United States v. Fleetwood

• Decision Date: 29 April 1980
• Docket Number: Crim. No. 79-202.
• Citation: 489 F. Supp. 129
• Parties: UNITED STATES of America, Plaintiff, v. Jasper FLEETWOOD, Defendant.
• Court: U.S. District Court — District of Oregon

489 F. Supp. 129

UNITED STATES of America, Plaintiff, v. Jasper FLEETWOOD, Defendant.

Crim. No. 79-202.

United States District Court, D. Oregon.

April 29, 1980.

James Coon of Sobel & Coon, Portland Or., for defendant.

Asst. U. S. Attys. Peter Robinson and Ronald Hoevet, Portland, Or., for United States.

OPINION

FITZGERALD, District Judge.

Defendant Jasper Fleetwood was tried and convicted on three counts of violation of 18 U.S.C. § 641¹ for concealing and retaining stolen United States Savings Bonds and Freedom Share Notes.² He now moves for a judgment of acquittal contending: (1) prosecution was not brought within the applicable five year statute of limitations; and (2) the stolen Savings Bonds and Notes were not "a thing of value of the United States" within the meaning of 18 U.S.C. § 641.³ Fleetwood's motion presents important questions concerning the nature and scope of 18 U.S.C. § 641.

I. THE STATUTE OF LIMITATIONS

The statute of limitations for violations of 18 U.S.C. § 641 is five years.⁴ Evidence at trial revealed that Fleetwood was in possession of the bonds on March 31, 1979, and that the bonds were stolen during 1970. No evidence whatsoever was produced to show when he first received the bonds. Fleetwood, therefore, argues that the government has failed to carry its burden⁵ to prove that a crime was committed within the statute of limitations.

The government contends, however, that the crime charged is a continuing offense. If so, the statute of limitations would begin to run from March 31, 1979, the last day all elements of the offense were present. The government relies on von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 1958). In that case the defendant was charged with illegal possession of firearms. In rejecting his contention that the statute of limitations barred prosecution, the court observed:

It will be noted that the essence of the offense as charged in the counts of the indictment now under consideration is possession. Therefore it seems clear that the offense was a continuing one which began on the date the guns were received by von Eichelberger and continued to December 5, 1956, the date set forth in the indictment. Present possession of a firearm is prohibited. emphasis in original.

252 F.2d at 185.

Since von Eichelberger, the Ninth Circuit has continued to apply the continuing crime doctrine to crimes where the "essence of the offense" is possession. Cf. D'Argento v. United States, 353 F.2d 327, 335 (9th Cir. 1965), cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966) (18 U.S.C. § 659); See also United States v. Tyler, 466 F.2d 920, 923 (9th Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972).

Fleetwood argues that von Eichelberger, D'Argento, and Tyler all involved statutes other than section 641. He relies upon United States v. Mendoza, 122 F.Supp. 367 (N.D.Cal.1954). In Mendoza, which is precisely on point with the present case, the court held that section 641 was not a continuing offense. Additionally, Fleetwood relies upon the statutory rule of construction articulated in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970);

We have stated before "the principle that criminal limitations statutes are `to be liberally interpreted in favor of repose,' United States v. Scharton, 285 U.S. 518, 522 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932)." United States v. Habig, 390 U.S. 222, 227 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968). We have also said that "statutes of limitations normally begin to run when the crime is complete." Pendergast v. United States, 317 U.S. 412, 418 63 S.Ct. 268, 270, 87 L.Ed. 368 (1943); See United States v. Irvine, 98 U.S. 450, 452 25 L.Ed. 193 (1879). And Congress has declared a policy that the statute of limitations should not be extended "except as otherwise expressly provided by law." 18 U.S.C. § 3282. These principles indicate that the doctrine of continuing offenses should be applied only in limited circumstances since . . "the tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term." citations omitted.

Id. at 115, 90 S.Ct. at 860. Thus, defendant argues that the offenses enumerated in section 641 should not be deemed continuing.

The Toussie court, however, also went on to say:

These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.

