 274 F. 596 (3d Cir. 1921), is often cited as a leading case in the more modern history of the rule. The facts of Cohen, legally indistinguishable from this cause, involved a case of goods which had been diverted from its proper course and readdressed so that it would be delivered to the defendant. A suspicious employee of the carrier, however, turned the case...