U.S. v. Parker

Decision Date26 December 1984
Docket NumberNo. 83-8886,83-8886
Citation749 F.2d 628
Parties17 Fed. R. Evid. Serv. 1364 UNITED STATES of America, Plaintiff-Appellee, v. Charles David PARKER a/k/a Ramp Parker, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

William T. Moore, Jr., Savannah, Ga., for defendant-appellant.

Arthur W. Leach, Asst. U.S. Atty., Savannah, Ga., Margaret I. Miller, Patty Stemler, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

The principal issue in this case is whether to convict under 18 U.S.C.A. Sec. 659, which makes it a crime to steal from interstate or foreign carrier shipments, the evidence must show the goods were stolen from one of the places enumerated in the statute. The issue is presented both on a challenge to the sufficiency of the evidence to sustain this conviction, and on appeal from the denial of a requested jury instruction. Although other circuits are divided on the point, we hold that it is sufficient to prove that the goods were stolen from an interstate shipment without specific evidence that they were taken from a place or facility enumerated in the statute. We affirm, there being no error in the other points on appeal: the admission of evidence under the business records exception, the admission of testimony under the Fed.R.Evid. 803(24) exception to hearsay, and the effect of government counsel's conduct on a fair trial.

Charles David Parker was convicted of possessing cases of Scotch whiskey knowing them to have been stolen from a foreign shipment in violation of 18 U.S.C.A. Sec. 659. Briefly, the evidence supports these facts: David Hayes, a special agent for the United States Customs Service, was notified that a shipment of 905 cases of Scotch whiskey had been stolen while in route from Dewar's distillery in Scotland to Atlanta, Georgia, by way of the port of Savannah. Agent Hayes recovered 15 cases of the stolen Scotch from a tool shed attached to a garage owned by Donald Bracewell, a liquor store owner in Dublin, Georgia. Defendant Parker had sold Bracewell 30 cases of Scotch, including the 15 cases seized by the agents. Parker told Bracewell that he had been given the liquor by a man who owed him money.

Donald Ray Sheffield, after informing agents that he had information concerning the sale of large quantities of Scotch, assisted the Government in investigating the theft of the whiskey by purchasing Scotch from the defendant Parker. Sheffield drove a truck to Parker's house, left his truck behind the house, and got into Parker's truck as requested by Parker. Sheffield and Parker drove down a dirt road while one of Parker's assistants drove Sheffield's truck in another direction. Shortly thereafter, Parker drove Sheffield back to the house. There were 15 cases of Dewar's Scotch in the bed of Sheffield's truck. Sheffield paid Parker $550 for the whiskey. Parker told Sheffield that the Scotch had "come off a big truck from Savannah." The bottles of Scotch purchased from Parker were coded indicating they were part of the foreign shipment that was stolen.

Parker argues that the evidence was insufficient to sustain his conviction because the Government did not prove the goods had been stolen from one of the specific places enumerated in the statute. There was sufficient evidence to prove that Parker had possession of the Scotch and knew the Scotch he sold was stolen, but there is no evidence to show precisely from where the Scotch was stolen or that Parker knew the place of the theft. There was sufficient evidence to prove the Scotch was stolen while in route from Scotland to Atlanta.

The statute makes it a crime to steal from

[a]ny 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 ... goods ... which are a part of or which constitute an interstate or foreign shipment of freight, express, or other property....

