UNITED STATES of America, Plaintiff-Appellee, v. Jean GRISTEAU, Defendant-Appellant, 611 F.2d 181

BAUER, Circuit Judge. Appellant Gristeau, a Menominee Indian, was found guilty of violating 18 U.S.C. §§ 1153 and 661 for taking a Ruger .357 magnum revolver from a tribal policeman while on the Menominee Indian reservation in Keshena, Wisconsin. The issue on appeal is whether the district court erred in refusing to instruct the jury that they had to find that the appellant intended to permanently deprive the officer of the gun before they could find her guilty as charged in the indictment. I Jean Gristeau is a Menominee Indian residing at Keshena, Wisconsin on the Menominee Indian reservation.

On November 6, 1978, tribal policeman Gerald T. Weso went to the Gristeau home to pick up one Wanda Dick who was wanted by neighboring Shawano County authorities for a violation of work release rules. As Officer Weso escorted Dick to his police car, he and Gristeau argued about the arrest. Gristeau tried to pull Dick away from Officer Weso, scratching Officer Weso on the hand. She told her dog to bite Officer Weso, but the dog just growled and nipped at him. Officer Weso drew his revolver, intending to shoot the dog, but upon seeing a small child in the vicinity returned the revolver to his holster.

As Officer Weso tried to put Dick into the squad car, Gristeau grabbed the revolver from Officer Weso’s holster, walked back around the rear of the squad car, cocked the hammer and shot three times from various places near Officer Weso. Gristeau had the gun for a minute or two when the sheriff and other officers arrived. She threw the revolver onto the front seat of the squad car and it fell on the squad car floor.

When the other officers arrived, Gristeau yelled, “He’s shooting his gun around, he’s trying to kill my dog, see what he’s doing.” Gristeau continued resisting and two officers placed her in the squad car. Testimony at trial established that the revolver cost $164 to $165. A two count indictment issued November 14, 1978 charged Gristeau with crimes under the Major Crimes Act, 18 U.S.C. § 1153.

Count I of the indictment charged that Gristeau “with intent to steal and purloin, took and carried away personal property in the custody of another, which property was of a value in excess of $100.00, that is, one 357 Caliber Revolver out of the holster of Gerald T. Weso, in violation of Title 18, United States Code, Sections 1153, 661.” Count II of the indictment charged that Gristeau “assaulted another with a dangerous weapon with intent to do bodily harm and without just cause or excuse, that is, firing a 357 Caliber Revolver at Gerald T.

Weso, all in violation of Title 18, United States Code, Sections 1153, 113(c).” Judge Warren denied defendant’s motion to dismiss Count I, and the case proceeded to a jury trial on February 2, 1979.

The trial judge instructed the jury that the Government had the burden to prove “that the defendant took and carried away that property with intent to steal said personal property.” The Court refused to deliver defendant’s instruction that “[i]ntent to steal means intent to permanently deprive another of his property.” Instead, the Court instructed the jury that ‘[t]o steal’ means to acquire or possess as a result of some wrongful act or dishonest act or taking, whereby a person willfully obtains or retains possession of property which belongs to another, without or beyond any permission given, and with the intent to deprive the owner of the benefit of ownership.

On February 7 the jury found the defendant guilty on Count I and not guilty on Count II. Post-conviction motions were filed on February 14 and were denied by Judge Warren on March 13,1979. Gristeau was given a suspended sentence and placed on probation for one year. A timely notice of appeal was filed on April 13, 1979. No motions have been filed for stay of sentence pending appeal. II The Major Crimes Act, 18 U.S.C. § 1153, gives federal courts jurisdiction over certain crimes committed by Indians on Indian territory.

In relevant part, 18 U.S.C. § 1153 provides: Any Indian who commits against the person or property of another Indian or other person . . . larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above- offenses, within the exclusive jurisdiction of the United States. . * * * * * * [A]ny other of the above offenses which are not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

Gristeau contends that 18 U.S.C. § 661, under which she was convicted, does not “define and punish” larceny.

Section 1153, Gristeau argues, codifies the common law definition of larceny, which requires that the defendant have the intent to permanently deprive the victim of his property.

Section 661, in contrast, provides only that the defendant have the intent to “steal or purloin.” 18 U.S.C. § 661. If § 1153 codifies common law larceny, rather than the offense described in § 661, Gristeau’s conviction must be reversed for failure to give defendant’s requested instruction. Gristeau further contends that even if § 661 defines larceny as used in § 1153, § 661 itself requires an intent to permanently deprive. The questions raised in this appeal were recently addressed in United States v. Maloney, 607 F.2d 222 (9th Cir. 1979).

In that opinion, the Ninth Circuit joined the Eighth and Tenth Circuits in holding that § 661 defines the federal crime of larceny contained in § 1153 and that the crime is not limited to its common law definition. Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974); Dunaway v. United States, 170 F.2d 11, 12 (10th Cir. 1948); United States v. Gilbert, 378 F.Supp. 82, 90 (D.S.D. 1974). No court has taken a contrary view. The Maloney court reviewed the legislative history of §§ 661 and 1153, concluding that § 661 “defined and punished” larceny. Maloney, 607 F.2d at 226.

The court then held that the element of “intent to steal or purloin” in § 661 did not require a showing of intent to permanently deprive because Congress intended to broaden the offense. Instead, the court adopted the definition of “stolen” applied by the Supreme Court in United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957): ‘Stolen’ . . . includes all felonious takings . . . with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny. Maloney, 607 F.2d at 231.

We think the reasoning of the Ninth Circuit in Maloney is sound and we adopt it here. Appellant has advanced no argument not addressed in Maloney. Accordingly, we hold that 18 U.S.C. § 661 defines and punishes the federal crime of larceny contained in § 1153, and that 18 U.S.C. § 661 does not require an intent to permanently deprive. The trial judge therefore properly refused to give the requested jury instruction.

Appellant’s conviction is AFFIRMED. . 18 U.S.C. § 661 provides: Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows: If the property taken is of a value exceeding $100, or is taken from the person of another, by a fine of not more than $5,000, or imprisonment for not more than five years, or both; in all other cases, by a fine of not more than $1,000 or by imprisonment not more than one year, or both.