Petition — Beil v. United States

wo.%8-913 ).

eaten

In the

Supreme Court of the United States

Ocroser ‘l'erM, 1978

JAMES BEIL and DANIEL BONNETTS,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

EDWARD M. GENSON

JEFFREY B. STEINBACK

134 North LaSalle +300

Chicago, Illinois 60602

(312) 726-9015

Attorneys for Petitioners

Of Counsel:

MARVIN I. BLOOM

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

————

eme Court, U.S -

FILE

D

1972

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PAGE

ESE SE RED RD EO ea CN OEP Ie ME CERTSENS BORER 1

Sep Ne eosneeneecnceenueenecseeserannssnmeenanews 2

a 2

Constitutional Provisions Involved LE Tae OSE ARE 3

Ce Se a TE 3

EE RG ROR ee NE TR TRS 5)

Reasons for Granting the Writ 20 8

The majority opinion which for the first time in

any reported case holds that a completed local

intrastate crime of automobile theft can auto-

matically ripen into a federal Dyer Act prosecu-

tion if the vehicle subsequently moved, in the hands

of others, in interstate commerce despite the fact

that the local thief had not joined in any agree-

ment, participated in, nor had any knowledge that

such interstate movement would take place, raises

significant and recurring problems concerning the

appropriate scope of federal jurisdiction and the

due process rights of the criminally accused ........ 8

RE SN te LC ee OS ER 14

Appendix A—Majority and Dissenting Opinion of

the Court of Appeals for the Fifth Circuit

dated August 11, 1973) =... App. 1

Appendix B—Per Curiam Order denying Petition

for Rehearing and Suggestions for Re-

hearing En Bane and Dissenting Opinion

dated November 8, 1978 0... eee App. 20

ii

AUTHORITIES CITED

PAGE

Cases

Bibbins v. United States, 400 F.2d 544 (9 Cir., 1968) 10,11

Overton v. United States, 405 F.2d 168 (5 Cir., 1968) .. 10

United States v, Beil, 577 F.2d 1313 (5 Cir., 1978) ...... 9,11

United States v. Berlin, 472 F.2d 13 (9 Cir., 1973) ........ 12

United States v. Doolittle, 507 F.2d 1368 (5 Cir., 1975) 10, 11

United States v. Feola, 420 U.S. 671 (1975) wu... 10, 11

Other Authorities

Fifth Amendment to United States Constitution ........ 3

Tenth Amendment to United States Constitution ........ 3

ER ERR ANI yeh e wee ReaD Nee een 3

INIA, TIEN" ecesticetnacckncosiucesistnsicesobhciaonwisinecsossanedens 3,13

a i cdouemiacunaediudaion 3,13

Iu the

Supreme Court of the United Stappa

Octoser TERM, 1978

No.

JAMES BEIL and DANIEL BONNETTS,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, James Beil and Daniel Bonnetts, pray that

a writ of certiorari be issued to review the judgment of

the United States Court of Appeals for the Fifth Circuit.

OPINION BELOW

The published opinion of the Court of Appeals is ap-

pended to this Petition as Appendix A and is cited as

United States v. Beil, 577 F.2d 1313 (5 Cir., 1978).

2

JURISDICTION

The two to one majority opinion of the Court of Appeals

was entered on August 11, 1978, together with a dissent.

Petitioners’ petition for rehearing, timely filed, was denied

pursuant to per curiam order on November 8, 1978, at

which time a dissent was again filed. This order and dis-

sent, which is appended to this petition as Appendix B,

reflects the fact that the rehearing en banc petition was

denied by a seven-seven tie vote of the fourteen judges

then presently in active service. The jurisdiction of this

court is invoked pursuant to 28 U.S.C. §1254(1) and Rule

22.2 of the Rules of this Court.

QUESTIONS PRESENTED

1, Whether the Government is barred by the Tenth

Amendment from prosecuting the purely local and intra-

state theft of an automobile under the Dyer Act under cir-

cumstances where unknown to the local thief a subsequent

purchaser later transports the automobile in interstate com-

merce after the theft has been completed?

2. Whether the majority opinion of the Court of Ap-

peals ignored Petitioners’ due process rights in affirming

their convictions of conspiracy to violate the Dyer Act in

view of the fact that the Government, by stipulation at

trial, conceded the absence of a requisite element of the

conspiracy ; the petitioners’ actual or implied knowledge of

or agreement to or participation in the interstate transpor-

tation of a stolen automobile?

3. Whether the majority opinion of the Court of Ap

peals, as a matter of sound judicial policy, improperly ex-

tended the scope of federal jurisdiction beyond limits here-

tofore established by any reported case?

3

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

No person shall be... deprived of life, liberty or

property, without due process of law;...

The Tenth Amendment to the United States Constitution

provides:

The power is not delegated to the United States by

the Constitution, nor prohibited by it to the states, or

reserved to the states respectively, or to the people.

STATEMENT OF THE CASE

This cause was initially instituted in the District Court

for the Middle District of Georgia, Columbus Division, pur-

suant to a one-count indictment charging Petitioners with

violations of Title 18, U.S.C., $371, and that Petitioners

conspired to transport in interstate commerce certain motor

vehicles, knowing the same to have been stolen, in viola-

tion of 18 U.S.C. $2312; and having conspired to receive,

conceal, store, barter, sell and dispose of certain motor

vehicles moving as and being a part of interstate com-

merce, knowing the same to have been stolen, in violation

of 18 U.S.C. $2313.

