WILKERSON v. UNITED STATES, 41 F.2d 654

SPARKS, Circuit Judge. The appellant was convicted and sentenced under

section 88, title 18, USCA, which provides that “if two or more persons conspire * * * to commit any offense against the United States, * '* and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * *, or imprisoned, * * * or both.” The offense which is charged to be the object of the conspiracy is the violation of the National Motor Vehicle Theft Act,

section 408, title 18, USCA, which provides that whoever shall transport or cause to be transported in interstate commerce a motor vehicle, knowing the same to have been stolen, shall be punished, etc. It further provides that “whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate * * * commerce, knowing the same to have been stolen, shall be punished,” etc.

The charge in the indictment most consistent with the government’s evidence is that appellant conspired with others to receive an automobile, knowing the same to have been stolen, which automobile at the time was a part of interstate commerce. The evidence shows beyond a reasonable doubt that the defendants below, other than appellant, had entered into the conspiracy charged, and in furtherance thereof were, and had been, stealing automobiles in other states and transporting them into Indiana and other slates, where they received, concealed, stored, bartered, sold, or disposed of them.

It will be observed that a part of the conspiracy was to sell and dispose of the automobiles to others, and to have others receive them. In other words, the conspiracy operated until the automobiles were finally disposed of and lodged in the possession of some person who was not, at any stage, a party to the conspiracy. If, therefore, the property stolen and transported pursuant to the conspiracy ever became, in furtherance of the conspiracy, a part of interstate commerce, it remained so until it left the confines of the conspiracy.

The evidence in this case shows conclusively and beyond reasonable doubt that the automobile in this case was stolen in Cleveland, Ohio, and transported into Indiana by the defendants other than appellant pursuant to, and for the purposes set forth in, the indictment. That the party or parties from whom appellant purchased the automobile was a party, or were parties, to the conspiracy there can be no doubt. Therefore at the time appellant purchased the auto it was still in the channel of the. conspiracy, and essentially a part of interstate commerce.

If appellant, at the time he purchased the auto, knew it was stolen property, and planned and conspired to receive .it .by purchase or barter, he comes squarely within the provision of the statute, regardless of whether he knew at the time it was interstate commerce. Kasle v. United States (C. C. A.) 233 F. 878; Rosen v. United States (C. C. A.) 271 F. 651. Appellant calls our attention to the ease of Salla v. United States (C. C. A.) 104 F. 544.

In that case the indictment charged defendants with conspiring to unlawfully, willfully, maliciously, and knowingly delay and obstruct a railway ear and train, which ear' and train were then and there carrying United States mail. The court held the indictment bad because it did not allege that defendants knew the train was carrying mail. The statute under which the indictment was brought requires that defendants should have this knowledge. There is no crime, under that statute, in obstructing and delaying a train, or in conspiring to do so, unless it is carrying mail. USCA, title 18, c. 8, § 324.

The statute' defining the substantive offense upon which the alleged conspiracy in the instant ease is based does not require that defendant should know that the stolen property is a part of interstate Commerce. The two statutes are directly opposite in this particular. We are unable to reconcile the case of Linde v. United States (C. C. A.) 13 F.(2d) 59 (South Dakota), with either the statute • above quoted or the eases of Katz v. United States (C. C. A.) 281 F. 129 (Ohio), Rosen v. United States (C. C. A.) 271 F. 651 (N. Y.), and Kasle v. United States (C. C. A.) 233 F. 878 (Ohio).

Under the statute and these last-named eases, if appellant had 'been charged with having received a stolen automobile which was moving in interstate commerce, knowing the same to have teen stolen, it would not have been necessary to allege or prove that he knew it was a part of interstate commerce. This state of facts clearly would have constituted an offense against the United States.

The conspiracy statute under which this indictment is drawn provides that if two or more persons conspire to commit any offense against the United States and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to the conspiracy. shall be fined or imprisoned, etc. How, then, can it be said that it is necessary, under the conspiracy statute, to prove knowledge of the appellant as to the interstate character of the property, when it is not necessary to do so in order to warrant a conviction under the statute which defines the substantive crime ?

The fact that the indictment charges such knowledge on the part of appellant does not strengthen the indictment, nor would its absence invalidate it. Neither can the instructions of the court diminish or increase the effect of the statute. If the court instructed more liberally than appellant was entitled to, certainly appellant cannot eomplain.

Conceding, without admitting, that it was necessary to prove that appellant knew the car was a part of interstate commerce, we think there was sufficient evidence supporting this fact to warrant the court in sending the case to the jury; and, having done so, its determination is final. The jury found that appellant knew he was buying a stolen car. He said he bought it from a stranger who gave his name as Earle Wilson, and appellant knew he was a bootlegger.

The evidence shows that Wilson had the certificate of title in his own name and possession, and it was issued by the state of New York, and he had gotten it by way of assignment of another New York certificate. It is true that thése certificates were forgeries, and the car was actually owned and stolen in Ohio; but this fact can avail appellant nothing. He knew that it was a stolen car, and that it was not an Indiana car. These facts are quite sufficient to support the verdict upon the question of appellant’s knowledge that the car was in interstate commerce.

