United States v. Padilla

• Decision Date: 13 March 1967
• Docket Number: Docket 30176.,No. 320,320
• Citation: 374 F.2d 782
• Parties: UNITED STATES of America, Appellee, v. Felix PADILLA, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

374 F.2d 782 (1967)

UNITED STATES of America, Appellee, v. Felix PADILLA, Appellant.

No. 320, Docket 30176.

United States Court of Appeals Second Circuit.

Argued January 25, 1967.

Decided March 13, 1967.

Phylis Skloot Bamberger, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

John H. Doyle, III, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., and Robert G. Morvillo, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE and FRIENDLY, Circuit Judges, and BRYAN, District Judge.^*

FREDERICK van PELT BRYAN, District Judge:

Felix Padilla has been convicted of the theft of two pairs of women's slacks valued at less than $100, part of an interstate freight shipment, in violation of 18 U.S.C. § 659, after trial before Judge Herlands without a jury in the Southern District of New York.¹ On this appeal from the judgment of conviction Padilla's sole contention is that he should not have been convicted because it was not proved at the trial that the slacks had been stolen or taken "from" the motortruck in which the interstate shipment was being carried as required under § 659.

Viewing the evidence in the light most favorable to the Government as we must, the following quite simple facts relevant to this contention can be deemed established by the record.

On December 9, 1964 Padilla was assigned as a helper on a motortruck opererated by City Carriers, Inc. engaged in the delivery of interstate freight shipments. During that day he described to Roosevelt Smith, the driver of the truck, a method by which he could remove the contents of cartons of one of the shippers, National Togs, without breaking them open, and indicated to Smith that he had previously stolen goods in that manner.

The next day the truck made several deliveries of interstate shipments and then was parked for lunch at 11th Avenue and 42nd Street. While the cartons in the body of the truck were being rearranged for afternoon delivery Smith saw Padilla trying to get his hand into a sealed National Togs carton. When he was unable to do so Padilla worked his way into a second carton and pulled out two pairs of women's slacks. He hid the slacks in the front of the body of the truck and placed several cartons on top of the carton from which he had taken them. This was done over Smith's protests and Padilla asked him to keep quiet about it.

Nevertheless Smith telephoned his boss, Bell, who arrived shortly with two F. B. I. agents. Smith and Padilla were in the front seat of the truck. Smith, who had keys to the back of the truck (which Padilla did not), unlocked the rear doors. Smith pointed out the carton which had been broken into and the place where the slacks were hidden. The agents took the slacks from their hiding place. Later Padilla was arrested and charged with the theft. There was evidence that after the arrest Padilla had offered inducements to Smith to persuade Smith not to testify against him.

Padilla took the stand in his own defense and denied taking the slacks or trying to persuade Smith not to testify.

I.

Section 659 of Title 18, in relevant part, reads as follows:

"Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any railroad car, wagon, motortruck or other vehicle, or from any 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 with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight * * *."

The information charged that Padilla "with intent to convert to his own use, did embezzle, steal, take and carry away from a City Carriers, Inc. Mortortruck sic * * * two pairs of women's slacks, which were moving as, were part of and constituted an interstate shipment of freight and express from New York, New York, to Chicago, Illinois," in violation of § 659.²

Padilla contends that to establish the charged violation of § 659 it was necessary for the Government to show that he had physically removed the slacks from — that is to say out of — the truck in which they were being transported. His theory is that the phrase in § 659 "from any * * * motortruck`" coming after the words "steals, or unlawfully takes" must be construed to require such proof before a crime can be said to have been committed. He therefore urges that since he had merely hidden the slacks taken from the carton in the body of the truck where they remained until the agents found them, and had at no time taken them out of the vehicle, proof of an essential element of the crime charged was lacking and he should have been acquitted.

