Webb v. United States

• Decision Date: 27 January 1967
• Docket Number: No. 22885.,22885.
• Citation: 369 F.2d 530
• Parties: William Michael WEBB, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

369 F.2d 530 (1966)

William Michael WEBB, Appellant, v. UNITED STATES of America, Appellee.

No. 22885.

United States Court of Appeals Fifth Circuit.

December 14, 1966.

Rehearing Denied January 27, 1967.

Harris J. Buchbinder, Miami Beach, Fla., for appellant.

Robert C. Josefsberg, & Michael J. Osman, Asst. U. S. Attys., Miami, Fla., for appellee.

Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

WISDOM, Circuit Judge:

This case turns on the broad sweep of the term "stolen" as used in the Dyer Act, covering all felonious takings of motor vehicles regardless of whether the theft constitutes common law larceny.

The appellant, William Michael Webb, was convicted by a jury July 21, 1965, for stealing a truck in violation of the National Motor Vehicle Theft Act, 18 U.S.C. § 2312. He was convicted on the same day without a jury for unauthorized entry into the United States in violation of Sections 212(a) (26), 241(a) (1) and 276 of the Immigration and Naturalization Act, 8 U.S.C. §§ 1182, 1251, and 1326. The court imposed concurrent sentences, three years for the theft and two years for the illegal immigration.

In this appeal, Webb asserts that (1) the evidence is insufficient to support the theft conviction because he had an interest in the ownership of the allegedly stolen truck; and (2) the illegal immigration indictment does not specify the section number of the applicable penalty provision. We find no error and affirm.

I.

Webb, an alien, was deported to Canada in 1947 and in 1952. Subsequently, he reentered the United States without permission of the Attorney General. In September 1962 Webb entered into an oral arrangement with Arthur R. Studley, Jr., a Santa Barbara, California, florist, to develop a marble quarry in Arizona. Studley provided Webb $1,000 in cash to go forward in the venture. Webb was to manage the operation of the quarry. At the trial Studley stated that he regarded the $1,000 as a loan that Webb would have to repay as a condition to the formation of a partnership between them.

October 15, 1962, Webb and Studley entered into a five-year renewable lease of several mining claims in Maricopa County, Arizona. Both Webb and Studley signed the lease. They paid a $500 advance royalty, and agreed to pay a minimum royalty of the same amount for each subsequent month of the lease. The lessees also had a six-month option to purchase the property for $50,000. According to the lease, failure to make the monthly royalty payments on schedule or to perform other obligations of the agreement would result in its termination ten days after notice by the lessors.

Webb worked the quarry with rented trucks and equipment from mid-October to early November of 1962. November 10 Webb suggested to Studley in Santa Barbara that the business should have its own truck. Studley agreed and that day the two men selected a new truck at the Ford agency near Santa Barbara. They chose a white 1963 Ford F-100 pickup truck priced at $2,350.94, and Studley made a down payment of $125 in cash. He signed a Retail Buyers Order and Invoice that named the "purchaser" as the Aguila Marble Co., and gave the purchaser's address as 5370 Hollister Avenue, Goleta, California, his address. The order stated a time price balance of 36 monthly payments of $73.30. Studley signed the conditional sales contract with the United California Bank and from time to time made the monthly payments to the bank.¹ Several days after the purchase, Webb picked up the truck and drove it to Arizona to continue operations at the quarry. In December Webb told Studley that the quality of the marble at the Arizona quarry was disappointing. Shortly thereafter they examined several quarry locations near Victoryville, California, seeking a variety of white rock. They made no decision at this time on the question whether to abandon the Arizona quarry and start work on another site. Webb had exhausted the funds already contributed to the business by Studley, but Webb indicated a willingness to raise additional funds in Oakland, California. Studley agreed to let Webb take the truck to Oakland to raise the additional money for their quarry project. Webb promised to keep Studley posted about the quarry operation.

December 12, 1962, the lessors of the Arizona claims terminated the Studley-Webb lease for non-performance. The record does not disclose whether the lessees made any payments in addition to the initial payment at the signing of the agreement in October. The record also shows no indication that Webb performed any work at the Arizona quarry after December 1962. Studley continued to make the payments on the truck until sometime in 1964.