On April 27, 1977, pursuant to Rule 20 of the Federal

Rules of Criminal Procedure, this cause was transferred

to the United States District Court for the Nerthern Dis-

trict of Illinois, Eastern Division. There, on June 22, 1977,

Petitioners sought to enter their pleas of guilty before the

Honorable John F. Grady. At the plea hearing, Judge

Grady refused to accept the plea, and in his refusal stated:

Well, I am sure that for a conspiracy to violate the

statute, the element of the knowledge of the interstate

4

transportation is required. At least the defendant

would have to be on notice of facts from which that

transportation would be readily inferrable. That is

the very least. (as quoted in United States v. Beil,

577 F.2d 1313, 1319, Judge Coleman dissenting).

Thus, Judge Grady contended that as the absence of pre-

vious knowledge concerning the interstate character of the

subsequent activity was a defense to the case, he would

not entertain a plea of guilty. Accordingly, Judge Grady

vacated the Rule 20 transfer and re-transferred the Peti-

tioners to the United States District Court for the Middle

District of Georgia.

On September 7, 1977, Judge Robert Elliott, having con-

sidered the stipulation of facts entered into by the United

States of America and the Petitioners herein, entered find-

ings of guilty on the one-count indictment as to both Peti-

tioners. On September 15, 1977, Petitioners were sentenced

to a three year term of imprisonment. Subsequently, Peti-

tioners filed timely notice of appeal.

Thereafter, on August 11, 1978, by a two to one majority,

the Court of Appeals for the Fifth Circuit affirmed the

convictions of both Petitioners. Pursuant thereto, Peti-

tioners petitioned the panel for rehearing and further peti-

tioned for rehearing en banc, which petitions were denied

on November 8, 1978. A dissenting opinion was filed with

respect to both the August 11, 1978 decision and the No-

vember 8, 1978 order. As reflected in the latter dissent,

the rehearing en banc petition was denied by virtue of a

seven-seven tie vote of the fourteen judges then in active

service,

5

STATEMENT OF FACTS

On September 7, 1977, a stipulation and agreement to

submit the cause for trial on stipulated to and agreed upon

facts was entered into between the United States Govern-

ment and Petitioners. ‘he complete stipulation is as fol-

lows:

(a) On or about August 13, 1974, at Schaumburg,

Illinois, Daniel Michael Bonnetts stole a 1974 Lincoln

Continental 1V, VIN 4Y89A828487, from the posses-

sion of Merle H. Lahti.

(b) On or about the same date, Daniel Michael

Bonnetts sold the said automobile to Charles Raymond

Jordan for $600.00 in Illinois.

(c) Between August 13, 1974, and March 24, 1975,

Charles Raymond Jordan transported the said auto-

mobile from Lllinois to, among other places, Columbus,

Georgia and thereafter to Chicago, Illinois, where it

was sold by Charles Raymond Jordan to Nicholas

Katinas.

(d) On or about July 9, 1974, at Worth, Illinois,

Daniel Michael Bonnetts stole a 1974 Ford Thunder-

bird, VIN 4J87A133837, from the possession of Norman

Steigert.

(e) On or about July 9, 1974, Daniel Michael Bon-

netts sold the automobile specified in subparagraph

(d) above, to Charles Raymond Jordan in Illinois.

(f{) Between July 9, 1974, and February 13, 1975,

Charles Raymond Jordan transported the automobile

specified in subparagraph (d) above, from Illinois to,

among other places, Columbus, Georgia, and there-

after to Chicago, Illinois where it was sold by Charles

Raymond Jordan to Nicholas Katinas,

(g) On or about February 17, 1975, at Chicago,

Illinois, Daniel Michael Bonnetts stole a 1974 Lincoln

6

Continental Mark IV, VIN 4Y89A835241, from the

possession of David Hussman.

(h) On or about February 17, 1975, Daniel Michael

Bonnetts sold the automobile specified in subparagraph

(g) above, to Charles Raymond Jordan in Illinois,

(i) On or about September 26, 1973, at Chicago,

Illinois, James C. Beil stole a 1973 Ford Thunderbird,

VIN 3J87N191094, from the possession of Eugene

Baer.

(j) On or about September 26, 1973, James C. Beil

sold the automobile specified in subparagraph (i)

above, to Charles Raymond Jordan in Illinois.

(k) Between September 26, 1973, and March 14,

1974, Charles Raymond Jordan arranged for the auto-

mobile specified in subparagraph (i) above, to be

transported to Columbus, Georgia, where it was sold by

Charles Raymond Jordan to Leon Brooks Murdock, a

used car sales person.

(1) On or about July 19, 1975, at Chicago, Illinois,

James C. Beil stole a 1975 Cadillac Eldorado, VIN

6L47S5Q230589 from the possession of Joseph Edward

Rorem.

(m) On or about July 19, 1975, James C, Beil sold

the automobile specified in subparagraph (1) above,

to Charles Raymond Jordan in Illinois.

(n) Between July 19, 1975 and January 13, 1976,

Charles Raymond Jordan transported the automobile

specified in subparagraph (l) above, to Columbus,

Georgia.

(0) Daniel Michael Bonnetts and James C. Beil

understood when they sold the automobiles described

in subparagraphs (a) through (n), inclusive, to Charles

Raymond Jordan that Jordan, acting in concert with

7

others, was planning to dispose of the said automobiles

either by sale or by selling said automobiles as spare

parts.

