U.S. v. Shoels

• Citation: 685 F.2d 379
• Decision Date: 11 August 1982
• Docket Number: No. 81-1748,81-1748
• Parties: 11 Fed. R. Evid. Serv. 340 UNITED STATES of America, Plaintiff-Appellee, v. Samuel Keith SHOELS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 379

685 F.2d 379

11 Fed. R. Evid. Serv. 340

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Keith SHOELS, Defendant-Appellant.

No. 81-1748.

United States Court of Appeals, Tenth Circuit.

Aug. 11, 1982.

Vicki Mandell-King, Asst. Fed. Public Defender, Denver, Colo. (Michael G. Katz, Fed. Public Defender, Denver, Colo., with her on the brief), for defendant-appellant.

Bruce F. Black, Asst. U. S. Atty., D. Colo. (Joseph F. Dolan, U. S. Atty., and Carole C. Dominguin, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, DOYLE and LOGAN, Circuit Judges.

SETH, Chief Judge.

The appellant, Samuel K. Shoels, appeals his conviction under 18 U.S.C. § 2113(b) for unlawfully taking away with the intention of stealing money or other things of value from the Majestic Savings and Loan Association. On appeal he claims that § 2113(b) does not include the crime of obtaining property by false pretenses, thus warranting reversal. In addition he claims several trial errors.

The facts leading up to the appellant's indictment and conviction are as follows. On July 2, 1980 a man identifying himself as Irving Butler presented a personal check payable to himself drawn on the account of Edward Leroy Reynolds for $1,200. The bank teller explained that the bank had a $500 cash limit on withdrawals, but she could give him $500 in cash and a $700 courtesy check or a courtesy check for $1,200. Before disbursing any funds or checks the teller determined that there were sufficient funds in the account of Irving Butler to cover the check. Therefore, she made out a courtesy check to "Irving Butler" for $1,200 and told the person who had so identified himself that the check could be cashed at the University National Bank.

The next day the individual returned to the Majestic Savings and Loan and told Julia Eyster, a teller, that he was unable to cash the $1,200 courtesy check because he did not have a Colorado driver's license although he had other picture identification. After an examination of the identification she gave him $500 in cash and issued a courtesy check for $700.

At the trial Edward Leroy Reynolds testified that he had never written a check to an Irving Butler for $1,200. He testified that he had met the defendant, Mr. Shoels, when he sold his Lincoln Continental to him. Mr. Shoels had paid part in cash when he took possession of the car, and the balance was paid later. The same day that defendant Shoels completed payment on the car, Mr. Reynolds' home was burglarized. Mr. Reynolds testified that he returned home at midnight that night when he saw the car he had sold parked on the street. He entered the house and found furniture overturned and ripped. He saw a figure who looked like Samuel Shoels get into the car and drive away.

Irving Butler testified that he had a savings account with the Majestic Savings and Loan Association, but that he had never received a check for $1,200 from Mr. Reynolds.

At trial teller Julia Eyster testified that she had picked the defendant from a photographic display, but that she could not recognize the individual if she were to see him again. The branch manager, Della Perez, testified that she had seen defendant Shoels in the branch office on July 3. She had chosen the defendant from a photographic display and she also made an in-court identification of the defendant.

The appellant claims that the activity for which he was convicted constituted the crime of obtaining property by false pretenses, and this was not encompassed within the term "to steal or purloin" as used in 18 U.S.C. § 2113(b). Three circuits have agreed with this narrow construction of § 2113(b), finding that the legislative history of the statute requires that its application be limited to common law larceny. See United States v. Feroni, 655 F.2d 707 (6th Cir.); LeMasters v. United States, 378 F.2d 262 (9th Cir.); United States v. Rogers, 289 F.2d 433 (4th Cir.). Obtaining money or property by false pretenses is generally considered to have several elements. These include the false representation by one who knows it to be false and made with the intent to cause the victim to part with title to certain property, and the victim so passes title to the person charged. The title aspect is a factor to be considered in the context of this case. However, the possession versus title distinctions have not proved to be of great assistance. The familiar crime of "larceny by trick" is within the general definition of larceny and is still no more than a form of larceny; that is, the trespassory taking of personal property with the intent to take it away permanently from the owner.

