United States v. Parent

• Citation: 484 F.2d 726
• Decision Date: 18 July 1973
• Docket Number: No. 72-1419,72-1600.,72-1504,72-1419
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo PARENT et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

484 F.2d 726 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Leo PARENT et al., Defendants-Appellants.

Nos. 72-1419, 72-1504, 72-1600.

United States Court of Appeals, Seventh Circuit.

Argued January 26, 1973.

Decided July 18, 1973.

Rehearing Denied September 20, 1973.

COPYRIGHT MATERIAL OMITTED

Thomas D. Decker, Federal Defender Program, George C. Howard, Martin S. Gerber, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, Ann P. Sheldon, Asst., U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before HASTINGS, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.

PELL, Circuit Judge.

Leo Parent, Robert Quagliato, and Miklos Polesti appeal from their convictions of conspiracy and willful and knowing possession of goods stolen from an interstate shipment, in violation of 18 U.S.C. §§ 371 and 659. On this appeal they contend that the goods at the time they were stolen had not yet become an "interstate shipment" as that term is used in 18 U.S.C. § 659 and that the evidence was insufficient either to show possession and knowledge of the theft of the goods or to support the conviction of conspiracy.

The case involves the theft of 250 mini-bikes from a shipment loaded by the manufacturer, Efenel Corporation, on a trailer order from the carrier, Carolina Freight Lines. Having received an order for the new mini-bikes from a North Carolina customer, the shipping clerk at Efenel called Carolina Freight Lines and ordered a 45-foot trailer to be spotted at the Chicago and North Western Team Track approximately a block from Efenel's building. This procedure was required since bridge repairs prevented a semi-trailer from being brought to the building. Efenel's employees then loaded the trailer with the mini-bikes, placed a seal on the door, and called Carolina to pick up the trailer. Approximately two hours later, Efenel's shipping clerk went to see why the Carolina driver had not come to sign the bill of lading. He found the driver but the trailer had disappeared.

Appellants contend that since the goods had not left the possession or control of their owner at the time of the theft, and since no bailment had been constituted with the trucker, they had not become an "interstate shipment" for purposes of 18 U.S.C. § 659. Most cases affirming convictions under 18 U.S.C. § 659 have dealt with thefts of goods after they have left the control or possession of the owners, but for the reasons given hereinafter, we hold that the facts of this case support a conclusion that the jurisdictional element was satisfied.

Initially we must reject appellants' reliance on Lowery v. United States, 271 F. 946 (7th Cir. 1921). There the Chicago, Burlington & Quincy Railroad had purchased in Herrin, Illinois, a load of coal. It had shipped the coal in one of its cars by what was called a slip bill to Christopher, Illinois. The employees in Herrin were to make out the bill of lading, allowing Christopher to take as much coal as needed. At one time the bill of lading was made out with Sioux City, Iowa, as the destination, but before it was sent by mail to Christopher, the destination was changed to Christopher itself. The coal was stolen while the car was on a siding in Christopher. This court rejected the Government's contention that because the bill of lading at one time had an out-of-state destination, the shipment was an interstate one:

"The fact that a destination outside the state of Illinois was at one time written into the bill, even if wholly unexplained, does not overcome the facts with reference to actual carriage of the coal." 271 F. at 947.

It is clear that the court in Lowery felt that the only time in which it could say that the coal was a "shipment" was when it was going from Herrin to Christopher; an interstate destination was contemplated only after the coal came to rest and no action was taken to implement that destination. Here, however, action was taken specifically to send the mini-bikes interstate. Moreover, Lowery's facts are unique since there the individuals involved in the transportation of the coal were never informed of the Sioux City, Iowa, destination; that destination was changed to Christopher, Illinois, before the bill of lading was forwarded to Christopher.

Nor do we find persuasive appellants' analogy to those cases concerned with the time at which goods enter interstate commerce so as to relieve them from local taxation. In Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886), the Court held that goods intended for exportation to another state are still taxable in the state of origin until they are actually started in the course of transportation to the state of destination or delivered to a common carrier for that purpose, and that the mere carrying of the goods to a depot for the purpose of transporting them was not in itself the start of that transportation. The Court emphasized that though the logs in the case were intended for export to Maine, they might never be sent into interstate commerce because the owner could change his mind and sell them within New Hampshire.