(p) Although Daniel Michael Bonnetts and James

C. Beil acknowledge the interstate transportation of

the aforedescribed automobiles after they were sold by

Charles Raymond Jordan, neither Daniel Michael Bon-

netts nor James C. Beil knew that the said automo-

biles would be removed from Lllinois by Jordan after

he obtained possession of them. In short, Daniel

Michael Bonnetts and James C. Beil had no knowl-

edge, actual or implied, that any automobile which they

stole and sold to Charles Raymond Jordan would

ever leave Illinois,

REASONS FOR GRANTING THE WRIT

The majority opinion which for the first time in any ‘e-

ported case holds that a completed local intrastate crime

of automobile theft can automatically ripen into a federal

Dyer Act prosecution if the vehicle subsequently moved,

in the hands of others, in interstate commerce despite the

fact that the local thief had not joined in any agreement,

participated in, nor had any knowledge that such inter-

state movement would take place, raises significant and re-

curring problems concerning the appropriate scope of fed-

eral jurisdiction and the due process rights of the crimina]-

ly accused.

The instant petition relates to convictions for conspiracy

to violate the Dyer Act. By its decision, the majovity of

the panel extends the seemingly limitless scope of con-

spiracy law in federal jurisdiction beyond permissible

bounds. After scathing search, Petitioners state that there

simply is no case in federal jurisprudence which, under

similar facts, holds that a completed local intrastate crime

of automobile theft can automatically ripen into a federal

criminal prosecution if the vehicles subsequently move, in

the hands of others, in interstate commerce ; especially when

the Government stipulates that the local thief had not

joined in any agreement, participated in, nor had any

knowledge that such interstate movement would take place.

As dissenting Judge Coleman succinctly noted upon his re-

view of the facts in this case:

What we have here, in my judgment, is an un-

precedented expansion of federal criminal jurisdic-

tion... although the Dyer Act has been on the books

9

for sixty years, I have searched in vain for any case

in the federal jurisprudence which, under similar facts,

holds what the court has held in this case. United

States v. Bei, 577 F.2d 1313, 1321 (5 Cir., 1978)

Through stipulation, the Government conceded that Peti-

tioners’ relationship to the cars in question were that

of local thieves, who stole certain automobiles in Illinois

and, in turn, sold those vehicles to another also in Llinois.

After the sale was completed, however, the arrangement

between Petiti ners and the buyer terminated. According

to the stipulated facts, the buyer then made distinct and

separate arrangements to sell the stolen vehicles in Georgia

several months later. The Government stipulates that at

no time did Petitioners either agree to, participate in or

have any knowledge of the subsequent purchaser’s later

shipment of vehicles in interstate commerce. Nowhere is it

stated that Petitioners knew of any subsequent arrange-

ments, knew the parties to whom the vehicles were to be

sold, or knew that the ultimate buyers lived outside of

Illinois. Moreover, the stipulation does not say that the

purchaser himself knew the automobiles were stolen when

he bought them; nor does it state that said purchaser

knew the automobiles were stolen when he transported

them. Thus, not only do the stipulated facts fail to estab-

lish a Dyer Act violation by Petitioners, but further fail

to establish a Dyer Act violation by anybody. Quite simply,

as stated by Judge Coleman in his dissent, the Government

‘*stipulated itself out of court and... refuses to see it.”’

United States v. Beil, supra, at 1318.

Nevertheless, in its opinion, a majority of the panel

apparently confused what is a simple jurisdictional element

10

of a Dyer Act violation, interstate transportation, with what

is an indispensable albeit here absent element of the con-

spiracy conviction, that being the Petitioners’ knowledge

of, agreement to and participation in a specific act. As

Petitioners were charged with Dyer Act violations, and as

the Dyer Act requires interstate movement of automobiles,

the Government of necessity had the burden of proving that

Petitioners knew of the conspiracy to transport stolen

automobiles in interstate commerce, agreed to that con-

spiracy and participated in it.

Yet, in the face of this requirement, the Government con-

ceded that Petitioners did not agree to nor did they have

any knowledge of this conspiracy. The mere fact that the

automobiles eventually moved in interstate commerce does

in no way establish that Petitioners conspired to have them

moved. Thus, the reliance by the majority of the panel on

the case of United States v. Feola, 420 U.S, 671 (1975), and

the three opinions from the Fifth and Ninth Circuits is

misplaced. See Overton v. United States, 405 F.2d 168 (5

Cir., 1968) ; Bibbins v. United States, 400 F.2d 544 (9 Cir.,

1968); United States v, Doolittle, 507 F.2d 1368 (5 Cir.,

1975).

All of the above cited cases are distinguishable from the

facts of the instant case in one fundamental respect. In all

cases mentioned above, the interstate movement that is an

element of the offense had either already occurred before

the defendant’s involvement in the offense; or, alternative-

ly, defendant was himself involved in the actual movement

or planning of movement in interstate commerce,

Thus, in Overton v. United States, supra, the automobile

had already been transported in interstate commerce.

Overton was convicted of the receiving of an automobile

knowing that it had been stolen. Accordingly, future

movement was not involved in that case.

11

In Bibbins v. United States, supra, the defendant himself

had driven the automobile across the state line, although he

did not know he had actually crossed it.

In United States v, Doolittle, swpra, the Fifth Circuit

was concerned with the validity of a wiretap in a prosecu-

tion for conspiracy to use interstate wire and telephone

facilities in furtherance of illegal gambling operations. As

such, interstate activity was inherent in the agreement.

Finally, in United States v. Feola, supra, the existence

of a conspiracy at a time prior to the commission of a sub-

stantive offense and the defendant’s involvement in that

conspiracy was well established. Again, Judge Coleman’s

statements are instructive in this regard:

The jurisdictional fact in Feola was a matter of

status, not a matter of action. The person assaulted

was a federal oflicer. What the defendant did or did

not do could not have changed that. They did not have

to do anything to confer jurisdiction. Like Mount

Everest, it was there—and had been all the time.