Id. at 115, 90 S.Ct. at 860. As the von Eichelberger court indicated, the nature of a crime such as concealing and retaining stolen property, where possession is the essence of the offense, is such that Congress must have intended it be treated as a continuing offense. It should be noted as well that Mendoza was decided prior to von Eichelberger and the line of authorities following that case. I conclude that the offenses of which defendant was found guilty are continuing offenses involving illegal possession of property, and prosecution was not barred by the statute of limitations.

II. WHETHER THE SAVINGS BONDS WERE THE PROPERTY OF THE UNITED STATES

Section 641 of Title 18 of the United States Code is applicable only where the property at issue is "any record, voucher, money or thing of value of the United States . . . or any property made or being made under contract for the United States . . ." It is an essential element of a crime charged under this section that the government suffer some actual property loss.⁶ United States v. Collins, 464 F.2d 1163, 1165 (9th Cir. 1972). The critical question is whether the bonds in question, having been stolen from the possession of private citizens, still were possessed of sufficient indicia of federal ownership to satisfy that element of the offense. See United States v. Evans, 572 F.2d 455 (5th Cir. 1978).⁷

As observed in United States v. Johnson, 596 F.2d 842, 846 (9th Cir. 1979), "the decisions which have upheld convictions under § 641 have generally involved instances in which the government had either title to, possession of, or control over the tangible objects involved." See also United States v. Evans, supra; United States v. Farrell, 418 F.Supp. 308, 310-11 (M.D.Pa.1976). The element of possession is clearly inapplicable here as the bonds in question were stolen from private citizens.

The element of control is likewise inapplicable. Presence of control sufficient to show a federal interest depends upon the supervision over the property contemplated and manifested on the part of the government as reflected in the relevant statutes and regulations. United States v. Johnson, supra, at 846; United States v. Evans, supra, at 472. Consistent with 31 U.S.C. § 757c, regulations have been enacted concerning savings bonds.⁸ The regulations essentially control issuance and redemption of the bonds. As such, they reveal a far lesser degree of supervision and control by the government than was present in those cases upholding section 641 jurisdiction.⁹Cf. United States v. Collins, supra, (no section 641 jurisdiction where only government control was requirement that funds be kept in a special bank account at a specific bank).¹⁰

The question of whether the United States retains title in the bonds presents a more difficult question in light of United States v. Miller, 520 F.2d 1208 (9th Cir. 1975). In Miller a check, erroneously issued by the government as part of a federal grant, was converted by defendant. The defendant in that case argued that the funds which he was charged with embezzling no longer constituted property of the United States once the check had been issued and sent to a private organization. This defense was rejected for two reasons. First, the court held that "the check itself constituted a `thing of value' of the United States, within the meaning of section 641." Id. at 1210. Second the court found that, as the check was erroneously issued, the right to the funds represented by the check had never passed from the federal government.

The facts of Miller are distinguishable from the present case. In Miller, the government retained a property interest in the money as the check was erroneously issued. Moreover, the property never passed into possession of the third party. Rather, the funds from the check were deposited directly into the defendant's personal account. Thus, the theft occurred while the property still belonged to the government.¹¹ In the present case, however, the bonds were stolen from the private possession of third party owners. Thus, the property no longer belonged to the government. Cf. United States v. Collins, supra. (stolen warrant belonging to city not property of the United States); see also United States v. Freeman, 443 F.Supp. 288 (N.D.Cal.1977).

The government, however, relies upon the holding in Miller that the check itself was a "thing of value" of the United States within the meaning of section 641 and specifically the language that "when the drawer is the Government, it is the Government's piece of paper and the thief has stolen the property of the Government and of the person he has convinced to make payment." United States v. Miller, 520 F.2d 1208, 1210 (9th Cir. 1975) quoting United States v. Collins, 464 F.2d 1163, 1165 (9th Cir. 1972). The United States argues that the savings bonds at issue here are similarly the government's pieces of paper and as such provide the federal property interest necessary to sustain defendant's conviction.

Although the language of Miller, taken by itself, would appear to suggest such a result, the issue is less certain upon closer scrutiny. There are literally...