We see no merit in this contention. We hold that a theft or unlawful taking under § 659 was complete when Padilla removed the slacks from the carton in the body of the truck and reduced them to his possession and control with the intent to convert them to his own use. Hiding the slacks in the front of the body of the truck after he had acquired dominion over them, with a view to disposing of them later, was additional evidence of his intent to convert them to his own use and of the completion of the crime.

II.

There are three elements of the crime defined in § 659 as charged in the information. It must be proved (1) that the slacks were stolen or unlawfully taken by the accused with intent to convert them to his own use; (2) that the slacks were "part of an interstate * * * shipment of freight"; and (3) that the slacks were stolen or unlawfully taken "from" the City Carriers' motortruck.

It is the last of these three elements which Padilla contends was not proven.

However, the phrase "from any * * motortruck" as used in the context of the statute does not, as Padilla contends, require that the goods be physically removed from the vehicle — that is to say actually taken out of it — before the crime of theft or unlawful taking from interstate commerce can occur. While the preposition "from" may be used to indicate physical removal or asportation it is not so used here. An ordinary and usual meaning of "from" is to indicate a starting point. Webster's International Dictionary 1012 (2d ed. 1953); The Shorter Oxford English Dictionary 754 (3d ed. 1955). That is the sense in which it is used in § 659 — to indicate the facility in which the theft or taking from interstate commerce must initiate in order to have the statute apply.

Moreover, the construction for which Padilla contends would do violence to other language in the statute. While it might be argued that "steals, or unlawfully takes, * * * from any" of the enumerated facilities could be literally read to imply a requirement of actual removal from the facility, that could scarcely be true when the phrase "from any" facility is applied to the word "conceals." To "conceal from * * * any motortruck" makes little sense unless "from" be read as indicating the starting point of the act charged — that is to say the facility in which the goods were located when the act began.

This is in substance the construction of the statute adopted by this Court in United States v. De Normand, 149 F.2d 622 (2d Cir. 1945), cert. den., 326 U.S. 756, 66 S.Ct. 89, 90 L.Ed. 454 (1945). There the defendants were charged with stealing merchandise moving in interstate commerce from trailer trucks in violation of then 18 U.S.C. § 409,³ the predecessor of § 659. The driver of one of the trucks had taken it from the terminal and parked it in the street while he went for a cup of coffee. As the driver was returning to the parked truck he was held up by defendants at gunpoint before he reached the truck, was taken to the terminal and was placed bound and gagged inside an empty truck there. Defendants were arrested as they left the terminal and before they reached the parked truck. The truck remained sealed. The defendants had not moved any of its contents or even touched it.

The Court rejected the contention that § 409 had not been violated "because there was no asportation of the truck or any of its contents." It held that the stealing or unlawful taking contemplated by the statute was complete when the defendants by seizing the driver took over dominion or control of the truck from the carrier. Defendants thus acquired at least constructive possession of the truck and its contents and this was sufficient.

In this aspect the case at bar is, if anything, stronger than De Normand. Here Padilla actually reduced the slacks to his physical possession, exercised dominion over them with intent to convert them to his own use and hid them for later disposition.

De Normand makes it clear that the enumeration of the specific interstate transportation facilities "from" which goods must be abstracted does not import physical removal of the goods out of or away from one of the enumerated facilities or even asportation in the common law larceny sense. The phrase merely limits the proscription of the statute to takings which initiate or occur at the types of interstate transportation facilities specified.

III.

While the statute as it read when De Normand was decided was amended in 1946 and was reworded on recodification in 1948, no meaningful change was made which would alter the essential object of the statute or require any different construction than we have given it.

The statute was first enacted in 1913⁴ because of the difficulties being encountered in prosecutions in the state courts for the increasing number of thefts from interstate commerce which were having a disruptive effect on the interstate flow of goods. It was thought that by supplementing state jurisdiction by federal legislation venue and other problems which were plaguing state authorities in cases of this nature would be minimized. See Senate Rep.No.1732, 62d Cong., 3d Sess. (1913); 49 Cong. Rec. 1780-82, 2480-81...