The Dyer Act is a different matter. Before juris-

diction attaches there must be action, i.e., someone

must transport the vheicle across the state line.

In Feola, the defendants did not have to know that

their intended victim was a federal officer if they in-

tended, in any event, to assault him. In Dyer Act

cases, by command of the statute, knowledge is an in-

dispensable ingredient. One may transport a stolen

automobile across the state line a thousand times, which

is enough to confer ordinary interstate jurisdiction, and

yet not violate the criminal statute unless he knows

the vehicle was stolen. In Dyer Act cases there must

be more than status; there must be knowing action, 18

U.S.C. $2112, United States v. Beil, supra, at 1321

12

Distinguished from the above cases, this case involves

interstate transportation by other individuals as much as

six months after Petitioners’ local intrastate theft of the

vehicles. Petitioners simply had no relationship to the con-

spiracy to transnort those vehicles across state lines and,

as such, may not properly be convicted beyond a reasonable

doubt of that crime.

Yet, the Court of Appeals in this case seeks to expand

the conspiracy-complicity doctrine as it relates to the Dyer

Act so as to read into this doctrine a ‘‘ will move’’ analysis

where a defendant van be held accountable in federal court

for the future interstate movement of any article stolen

by anyone else, when the local thief has no knowledge of, or

for purposes of conspiracy, has never agreed to or partici-

pated in the interstate movement done by another. While

the analysis by the majority below seeks to hold the local

car thief susceptible to federal criminal prosecution for

interstate movement by the apparent reasonable foresee-

ability of such movement, such analysis has already been

rejected by the Ninth Circuit in United States v. Berlin, 472

F.2d 13 (9 Cir., 1973), wherein the Court stated:

The United States contends for a rule that sale of a

ear (known by the seller to be stolen), followed by

interstate transportation by an innocent purchaser con-

stitutes a violation of the Dyer Act by the seller where

the interstate transportation is reasonable foreseeable.

(emphasis added)

We agree with Appellants that this rule is too broad.

Since interstate automobile transportation is now com-

monplace, this construction would seem to render every

sale of a stolen car a federal offense. Title 18, See.

2(b), does, as Appellants contend, have overtones of

agency, and, in our judgment, the wilful causation to

which it refers must be purposeful rather than based

simply upon reasonable foreseeability. (emphasis

added)

13

Moreover, the ‘‘will move’’ analysis of the majority be-

low is misplaced when one looks at the specific statutory

language of Title 18, U.S.C., $2312 and $2313. These sec-

tions contemplate either previous or ongoing movement in

interstate commerce rather than local illegal activities

which occurred well before any contemplated or actual

movement in interstate commerce. Thus, Title 18, U.S.C.,

$2312 uses the word transports in the present tense:

Whoever transports in interstate commerce or

foreign commerce a motor vehicle or aircraft...

Similarly, Title 18, U.S.C., $2313, clearly denotes present

tense when it states in pertinent part:

Whoever receives, conceals, stores, barters, sells, or

disposes of any motor vehicle .. , moving as, or which

is part of, or which constitutes interstate or foreign

commerce ... (emphasis added)

From a reading of these sections, there is absent any in-

dication that they have application to mere intrastate car

theft by a defendant who had no possible expectation of

any later movement of stolen goods in interstate commerce.

Rather, the clear intent of these statutory sections is to

proscribe interstate movement of motor vehicles; vehicles

that are presently, or have previously moved in interstate

commerce. Here, not even a reasonable foreseeability analy-

sis would extend to Petitioners since the facts, as stipulated

by the Government, state that Petitioners lack even implied

knowledge of any future interstate movement.

Finally, the decision of the majority below establishes an

extremely dangerous precedent. By holding that a com-

pleted local car theft can automatically become a matter of

federal criminal prosecution under these circumstances,

14

the majority opinion below would, for example, subject

a local car thief in Illinois to a federal prosecution in Alaska

should it happen that the stolen vehicle subsequently moved,

in the hands of another, in interstate commerce evel years

later, despite the fact that the local thief had completely

terminated his relationship to that vehicle and had ab-

solutely no knowledge of, agreement to or participation in

the subsequent movement. The Criminal Code of the State

of Illinois plainly proscribes auto theft under its theft pro-

visions. It is both needless and senseless to extend fed-

eral jurisdiction to encompass such activity.

CONCLUSION

For all the foregoing reasons, Petition for Writ of Cer-

tiorari should be allowed to review the instant decision of

the Court of Appeals for the Fifth Circuit.

Respectfully submitted,

Epwarp M. Grenson

JEFFREY B. STEINBACK

Attorneys for Petitioners

Of Counsel: .

Marvin I. Bioom

APPENDIX

APPENDIX A

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V,

JAMES C. BEIL and DANIEL MICHAEL BONNETTS,

Defendants-Appellants.

No, 77-5629.

United States Court of Appeals, Fifth Circuit.

Aug. 11, 1978.

Defendants were convicted in the United States District

Court for the Middle District of Georgia, J. Robert Elliott,

Chief Judge, of conspiring to violate the Dyer Act, and

they appealed. The Court of Appeals, Ainsworth, Circuit

Judge, held that: (1) it was not necessary for the Govern-

ment to prove that defendants actually knew, when they

sold certain stolen automobiles, that the automobile had

moved or would move in interstate commerce; (2) conten-

tions as to the lack of any agreement with the buyer and

as to defendants’ alleged lack of knowledge of the buyer’s

later sales in interstate commerce were refuted by the

stipulated facts, and (3) defendants did not establish that

they suffered any prejudice as the result of a possible

variance between the two conspiracies allegedly proved at

trial and the single conspiracy charged in the indictment.

