United States v. Brandenburg

• Decision Date: 06 September 1944
• Docket Number: No. 8124.,8124.
• Parties: UNITED STATES v. BRANDENBURG.
• Court: U.S. Court of Appeals — Third Circuit

144 F.2d 656 (1944)

UNITED STATES v. BRANDENBURG.

No. 8124.

Circuit Court of Appeals, Third Circuit.

Reargued January 3, 1944.

Decided September 6, 1944.

Frederic M. P. Pearse, of Newark, N. J. (Samuel L. Hirschberg, of West New York, N.J., on the brief), for appellant.

Louis B. Schwartz, of Washington, D. C. (Thorn Lord, U. S. Atty., and Richard J. Hughes, Asst. U. S. Atty., both of Trenton, N. J., and Sheldon E. Bernstein and David Reich, Attys., Department of Justice, both of Washington, D. C., and Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee.

Before BIGGS, MARIS, JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.

BIGGS, Circuit Judge.

The defendant, Leopold William August Brandenburg, Jr., a physician, was convicted of misprision of felony.¹ The indictment charged that between May 28 and September 1, 1941, at Union City in the State of New Jersey, having knowledge of the actual commission of a felony cognizable by the courts of the United States, he wilfully and unlawfully concealed the commission of this felony and did not disclose and make it known to any person in civil authority under the United States. The felony, the commission of which it is charged that Brandenburg concealed, was the travel in interstate commerce of one Robert James Pitts from North Carolina to New Jersey with the intent to avoid prosecution by the State of North Carolina for "two burglaries" committed by him on May 16, 1941 in North Carolina.² The defendant was tried, was convicted and has appealed.

The facts disclosed by the record are as follows. On May 16, 1941, at about one o'clock in the morning Pitts and an accomplice broke into a three-story building used as a storehouse by C. A. Lowe & Sons, a wholesale grocery house in North Wilkesboro, North Carolina. They intended to blow open the safe with dynamite which they carried into the warehouse with them. The evidence shows that Pitts used an iron bar to break the combination lock in order that a charge of dynamite might be put into an opening in the walls of the safe. When the lock finally had been removed Pitts discovered that it had not broken properly with the spindle and the dynamite charge could not be used. Pitts and his accomplice then stole some goods and fled from the premises. Later in the morning Pitts and his companion broke into a gasoline station and stole tires. We are not concerned with the last mentioned offense since there is no substantial evidence that Brandenburg knew that Pitts had committed it. A few days later Pitts and his confederate visited Charlotte, North Carolina. Thereafter Pitts went to Hickory, North Carolina. He stayed there about a week and then traveled to Camden, New Jersey, by train. From Camden he went to Union City, New Jersey.

Pitts had just been released from Alcatraz. While he was in that prison he had a conversation with one Ludwig Schmidt who told him of the defendant. On arriving in Union City, Pitts went to see Brandenburg. Pitts testified that he had with him a newspaper clipping from the Charlotte (North Carolina) Observer describing his crime as burglary and indicating that he was sought for prosecution.³ Pitts testified that he showed this newspaper to Brandenburg. Pitts had a large scar on his right cheek. The defendant arranged for an operation for Pitts at a local hospital. The scar was reduced in area. Later, the defendant himself operated on Pitts' fingers and removed most of his finger prints. This operation was performed at the defendant's home. During Pitts' stay in New Jersey he was lodged at the hospital, at the defendant's house or with friends of the defendant. There can be no doubt that the evidence supports the conclusion that Brandenburg knew that Pitts had broken into the Lowe store and had attempted to dynamite the safe and that he knew also that Pitts had fled from North Carolina to avoid prosecution for this crime.

The purpose of the Fugitive Felon Act was stated by Congressman Sumners, Chairman of the Committee on the Judiciary of the House of Representatives, quoting the comments of the Attorney General of the United States on the bill as follows: "One of the most difficult problems which local law-enforcement agencies have to deal with today is the ease with which criminals are able to flee from the State to avoid prosecution * * *. The above bill is considered the most satisfactory solution of this problem, which the States have never been able to solve effectively. This bill will not prevent the States from obtaining extradition of roving criminals, but the complicated process of extradition has proved to be very inefficient. The ability of Federal officers to follow a criminal from one State to any other State or States, as provided in the above bill, should furnish the desired relief from this class of law evaders. * * *" Report No. 1458 of the House Committee on the Judiciary, to accompany S. 2253, May 3, 1934, 73rd Congress, 2nd Session. The same report shows that the word "burglary" and the other specific offenses named in the Act were substituted for the words "a felony" used in the original bill. The general purpose of the Act was to assist in the enforcement of state laws. Compare Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640.