We must also observe that the legislative history of this act is indeed sparse and not really helpful. Resort in several of the opinions is to material which cannot be considered legislative history in the usual sense.

A narrow construction has been rejected by four circuits. See United States v. Bell, 678 F.2d 547 (5th Cir.) 1982 en banc; United States v. Simmons, 679 F.2d 1042 (3d Cir.), 1982; 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; United States v. Fistel, 460 F.2d 157 (2d Cir.). These courts have relied primarily upon United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430, where the Supreme Court construed the term "stolen" in an auto theft case. The Court there held that "stolen" as used in 18 U.S.C. § 2312 included all felonious takings with the intent to deprive the owner of ownership regardless of whether or not the theft constituted common law larceny.

In Hite v. United States, 168 F.2d 973 (10th Cir.), this court interpreted the word "stolen" as used in the National Motor Vehicle Theft Act, 18 U.S.C. § 408. In that case the defendants purchased an automobile by using aliases. They gave back a mortgage to secure the unpaid balance. Later they represented themselves as two other people and purchased another car. They transferred the first automobile to the car dealer and executed a note for the balance. This sale was induced by a misrepresentation of their bankbook balance. Later they exchanged the second car for a third. In determining whether the National Motor Vehicle Theft Act was limited to just larceny we cited Loney v. United States, 151 F.2d 1, 4 (10th Cir.), for the proposition that the crime be a trespassory taking.

" 'Where a person intending to steal another's personal property obtains possession of it, although by or with the consent of the owner, by means of fraud or through a fraudulent trick or device, and feloniously converts it pursuant to such intent, the owner will be regarded as having retained constructive possession. Hence, in such cases the conversion constitutes a trespass.

" 'The foregoing rule is not applicable where the owner, although induced by fraud, intends to and does part voluntarily with his title to the property, as well as his possession thereof, not expecting the property to be returned to him or to be disposed of in accordance with his directions.' " Hite v. United States, 168 F.2d 973, 975 (10th Cir.).

In Hite this court determined that the word "steal" imports the common law offense of larceny. Thus, since the defendants received title to the automobiles (despite the mortgages), the cars were not "stolen" under the statute. In United States v. Turley the Supreme Court rejected that analysis and found that the term "steal" in the Motor Vehicle Theft Act should not be limited to common law larceny. Thus, under Turley, the facts in Hite would constitute a violation of § 408.

A review of the cases and the statute requires us to follow the broader construction of § 2113(b) to include the act here charged within the term to "steal." Section 2113(b) prohibits the "tak(ing) and carr(ying) away, with intent to steal or purloin, any property or money or any other thing of value ... in the care, custody, control, management, or possession of any bank, or any savings and loan association." The term "steal" has no accepted common law meaning. United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 399, 1 L.Ed.2d 430. In determining the meaning of "stolen" Turley, at 412-13, 77 S.Ct. at 400, states that:

" '(S)tolen' 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."

We have considered the purpose of the statute and the little available legislative history in determining the definition of "steal." As mentioned, the legislative history of § 2113(b) does not provide a clear indication as to how "steal or purloin" is to be defined. Compare United States v. Simmons, 679 F.2d 1042, (3d Cir.), and LeMasters v. United States, 378 F.2d 262 (9th Cir.).

However, Congress employed the term "steal or purloin" and not the common law term "larceny" in describing the proscribed conduct, and this is the best indication of the scope of the act. An examination of cases construing other federal statutes using the term "steal" reveals that it is usually given a meaning broader than common law larceny. See United States v. Long Cove Seafood, Inc., 582 F.2d 159 (2d Cir.); Lyda v. United States, 279 F.2d 461 (5th Cir.); Edwards v. Bromberg, 232 F.2d 107 (5th Cir.); United States v. Handler, 142 F.2d 351 (2d Cir.); Crabb v. Zerbst, 99 F.2d 562 (5th Cir.). Since the statute is not framed in terms of "larceny" and the term is not used, it should not be restricted to technical common law larceny by trick or otherwise. This interpretation is consistent with the purpose of the statute. Drawing distinctions between larceny and false pretenses as is usually done on possession versus title is not helpful when neither...