Convictions affirmed.

Coleman, Cireuit Judge, dissented and filed opinion.

App. 2

AINSWORTH, Circuit Judge:

Defendants James C. Beil and Daniel Michael Bonnetts

were convicted following a bench trial of conspiring under

18 U.S.C. § 371 to violate the Dyer Act, 18 U.S.C. $§ 2312,

2313.! The district court sentenced each to three years’

imprisonment. In this appeal the defendants challenge

the validity of their convictions on two grounds, neither

of which we find meritorious. Accordingly, we affirm the

convictions.

The facts in this case are stipulated and fully set forth

as Appendix A. These facts demonstrate that between

September 26, 1973 and July 19, 1975, defendant Beil stole

118 U.S.C. § 371 provides:

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or

any agency thereof in any manner or for any purpose, and one

or more of such persons do any act to effect the object of the

conspiracy, each shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of which is the object

of the conspiracy, is a misdemeanor only, the punishment for

such conspiracy shall not exceed the maximum punishment

provided for such misdemeanor.

18 U.S.C. § 2312 provides:

Whoever transports in interstate or foreign commerce a motor

vehicle or aircraft, knowing the same to have been stolen, shall

be fined not more than $5,000 or imprisoned not more than five

years, or both.

18 U.S.C. § 2313 provides:

Whoever receives, conceals, stores, barters, sells, or disposes

of any motor vehicle or aircraft, moving as, or which is a part

of, or which constitutes interstate or foreign commerce, knowing

the same to have been stolen, shall be fined not more than $5,000

or imprisoned not more than five years, or both.

App. 3

two automobiles in Illinois and sold them in Illinois to

Charles Raymond Jordan, who then transported them to

Columbus, Georgia, and sold at least one of them to Leon

Brooks Murdock. Between July 9, 1974 and February 17,

1975, defendant Bonnetts stole three automobiles in Illinois

and sold them in Illinois to Charles Raymond Jordan, who

then transported at least two of them to Columbus, Georgia

and thereafter back to Chicago, Illinois, where he sold

them to Nicholas Katinas.

Beil and Bonnetts contend first that the district court

erred in not granting their motion for judgment of acquit-

tal, because even though the automobiles they admittedly

stole did move in interstate commerce after the theft, the

Government failed to prove that the defendants actually

knew the automobiles would move in interstate commerce

when they sold the cars to Jordan. According to Beil and

Zonnetts, such knowledge is an cssential element of the

otfense of conspiring to violate the Dyer Act. We disagree.

[1,2] By the language itself of the Dyer Act, set forth

in footnote 1, the only knowledge required by the statute

is that the property was stolen. Knowledge that the prop-

erty has moved or will move in interstate commerce is not

an element of the offense. See, e. g., Overton v. United

States, 5 Cir., 1968, 405 F.2d 168; Bibbins v. United States,

9 Cir., 1968, 400 F.2d 544. Cf. United States v. Doolittle,

5 Cir., 507 F.2d 1368, 1372, aff’d en banc, 5 Cir., 518 F.2d

500, cert. denied, 423 U.S. 1008, 96 S.Ct. 489, 46 L.Ed.2d

380 (1975) (18 U.S.C. § 1952). Beil and Bonnetts were not

charged with violating the Dyer Act itself, however, but

with conspiring to violate it under the general conspiracy

statute, 18 U.S.C.$ 371. It is clarion clear that ‘‘in order

to sustain a judgment of conviction on a charge of con-

spiracy to violate a federal statute, the Government must

App. 4

prove at least the degree of criminal intent necessary for

the substantive offense itself.’’ United States v. Feola,

420 U.S. 671, 686, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975).

In this respect the Government’s task was not difficult;

both defendants knew that the automobiles sold to Jordan

were stolen because they themselves were the admitted

thieves. The only remaining question, therefore, is whether

conspiracy to violate the Dyer Act requires more—in this

case that the defendants knew that the cars would move in

interstate commerce,

[3] In United States v. Feola, supra, the Supreme Court

held that knowledge that the intended victim is a federal

officer is not a requisite for the crime of conspiracy under

18 U.S.C. § 371 to violate 18 U.S.C, § 111, which prohibits

an assault upon a federal officer while he is engaged in the

performance of his official duties. The Court found first

that in order to incur criminal liability under 18 U.S.C.

$ 111, an assailant need not be aware that his victim is

a federal officer. 420 U.S. at 684, 95 S.Ct. at 1264. The

Court then rejected the defendant’s argument that con-

viction of conspiracy under 18 U.S.C. § 871 to violate

Section 111 requires such an awareness, because, found

the Court, the two values underlying the law of conspiracy

would not be served thereby. The first of Uiese values is

the protection of society from the dangers of concerted

criminal conduct. The Court stated ‘‘[t]hat individuals

know that their planned joint venture violates federal as

well as state law seems totally irrelevant to that purpose

of conspiracy law which seeks to protect society from the

dangers of concerted criminal activity.’’ 420 U.S. at 698,

95 S.Ct. at 1268. The second value underlying the law of

conspiracy pertains to the fact that conspiracy is an in-

choate crime. At some point between preparation and con-

summation of a crime, the likelihood that the crime will be

oe me ee ee ——

te a re oR

a i

App. 5

committed is sufficiently great and the criminal intent is

sufficiently formed to justify intervention of the criminal

law. The law of conspiracy protects society by defining

this point of intervention.’ In this regard the Court stated:

Again, we do not see how imposition of a strict ‘‘anti-

federal’? scienter requirement would relate to this

purpose of conspiracy law. Given the level of intent

needed to carry out the substantive offense, we fail to

see how the agreement is any less blameworthy or con-

stitutes less of a danger to society solely because the

participants are unaware which body of law they in-

tend to violate. Therefore, we again conclude that im-

position of a requirement of knowledge of those facts

that serve only to establish federal jurisdiction would

render it more difficult to serve the policy behind the

law of conspiracy without serving any other apparent

social policy.