The appellee takes the position, citing Benson v. McMahon, 127 U.S. 457, 464, 8 S.Ct. 1240, 32 L.Ed. 234,⁴ that Congress could not have had the common law offenses in mind when it named specific crimes in the Fugitive Felon Act. The appellant contends to the contrary. This court stated in United States v. Patton, 3 Cir., 120 F.2d 73, 75, "It is * * * well settled that when a federal statute uses a term known to the common law to designate a common law offense and does not define that term, courts called upon to construe it should apply the common law meaning," citing United States v. Palmer, 16 U.S. 610, 3 Wheat. 610, 4 L.Ed. 471; United States v. Armstrong, Fed.Cas.No.14,467; United States v. Outerbridge, Fed.Cas.No. 15,978; United States v. Coppersmith, C. C., 4 F. 198; United States v. Clark, D.C., 46 F. 633.⁵ If the appellant is correct in his contention, the principle which he asserts would be dispositive of the case at bar. The issue turns on the use of the clause "* * * under the laws of the place from which he flees, * * *". Does it modify the offenses named in the Fugitive Felon Act or does it modify the word "prosecution"? If the former, the offense of "burglary" must be defined under the law of the State from which the fugitive flees. If the latter, it is clear that the "burglary" denominated in the Act could be burglary only at common law since the offense is otherwise undefined in the statute. See the authorities just cited.

Cogent arguments can be made in support of both contentions. We shall discuss some of them. The congressional report from which we have quoted shows that the aim of the Act was to impose penalties on a "class of law evaders," viz., "roving criminals" who would be subject to extradition. But seven States do not denominate the offense of burglary as "burglary."⁶ New Jersey is an example. If an offender broke into the dwelling house of another in New Jersey in the nighttime with the intent to commit a felony therein and thereby committed "burglary" as that offense is defined at the common law,⁷ he would not be guilty of a crime designated as "burglary" under the law of New Jersey but would be guilty of a "high misdemeanor." If the phrase "under the laws of the place from which he flees" is deemed to modify the word "burglary" instead of the word "prosecution," an offender, who had committed in New Jersey (or in any of the other six States indicated in footnote 6) acts which would constitute common law burglary, would not be within the purview of the Fugitive Felon Act upon fleeing the State, even though he entered that "class of law evaders" which the congressional report refers to as "roving criminals" subject to extradition. A criminal, therefore, would escape the penalty of the Act simply because he had committed his offense in a State which did not make use of the word "burglary" in its statute. We think that such a result was not intended by Congress.

If the clause under consideration is deemed to modify the word "burglary," it may be contended also that any offense which any State denominates by the name of one of the crimes which appear in the Fugitive Felon Act is cognizable under that Act if the offender flees from the State. It would follow that by calling a traffic offense "burglary" a State could bring the fleeing offender within the purview of the federal statute. While it may be urged that the Fourteenth Amendment would prohibit a State from punishing a traffic offense as "burglary," the Fugitive Felon Act by its terms would embrace an offender fleeing to escape prosecution for such a crime. We cannot believe that this was the intention of Congress.

The appellee argues that the clause under discussion must modify the crimes named in the statute and insists that to interpret it as modifying the word "prosecution" is to lift the clause out of its context and to do violence to the fundamental grammatical rule that a phrase such as that under consideration modifies the nearest antecedent noun. This argument does not help the appellee for a clause modifies that antecedent which the draftsman intended it to modify. The determination of the question therefore turns on ascertaining the intention of Congress in this regard. As a matter of the use of language the phrase "under the laws of the place from which he flees" more aptly modifies the word "prosecution" than the word "burglary," because in legal parlance prosecutions are conducted under the law of a State or a place, while crimes are generally referred to as having been committed in violation of the law of a State or place. The congressional report makes it clear that Congress desired to aid the States in...