18 U.S.C.A. Sec. 659. It also makes it a crime for one to possess such goods "knowing" them to have been stolen. Id. The circuit courts are divided on whether it is necessary to prove that the goods were stolen from one of the enumerated places or facilities. The Second, Sixth, Seventh, Eighth, and Ninth Circuits, interpreting the statute broadly, do not require such proof. United States v. Padilla, 374 F.2d 782, 784 (2d Cir.1967) (holding that defendant's theft or unlawful taking under Sec. 659 was complete when slacks were removed from the carton in the body of the truck and reduced to his possession and control in the cab of the truck); United States v. De Fina, 315 F.2d 362, 363 (2d Cir.), cert. denied, 375 U.S. 820, 84 S.Ct. 58, 11 L.Ed.2d 54 (1963) (holding that the theft from "wooden pallets" rather than from wharf was within the statutory compass and any other interpretation would frustrate the intention of Congress); United States v. Williams, 545 F.2d 1036, 1039 (6th Cir.1976) (holding that the indictment is not fatally defective if it fails to enumerate one of the statutory facilities or instrumentalities); United States v. Parent, 484 F.2d 726, 729 (7th Cir.1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974) (holding as to the interstate nature of the goods that "[t]he statute serves an important role in protecting interstate commerce; therefore, 'we must ... be mindful that Congress has here undertaken to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions' ") (quoting United States v. Berger, 338 F.2d 485, 487 (2d Cir.1964), cert. denied, 380 U.S. 923, 85 S.Ct. 925, 13 L.Ed.2d 809 (1965)); United States v. Dandridge, 437 F.2d 1324, 1328 (7th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971) (holding that circumstantial evidence including possession and other established attendant circumstances were sufficient proof in absence of direct proof); United States v. Henneberry, 719 F.2d 941, 945 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1612, 80 L.Ed.2d 141 (1984) (holding "[f]or a conviction under 18 U.S.C. Sec. 659 the government must prove (1) that the chattels were stolen, (2) that they had a value in excess of $100, (3) that defendants had possession of the chattels, (4) that possession was with knowledge that the chattels were stolen, and (5) that the chattels were part of an interstate shipment"); United States v. Cousins, 427 F.2d 382, 384-85 (9th Cir.1970) (holding in a case addressing the interstate nature of the goods that "[s]ection 659 has as its obvious purpose the protection and promotion of goods in interstate commerce and 'this undertaking is not to be hampered by technical legal conceptions' ") (citing Berger, 338 F.2d at 487); Dunson v. United States, 404 F.2d 447, 449 (9th Cir.1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 925, 21 L.Ed.2d 808 (1969) (holding that the indictment need not identify the particular facility involved and that the involvement of one interstate freight facility rather than another is not an element of the offense).

The First and Third Circuits construe the statute narrowly and would require such proof. United States v. Mello, 469 F.2d 356, 358 n. 4 (1st Cir.1972) (holding one of the three requisite elements necessary in Sec. 659 is "the fact that the goods were stolen from one of the places enumerated in the statute"); United States v. Allegrucci, 299 F.2d 811, 812 (3d Cir.1962), cert. denied, 372 U.S. 954, 83 S.Ct. 950, 9 L.Ed.2d 978 (1963) (holding that "[t]he statute is a technical one and requires the Government to prove the allegation that the goods were stolen from one of various enumerated places"); United States v. Olivo, 278 F.2d 415, 417 (3d Cir.1960) (where appellant contended that Sec. 659 "applies only to thefts from specifically designated places along the interstate commerce route (including depots), the government concedes that it is accurate, as it must"); United States v. Manuszak, 234 F.2d 421, 423 (3d Cir.1956) (holding that under Sec. 659, "it is not a federal crime to steal goods from an interstate shipment of freight unless the goods are taken from one of the specifically enumerated places or facilities").

Without deciding the evidence question, this Circuit has held that an indictment under 18 U.S.C.A. Sec. 659 that is otherwise sufficient will not be "rendered insufficient merely because it fails to specify the instrumentality of interstate commerce from which the goods or chattels were stolen or embezzled." United States v. Richardson, 694 F.2d 251, 253 (11th Cir.1982). The Richardson court reasoned that

[t]he enumeration of carriers is not a limitation on the scope of the statute--section 659 covers virtually every mode of transportation--so the allegation of an 'interstate shipment of freight' necessarily encompasses acquisition from one of the enumerated instrumentalities.

Id. It then observed in a footnote that in view of the resolution of the question "we need not decide whether acquisition from an enumerated instrumentality is an essential element of the offense described by Sec. 659." Id. at 253 n. 3.

Although this Circuit has not addressed the precise question of acquisition from an enumerated instrumentality, this Court has previously interpreted Sec. 659 broadly in the context of other issues. In United States v. Green, 446 F.2d 1169 (5th Cir.1971), this Court stated that the broad purpose for 18 U.S.C.A. Sec. 659 is to protect interstate shipments. In rejecting a literal reading of the statute, the Green court observed that "while penal statutes are to be strictly construed, the courts are not required to abandon common...

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