420 U.S. at 694, 95 S.Ct. at 1268-69.

[4] Following the Supreme Court’s lead in Feola, we

find with respect to the Dyer Act that the two values un-

derlying the law of conspiracy would not be served by re-

quiring that those who conspire to violate the Act know

that stolen vehicles will move or have moved in interstate

commerce in order to incur criminal liability. This result

is consistent with our holding in United States v. Muncy,

5 Cir., 1976, 526 F.2d 1261, There the trial court instructed

the jury that knowledge that the stolen property had moved

* The law of conspiracy identifies the agreement to engage in a

criminal venture as an event of sufficient threat to social order to

permit the imposition of criminal sanctions for the agreement

alone, plus an overt act in pursuit of it, regardless of whether

the crime agreed upon actually is committed,

420 U.S. at 694, 95 S.Ct. at 1268.

App. 6

in interstate commerce was not an essential element of the

offense of conspiring to violate 18 U.S.C. § 2315, which

provides in pertinent part:

Whoever receives, conceals, stores, barters, sells, or

disposes of any goods, wares, or merchandise, securi-

ties, or money of the value of $5,000 or more, or pledges

or accepts as security for a loan any goods, wares, or

merchandise, or securities, of the value of $500 or

more, moving as, or which are a part of, or which

constitute interstate or foreign commerce, knowing the

same to have been stolen, unlawfully converted, or

taken... [shall be fined not more than $10,000 or

imprisoned not more than ten years, or both.

We found no error in the district court’s instruction be-

cause ‘‘knowledge of jurisdictional facts is not required in

determining guilt of either the substantive offense or the

conspiracy offense.’’ 526 F.2d at 1264." Moreover, in United

States v. Kelly, 5 Cir., 1978, 569 F.2d 928, 934, this Court

held that ‘‘[k]nowledge or foreseeability of a victim’s trav-

el in interstate commerce’’ need not be proven when the

defendant was charged with causing and conspiring to cause

a person to travel in interstate commerce in execution of

a scheme to defraud in violation of 18 U.S.C, $$ 2, 371, and

2314. See United States v. Greer, 7 Cir, 1972, 467 F.2d

1064, 1071-72, cert. denied, 410 U.S, 929, 93 S.Ct. 1364, 35

L.Ed.2d 590 (1973); Gurleski v. United States, 5 Cir., 1968,

405 F.2d 253, 268-69, cert. denied, 395 U.S. 981, 89 S.Ct.

2140, 23 L.Ed.2d 769 (1969). The defendants’ contention

is therefore without merit.

‘The defendants attempt to distinguish Muncy by pointing out

that there the defendant's conduct occurred after the interstate move-

ment while in this case the defendants’ conduct occurred before the

interstate movement. We view that as a distinction without a dif-

ference.

App. 7

Beil and Bonnetts next contend that there was insufficient

evidence to convict them of a conspiracy. Beil contends

that the Government failed to show that he had any agree-

ment with Jordan, and Beil and Bonnetts together contend

that the Government failed to show that they had any agree-

ment with each other, that they had knowledge of each

other’s dealings with Jordan, or that they had knowledge

of Jordan’s later dealings in interstate commerce with Mur-

dock and Katinas,

[5, 6] In considering claims of insufficient evidence,

this Court must examine the evidence in the light most

favorable to the Government. Glasser v, United States, 315

U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United

States v. Cadillac Overall Supply Co., 5 Cir., 1978, 568 F.2d

1078, 1080, 1084 (bench trial). Beils’ contention that he

had no agreement with Jordan and both defendants’ con-

tention that they had no knowledge of Jordan’s later sales

in interstate commerce are refuted by the stipulated facts,

which provide that both Beil and Bonnetts ‘‘understood

when they sold the automobiles ... to Charles Raymond

Jordan that Jordan, acting in concert with others, was plan-

ning to dispose of the said automobiles either by sale or by

selling said automobiles as spare parts.’’* Although Beil

and Bonnetts do not expressly so state, it appears that their

other contentions—that they had no agreement with each

other and that they had no knowledge of each other’s deal-

ings with Jordan—amount to the argument that there was

no single conspiracy. Thus, according to the defendants,

although the Government proved individual conspiracies

between Beil and Jordan and Bonnetts and Jordan, the

4 As we have already held it was not necessary for the Government

to prove that the defendants knew the stolen cars would move in

interstate commerce,

App. 8

Government allegedly did not prove a single conspiracy

among Beil, Bonnetts, and Jordan, which was the type of

conspiratorial conduct alleged in the indictment.

{[7] We recently addressed a similar contention in

United States v. Baldarrama, 5 Cir., 1978, 566 F.2d 560. We

rejected the Baldarrama defendants’ contention on two

grounds, the second of which is dispositive of the defen-

dants’ contention in the instant case. After noting that

‘*{vjariance from the indictment is not always prejudicial,

nor is prejudice assumed,’’ 566 F.2d at 566, citing, e. g.,

Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630,

79 L.Ed. 1314 (1935), we found in Baldarrama that the

‘*defendants completely failed to demonstrate any preju-

dice arising out of a possible variance between the offenses

proved at trial [allegedly the separate conspiracies] and

those charged in the indictment [the single conspiracy ].’’

