United States v. Bunch, Crim. No. K-74-0754.

• Decision Date: 02 September 1975
• Docket Number: Crim. No. K-74-0754.
• Citation: 399 F. Supp. 1156
• Parties: UNITED STATES of America v. Tommy Curtis BUNCH.
• Court: U.S. District Court — District of Maryland

399 F. Supp. 1156

UNITED STATES of America v. Tommy Curtis BUNCH.

Crim. No. K-74-0754.

United States District Court, D. Maryland.

September 2, 1975.

Jervis S. Finney, U. S. Atty., Leonard M. Linton, Jr., Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Charles G. Bernstein, Federal Public Defender, Gerald M. Richman, Asst. Federal Public Defender, Baltimore Md., for defendant.

FRANK A. KAUFMAN, District Judge.

The indictment in this case reads as follows:

The Grand Jury for the District of Maryland charges:

On or about the 25th day of September, 1974, in the State and District of Maryland,

TOMMY CURTIS BUNCH

did transport and cause to be transported in interstate commerce a stolen motor vehicle, that is, a 1972 Mercury Capri, vehicle identification number GAECLU 98408, from Kingsport, Tennessee, to Mt. Airy, Maryland, and he then knew the said motor vehicle to have been stolen.

18 U.S.C. §§ 2312 & 2

COUNT TWO

And the Grand Jury for the District of Maryland further charges

On or about the 25th day of September, 1974, in the State and District of Maryland

TOMMY CURTIS BUNCH

did conceal and store a motor vehicle, that is, a 1972 Mercury Capri, vehicle identification number GAECLU 98408, which had moved as interstate commerce between Kingsport, Tennessee, and Mt. Airy, Maryland, and the defendant then knew the vehicle to have been stolen.

18 U.S.C. §§ 2313 & 2.

18 U.S.C. § 2312 provides:

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. § 2313 provides:

Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

After a non-jury trial this Court found the defendant guilty beyond a reasonable doubt, for reasons which can be summarized as follows:

Defendant and another person identified only as "the Mexican" or "Chico" or "Poncho" drove on September 25, 1974 the car in question from Kingsport, Tennessee to Mt. Airy, Maryland. As part of the arrangement with the owner of the car, one Ramey, defendant and the Mexican were given the car by Ramey, together with $15.00 to pay for gasoline and oil, so that the defendant and the Mexican could drive the car to Maryland and there dispose of it. That arrangement was made on September 25, 1974 after defendant and the Mexican, who were in the process of hitchhiking from Tennessee to Maryland, were picked up by Ramey on a road southwest of Kingsport. Ramey was then driving alone in the direction of Kingsport, apparently in a car other than the 1972 Mercury Capri mentioned in the indictment. The agreement itself among Ramey, Bunch and the Mexican was made while Ramey was driving the two hitch-hikers to Kingsport. After the three reached Kingsport, the Capri, which was then parked at a location in Kingsport, was turned over to defendant and the Mexican by Ramey who told them en route to Kingsport that he (Ramey) was in default in connection with, and could not afford to make payments which he (Ramey) was required to make upon, his indebtedness to a Kingsport bank which had made a loan to Ramey on August 12, 1974 to enable Ramey to purchase the Capri and which bank held a security interest in the car in connection with that loan. That security interest was given to that bank pursuant to a financing agreement entered into by Ramey when Ramey acquired the car on August 12, 1974. $1487.30 was owed by Ramey on September 25, 1974 in connection with that loan. On September 26, 1974, Ramey paid $61.70 to the bank (the Tri-City Bank & Trust of Blountville, Tennessee) on account of the indebtedness secured by the car. That was Ramey's first repayment to the bank. Thereafter, Ramey collected $1425.60 from the insurance company which provided theft coverage with respect to the Capri and paid off in full the loan from the bank.

Some time after September 25, 1974 the vehicle was discovered by the Maryland police, as the result of an anonymous tip, sitting sideways on blocks in a small garage at the residence of relatives of Bunch near Mt. Airy, Maryland, with its radio, tires, license plates, and transmission missing. Bunch and the Mexican had left it there after being unable to dispose of it because of lack of appropriate title documents and after partially dismantling it and selling certain of its parts, including its transmission, in Baltimore.