In early 1963 Webb called Studley, seeking more money either for personal expenses or the quarry operation. It is unclear whether Studley granted this request. Studley testified that at this time he did not ask Webb to return the truck. In 1963 Webb made two trips in the Ford truck from California to Florida. Before the first trip, he told an Oakland mining equipment dealer, Alfred Martin, that he owned the truck and planned to transport some equipment from Sacramento to Florida. On the second trip to Florida, no later than March 1963, Webb carried a load of mining equipment for Martin. Webb offered Martin the truck or its cash conversion value for an interest in a mining and equipment venture Martin was establishing in British Guinea. Martin testified that Webb told him he owned the truck and that no payments were due on it. He complained to Martin that he had been cheated out of a large amount of money in the Arizona quarry business.

During his visits to Miami, Webb stayed at the Victor Motel, owned by Paul Brockman. At the time he checked out of this motel, April 23, 1963, Webb owed $400 on his account. He deposited the truck with Brockman as security for payment of the bill. Brockman drove Webb to the airport for a trip to Georgetown, British Guinea. Webb promised to return in a few weeks to pay the motel bill and other debts that he owed Brockman. Webb never appeared at the motel again. Later he wrote Brockman seeking one thousand television sets for sale to a new hotel in Port-of-Spain, Trinidad. From Port-of-Spain in April 1963 Webb also wrote a Hialeah, Florida, marine equipment store for additional diving suits, masks, and regulators to operate a Venezuelan dredging project. The store had already advanced him a substantial sum for the dredging venture. Webb promised to repay the money later.

Studley repeatedly tried to telephone Webb in early 1963. February 4 was the deadline for obtaining new license plates for the truck. Webb did not reply until the first week of August. In a letter postmarked Los Angeles, August 4, 1963, Webb promised to send Studley: "the money for the truck, or if you want the truck, I'll see that it's returned to you. Also the money I owe you which I figure is around $1,250.00." Webb asserted that he "put about 4 months of hard work" in the Arizona quarry "plus a fair bit of money, also a lot of chasing around." He disclaimed responsibility for various debts that remained from the quarry's operation.

Studley first filed a complaint on the missing truck in Spring 1963. Eventually, he stopped making payments on the truck, and his bank took steps to repossess it. Brockman reported the truck's presence at his motel to the Federal Bureau of Investigation in Miami in the summer. Studley regained possession of the truck in California in Spring 1964.

September 23, 1964, a three-count indictment was obtained against Webb in Miami for: (1) illegal transportation of a forged security under 18 U.S.C. § 2314; (2) interstate transportation of a stolen truck from California to Florida about January 1, 1963; and (3) illegal presence in the United States April 6, 1963, following a prior arrest and deportation. Webb did not return to the United States from South America until May 7, 1965. He was arrested May 19 in Phoenix, Arizona and removed to Miami for trial. Webb won acquittal in his trial on the forged check count. He appeals from the convictions on the stolen truck and illegal immigration charges.

II.

Webb limits his attack on the stolen truck conviction to the sufficiency of the evidence. He contends that the truck was owned by the Aguila Marble Company, the Arizona quarry business in which he and Studley had a joint interest; that as a part-owner he could not have stolen the truck from himself. The original certificate of title, though held by the bank, showed Aguila Marble Company as the owner. Webb argues that Studley did not own the truck, but was only an obligor on the installment contract. Webb maintains that his interest in the quarry was sufficient for him to drive the truck from California to Florida even without Studley's express approval.

The Dyer Act has a broad sweep. "`Stolen' as used in 18 U.S.C. § 2312² 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," United States v. Turley, 1957, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 430, 436. The Court held in Turley that the definition of the "intent to deprive" and the "rights and benefits of ownership" under this statute "should not be dependent on state law." 352 U.S. at 411, 77 S.Ct. at 399. The automobile's unique suitability to felonious taking by "innumerable forms of theft" compels comprehensive federal protection against all possible "loopholes for wholesale evasion." 352 U.S. at 416-417, 77 S.Ct. 397.

The trial court's instructions in this case carefully followed the Turley requisites. The court charged that "stolen" means "any wrongful or dishonest taking whereby a person obtains property belonging to another without or beyond any permission given and with the intent to deprive the owner of the right and benefit of the ownership." The jury could not...