Two comments seem warranted with respect to Coe. First, as the court emphasized in United States v. Fox, 126 F. 2d 237 (2d Cir. 1942), when considering the predecessor to 18 U.S.C. § 659, "the test of whether a state may tax the goods is not a safe one for deciding whether Congress has power to regulate them." Second, the scope of Congress' power to regulate under the commerce clause has undergone substantial judicial broadening since Coe was decided. Compare Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903), and Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918), with Wickard v. Filburn, 317 U. S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Furthermore, the facts in the present case point more clearly to the interstate character of the shipment than those in Coe since Efenel's employees had loaded and sealed the Carolina trailer as the first step in interstate transportation became intrastate only by virtue of an intervening local asportation. We do not find Coe controlling.

The question remains, however, of whether or not the mini-bikes were, in the words of the statute, "moving as or which are a part of or which constitute an interstate or foreign shipment of freight . . . ." The statute serves an important role in protecting interstate commerce; therefore, "we must . . . be mindful that Congress has here undertaken to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions." United States v. Berger, 338 F.2d 485, 487 (2d Cir. 1964), cert. denied, 380 U.S. 923, 85 S.Ct. 925, 13 L. Ed.2d 809 (1965), quoted approvingly in Dunson v. United States, 404 F.2d 447, 449 (9th Cir. 1968), cert. denied, 393 U. S. 1111, 89 S.Ct. 925, 21 L.Ed.2d 808 (1969), and United States v. Cousins, 427 F.2d 382, 384-385 (9th Cir. 1970). This, of course, does not mean that we can ignore the language of the statute in an effort to protect all that Congress might have protected, but it does indicate the necessity of a common-sense analysis of the statutory language in light of the important statutory purpose. Thus, in United States v. Cousins, supra, the court found that a freight car that had been spotted on the consignee's spur to await unloading had not yet lost its interstate character. "The determination of whether a shipment is in interstate commerce at a given time is essentially a practical one, depending upon the relationship between the consignee, consignor, and carrier, the indicia of interstate commerce at the time the theft occurs, and the preservation of the congressional intent." 427 F.2d at 385. No single factor — such as the passage of risk of loss to the carrier or consignee — is conclusive in the determination.

Although most of the cases cited have found interstate character as soon as the goods have left the shipper's possession, United States v. Berger, supra, United States v. Fox, 126 F.2d 237 (2d Cir. 1942), and Sharp v. United States, 280 F. 86 (5th Cir. 1922), cert. denied, 260 U.S. 730, 43 S.Ct. 92, 67 L.Ed. 485, this merely reflects the fact that most of the litigation has centered on whether the goods had to reach the interstate carrier before they entered interstate commerce. We do not conceive that these cases represent the sole acceptable interpretation of the statute. Rather, the facts of the present case make it analogous to United States v. Sherman, 171 F.2d 619 (2d Cir. 1948), cert. denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738 (1949), and United States v. Gollin, 176 F.2d 889 (3d Cir. 1949), cert. denied, 338 U.S. 848, 70 S.Ct. 89, 94 L.Ed. 519.

In Sherman, the goods, already labelled with the names of consignees, had been given to a trucker who was under contract to take them to the docks. When he reached the dock he went aboard the steamship to get the bill of lading signed. It was at this point that the goods were stolen. The Second Circuit, speaking through Judge Learned Hand, held that the fact that the bill of lading had not yet been signed by the carrier was an irrelevant difference and that the previous decision of United States v. Fox, supra, controlled: "We then made it the test that the goods should leave the possession of the shipper, and come into the custody of someone who without more than inevitable pauses was to pass them along." 171 F.2d at 622. Thus, the mere giving of the goods to a private contractor who was to take them to the common carrier is enough to invoke federal protection. Cf. United States v. Padilla, 457 F.2d 1403 (9th Cir. 1972). The question then becomes whether the loading of the common carrier's truck at a point removed from the shipper's warehouse is sufficient to obtain such protection.

In this respect the Go...