566 F.2d at 566. In this regard the Baldarrama defendants

relied on United States v. Levine, 5 Cir., 1977, 546 F.2d 658,

where the Court found improper joinder of defendants

under Fed.R.Crim.P. 8(b), but none of the Baldarrama de-

fendants asserted any prejudicial joinder in their case.

Moreover, ‘‘the nature of the case was such that the jury

could not easily have been confused and failed to consider

individual guilt.’’ 566 F.2d at 566-67. Similarly, in this

ease defendants Beil and Bonnetts also have shown no

prejudice resulting from a possible variance between the

two conspiracies allegedly proved at trial and the single

conspiracy charged in the indictment. Like the Baldarrama

defendants, the defendants here do not assert prejudicial

joinder, and the possibility of jury confusion is nonexistent

because Beil and Bonnetts were tried before the court. Ac-

cordingly, their claim is meritless.

Having considered each of the defendants’ contentions

and finding no error, their convictions are

AFFIRMED.

App. 9

APPENDIX A

(a) On or about August 18, 1974, at Schaumburg, Illi-

nois, Daniel Michael Bonnetts stole a 1974 Lincoln Conti-

nental IV, VIN 4Y89A828487, from the possession of Merle

H. Lahti.

(b) On or about the same date, Daniel Michael Bonnetts

sold the said automobile to Charles Raymond Jordan for

$600.00 in Illinois.

(c) Between August 13, 1974, and March 24, 1975,

Charles Raymond Jordan transported the said automobile

from Illinois to, among other places, Columbus, Georgia

and thereafter to Chicago, Illinois, where it was sold by

Charles Raymond Jordan to Nicholas Katinas.

(d) On or about July 9, 1974, at Worth, Illinois, Daniel

Michael Bonnetts stole a 1974 Ford Thunderbird, VIN

4J87A133837, from the possession of Norman Steigert.

(e) On or about July 9, 1974, Daniel Michael Bonnetts

sold the automobile specified in subparagraph (d), above,

to Charles Raymond Jordan in Illinois.

(f) Between July 9, 1974, and February 13, 1975, Charles

Raymond Jordan transported the automobile specified in

subparagraph (d), above, from Illinois to, among other

places, Columbus, Georgia and thereafter to Chicago, Illi-

nois where it was sold by Charles Raymond Jordan to

Nicholas Katinas.

(g) On or about February 17, 1975, at Chicago, Illinois,

Daniel Michael Bonnetts stole a 1974 Lincoln Continental

Mark IV, VIN 4Y89A835241, from the possession of David

Hussman.

(h) On or about February 17, 1975, Daniel Michael

Bonnetts sold the automobile specified in subparagraph

(g), above, to Charles Raymond Jordan in Illinois.

App. 10

(i) On or about September 26, 1973, at Chicago, Illinois,

James C. Beil stole a 1973 Ford Thunderbird, VIN 3J87N

191094, from the possession of Eugene Baer.

(j) On or about September 26, 1973, James C. Beil sold

the automobile specified in subparagraph (i), above, to

Charles Raymond Jordan in Illinois.

(k) Between September 26, 1973, and March 14, 1974,

Charles Raymond Jordan arranged for the automobile spe-

cified in subparagraph (i), above, to be transported to Co-

lumbus, Georgia where it was sold by Charles Raymond

Jordan to Leon Brooks Murdock, a used car sales person.

(1) On or about July 19, 1975, at Chicago, Illinois, James

C. Beil stole a 1975 Cadillac Elderado, VIN 6L47S5Q230589

from the possession of Joseph Edward Rorem.

(m) On or about July 19, 1975, James C. Beil sold the

automobile specified in subparagraph (1), above, to Charles

Raymond Jordan in Illinois.

(n) Between July 19, 1975 and January 13, 1976, Charles

Raymond Jordan transported the automobile specified in

subparagraph (1), above, to Columbus, Georgia.

(0) Daniel Michael Bonnetts and James C. Beil under-

stood when they sold the automobiles described in sub-

paragraphs (a) through (n), inclusive, to Charles Raymond

Jordan that Jordan, acting in concert with others, was

planning to dispose of the said automobiles either by sale

or by selling said automobiles as spare parts.

(p) Although Daniel Michael Bonnetts and James C.

Beil acknowledge the interstate transportation of the afore-

described automobiles after they were sold to Charles Ray-

mond Jordan, neither Daniel Michael Bonnetts nor James

C. Beil knew that the said automobiles would be removed

App. 11

from Illinois by Jordan after he obtained possession of

them. In short, Daniel Michael Bonnetts and James C. Beil

had no knowledge, actual or implied, that any automobile

which they stole and sold to Charles Raymond Jordan

would ever leave Illinois.

COLEMAN, Cireuit Judge, dissenting.

With all deference to the views of my Brethren, I cannot

concur in the foregoing opinion.

The stipulated facts wholly failed to establish the con-

spiracy charged in the indictment.

Under the facts of this case, I find no congressional en-

actment or clear judicial precedent which would transmog-

rify a local theft and a local sale of the stolen goods into

an interstate offense.

Consequently, I would reverse the convictions.

I

The Stipulated Facts do not Support the

Conspiracy Charge

The trouble with this case is that the defendants were

uot prosecuted for a violation of the Dyer Act. They were

prosecuted for a conspiracy. ‘he essential elements of the

two offenses are different; the requisite proof is not the

same.

Conspiracies involve action to be taken in the future.

One cannot conspire to do something which has already

been done. By its very terms the indictment charged that

these defendants conspired to commit a specific act. What

was that act? It was to transport automobiles in interstate

commerce, knowing them to have been stolen.