The evidence conclusively shows that appellant planned and conspired to receive the automobile. He talked with the thief in the Claypool Hotel, inspected it, rode in it around several blocks, telephoned to his secretary and to two friends relative to getting the purchase price, and went to Traugott’s store and got part of the money. The transfer of the car and title was completed and he received it. It avails appellant nothing to say that he was guilty of nothing more than receiving a stolen automobile because the transaction was completed.

In such ease there may be a conviction' of both the conspiracy and also the crime which is the object of the conspiracy. Chew v. United States (C. C. A.) 9 F.(2d) 348. The liability for conspiracy is not taken awav by its success. Heike v. United States, 227 U. S. 131, 33 S. Ct. 226, 57 L. Ed. 450. The remaining fact to be proved by the government to warrant conviction is that appellant, at the time he purchased the auto, knew that it was stolen property.

Possession of the fruits of crime recently after its commission justifies the inference that the possession is guilty possession, and, though, only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence. This presumption applies as well to a person charged with unlawfully receiving stolen goods as to one charged with its original taking. If it raises a presumption of guilt as to the more serious crime, much more should it be evidence of the guilt implied in the lesser offense.

It is a question for the jury whether the inference of appellant’s guilty reception of the automobile, arising from his possession thereof within a short time after the theft, was overcome by the explanation. Rosen v. United States (C. C. A.) 271 F. 651; Drew v. United States (C. C. A.) 27 F.(2d) 715; Wilson v. United States, 162 U. S. 613, 16 S. Ct. 895, 40 L. Ed. 1090.

Appellant acquired possession of the auto within 16 days after it had been stolen, and while presumption of guilt, flowing from possession of recently stolen property, grows weaker as the time of the possession recedes from the time of the theft, yet it is for the jury to determine when the inference of guilt is overthrown by the length of possession.

The explanation of appellant’s possession is contained in a sworn statement made by him voluntarily before an agent of the Department of Justice on October 6, 1928, in which he says he paid for the automobile $2,-800 in cash and delivered to the seller three shares of Knox-Harrison bank stock of the par value of $100 a share; that he was compelled to cash a check for $1,500; that he went to the Lincoln Hotel and called Edward Traugott on the phone, who agreed to indorse his cheek.

Appellant executed the check for $1,500 at the Lincoln Hotel and went to Traugott’s store and handed the check to Traugott in front of his store. Appellant then sat down and read a Racing Form, and in a short time Traugott brought him the money, a great deal of it in twenty dollar bills. Appellant thereupon returned to the Glaypool Hotel and delivered the purchase price to Earle Wilson. At the suggestion of Wilson, appellant signed an application for certificate of title, but ho never acknowledged the signature before any one.

Appellant paid Wilson $12 for an Indiana license which Wilson promised to’secure from the secretary of state to deliver to appellant, which was done the same day. The records from the secretary of state of Indiana, with reference to this car, show that it was sold to Earle Wilson by Westcott & Burlingame, Inc., of New York City, on August 11, 1927, and that on the same day a New York certificate of registration was issued to him. These two instruments were forgeries, and there is no evidence that appellant ever saw them. The original owner of this car, John B.

Wilberding, testified that his initials were on the door of the car when it was stolen on December 25,1927; that later when he saw the car at Columbus (which was-after October 6,1928) the initials on the door had been obliterated; “that at first you could not see them, but when you stood at the side you could see them imbedded there.” There is no evidence as to when these initials wore obliterated, whether it was before appellant purchased the car or afterwards.

The evidence further shows that the shares of stock of the Knox-Harrison Bank have never been assigned on the books of the bank, and that the bank has been insolvent and in the hands of a receiver since May 10, 1928. The evidence does not show where Traugott got the money which appellant says was paid to him by Traugott. The chock was deposited the same day it was given to the account of Traugott in Fletcher Savings & Trust Company, at 474 West Washington street, Indianapolis. Traugott’s store was on Washington street across from the State House.

But he did not get the money at the bank, because the account shows no check of that date. Appellant does not say that Traugott got the money at his store. Furthermore, Traugott had been requested only to indorse the check, and yet he returned from some unknown place with the money, a large part of which was in twenty dollar bills.

Again, appellant was dealing with two strangers in the purchase of the auto and the only thing he knew about them was that they were self-confessed law violators, for they had told him this; yet he made no inquiry of the title, and gave $12 to Earle Wilson, the man least known to Mm, to secure for Mm a registration certificate at the secretary of state’s office. These facts are of course only circumstances, but they are of such an unusual character, considering the amount involved, that they immediately challenge the veracity of the parties concerned.

It must be remembered that Traugott was, according to the evidence, an active participant in the alleged conspiracy, and that he was an intimate friend of appellant, at least sufficiently intimate to advance $1,500 on h”is cheek. The theory of the government is that the only consideration paid for the ear by appellant was. the check given to Traugott, and that Traugott never gave appellant $1,500 in cash. The facts and incidents enumerated were properly submitted to the jury for them .to determine whether the explanation of possession was sufficient to overcome the inference of guilty possession.

The jury had a right to. determine whether appellant’s explanation, or any part thereof, was true or false. They have determined this fact adversely to appellant, and we cannot disturb the finding. Judgment affirmed.