In making its findings this Court found at the end of the trial and continues to find highly incredible the testimony of Ramey and certain of his relatives with regard to the alleged theft of the Capri from in front of the home of Ramey's sister during the late evening or early morning of September 25, 1974. Accordingly, this Court rejected and continues to reject the primary position and contention of the prosecution, i. e., that the defendant stole the car during the night while it was parked in front of the residence of Ramey's sister. On a secondary basis, however, the Government takes the position that the Capri was stolen, if not from Ramey, then from the bank, citing in support, United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L. Ed.2d 430 (1957). Therein, over a vigorous dissent by Mr. Justice Frankfurter, joined by Messrs. Justices Black and Douglas, a six-to-three majority of the Supreme Court held that the word "stolen" as used in 18 U.S.C. § 2312, includes an embezzlement or other felonious taking of a motor vehicle with intent to deprive the legal owner of his rights in and to the vehicle. In Turley, the defendant, after originally having been given possession of the car by its owner to drive only in South Carolina, transported it to Maryland and sold it in Maryland. This Court's dismissal of the indictment, which was appealed directly to the Supreme Court pursuant to 18 U.S.C. § 3731, was reversed by the Supreme Court. Writing for the majority, Mr. Justice Burton, after noting (at 412, 77 S.Ct. at 399) that "expanded through the years, it the word "steal" became the generic designation for dishonest acquisition * * *", and after acknowledging (at 413, 77 S.Ct. 397) the requirement strictly to construe a criminal statute, and after commenting (at 413, 77 S.Ct. 397) upon the automobile's unique suitability for the speedy, often-undetected theft of "a valuable, salable article", and (at 413-414, 77 S.Ct. 397) upon the need to combat such theft by the passage of federal legislation of which the statutory provisions involved in this case, namely, sections 2312 and 2313, are part, and after specifically referring to the fact, (at 414, 77 S.Ct. at 401) that the congressional aim in enacting such legislation was related to "the increasing cost of automobile theft insurance", concluded (at 416-17, 77 S. Ct. at 402):

* * * an automobile is no less "stolen" because it is rented, transported interstate, and sold without the permission of the owner (embezzlement). The same is true where an automobile is purchased with a worthless check, transported interstate, and sold (false pretenses). Professional thieves resort to innumerable forms of theft and Congress presumably sought to meet the need for federal action effectively rather than to leave loopholes for wholesale evasion.

We conclude that the Act requires an interpretation of "stolen" which does not limit it to situations which at common law would be considered larceny. The refinements of that crime are not related to the primary congressional purpose of eliminating the interstate traffic in unlawfully obtained motor vehicles. The Government's interpretation is neither unclear nor vague. "Stolen" as used in 18 U.S.C. § 2312, 18 U.S.C.A. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.

Footnotes omitted.¹

See also United States v. Dillinger, 341 F.2d 696, 697 (4th Cir. 1965) (Haynsworth, J.); Boone v. United States, 235 F.2d 939, 940-41 (4th Cir. 1956).²

Pursuant to the broad rationale of the Turley majority, section 2312 has been construed in Freije v. United States, 408 F.2d 100, 105 (1st Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 129, 24 L.Ed.2d 111 (1969), to proscribe the interstate transportation of an automobile purchased by a buyer "without intent to meet the payments" for the same. And in Boone v. United States, supra, section 2312 has been held to cover a purchase of a motor vehicle by a defendant who knowingly tendered a worthless check in payment of the purchase price of such vehicle. See also United States v. Durham, 319 F.2d 590, 592 n.2 (4th Cir. 1963), in which an automobile obtained by means of a "bogus check" was deemed stolen within the meaning of section 2312.

Similarly, section 2312 has been construed in United States v. Ellis, 428 F.2d 818 (8th Cir. 1970), as covering the retention of a rented vehicle beyond the date on which said vehicle was due to be returned, in a case in which the original possession of the vehicle was obtained by means of a stolen credit card. Further, that section has been applied to defendants in United States v. Bruton, 414 F.2d 905, 908-09 (8th Cir. 1969), who rented a car on a borrowed credit card with knowledge that they could not return the vehicle within the terms of the rental contract. That section has also been construed to cover a defendant who may have initially intended to return a rental vehicle but who later developed the intent to steal and not to return the same before it was transported in interstate commerce. United States v. Welborn, 322 F.2d 910, 912 (4th Cir. 1963).³

Summarizing the scope of section 2312's application in Webb v. United States, 369...