App. 12

The stipulated facts are that the defendants had neither

express nor implied knowledge that the local purchaser

would later move the automobiles across state lines. The

stipulation does not say that the subsequent interstate

transportation by the purchaser occurred by or with the

conspiratorial knowledge, intent, purpose, agreement, or

participation of the appellants. These appellants stole the

automobiles in Illinois and sold them in Illinois, clearly a

local crime. Sometime later, maybe six months later, the

local purchaser transported the vehicles across state lines.

The astounding thing is that the stipulation does not say

that the purchaser knew the automobiles were stolen when

he bought them; it does not say that he knew the automo-

biles were stolen when he transported them. Hence, an in-

dispensable element of a Dyer Act violation by the pur-

chaser is totally lacking.

These appellants are entitled to the presumption of in-

nocence and, most assuredly, may not be convicted unless

the government establishes the essential allegations of its

indictment. It inexorably follows that there has been a

total lack of proof in this case and these convictions should

not be allowed to stand.

The majority holds that these fatal deficiencies were

cured, post hoc, ergo propter hoc, by proof that the auto-

mobiles crossed state lines, ordinarily nothing more than

a jurisdictional fact in a completed Dyer Act violation. The

trouble with this analysis is that the stipulated facts do

not establish a Dyer Act violatior by anybody. This being

so, the application of what could have been a jurisdictional

fact in an appropriate case simply cannot infuse life into a

body where life had never existed.

This is more cogently so when we realize that what we

have here is an effort to use a jurisdictional fact applicable

App. 13

to one type of case (interstate transportation of a stolen

vehicle, known to be stolen) to serve as proof of an entirely

different but indispensable, element of a conspiracy case

(knowledge of a conspiracy, agreement to participate in it,

and some act in furtherance of it).

As I commented from the Bench at oral argument, the

government simply stipulated itself out of Court and, up

to and through oral argument, refuses to see it.

Without further ado, I might stop here. But there is

more which ought to be said.

The government had to show that a conspiracy eaisted,

that the defendants knew of the conspiracy, and that know-

ing of it they agreed to it and participated in it, see, e. g.,

United States v. Dyar, 5 Cir., 1978, 574 F.2d 1385.

As the record shows, on a Rule 20 transfer, these defen-

dants attempted to plead guilty before Judge John F.

Grady in the Northern District of Illinois. At the plea

hearing, the Judge refused to accept the plea. He stated,

Well, I am sure that for a conspiracy to violate this

statute, the element of the knowledge of the interstate

transportation is required. At least the defendant

would have to be on notice of facts from which that

transportation would be readily inferable. That is the

very least. (Emphasis added).

I think Judge Grady was right.

He remanded the ease to the Middle District of Georgia,

where the indictment had been returned.

When the case got back to Georgia the government and

the defendants entered into the stated stipulation. Then

the United States Attorney took the following position:

Your Honor, of course the Government is taking the

position that the stipulated facts show that both defen-

dants participated in a conspiracy. (Emphasis mine).

App. 14

In all due respect, this is incredible. The stipulation

neither mentions nor describes a conspiracy with anybody

—quite to the contrary, the stipulation specifies that defen-

dants had no knowledge, actual or implied, that the vehicles

would ever leave the State of Illinois. If they had no such

knowledge how, beyond a reasonable doubt, could they have

agreed to, or participated in, the transportation interstate?

II

This Conviction is Not Supported by Congressional

Enactment or Judicial Precedent

A.

The majority says that although the vehicles were stolen

and sold in Illinois, a completed state offense, and although

the defendants had no joint purpose, agreement, know!]-

edge, or connection as to the subsequent occurrences, they

were nevertheless guilty of a conspiracy to violate the Dyer

Act where, sometime within the ensuing six months, the

vehicles were transported by others in interstate commerce

without a showing that the transporters knew the vehicles

were stolen,

The majority begins its analysis by saying that in Dyer

Act prosecutions ‘‘[K Jnowledge that the property... will

move in interstate commerce is not an element of the of-

fense’’, citing three cases.

Let us look at the cases cited by the majority. In Overton

v. United States, 5 Cir. 1968, 405 F.2d 168, the automobile

had already been transported in interstate commerce. Over-

ton was convicted of receiving it, knowing it to have been

stolen, 18 U.S.C. § 2312. ‘‘ Will move’’ was not in the ease.

In Bibbins v. United States, 9 Cir. 1968, 400 F.2d 544, the

defendant hiraself had driven the automobile across a state

line, although he did not know he had actually crossed it.

NN LL CC

App. 15

United States v. Doolittle, 5 Cir. 1975, 507 F.2d 1368,

affirmed en banc, 518 F.2d 500, was really concerned with

the validity of a wire tap in a prosecution for conspiracy

to use interstate wire and telephone facilities to carry on

illegal gambling operations. Interstate activity was inher-

ent in the agreement.

Finally, the Dyer Act, 18 U.S.C. § 2312, says, ‘‘whoever

transports’’. The vehicle must first be stolen, as here, and,

with knowledge of that fact, the vehicle must thereafter be

transported.

I must disagree with this ‘‘will move’’ theory.

If the vehicle is stolen, if the defendant knows it, and

the vehicle ‘‘will move’’, then, depending on the specific

circumstances, the applicable statute would be 18 U.S.C.

§ 2:

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal.

The record reflects, of course, that this prosecution was

in no way grounded on 18 U.S.C. § 2, as indeed it could not

have been because the stipulated facts would not have sup-

ported it.

B.

I think the Ninth Circuit correctly decided the issue now

before us in United States v. Berlin, 9 Cir. 1973, 472 F.2d

13, a prosecution involving the Dyer Act but brought under

18 U.S.C. § 2(b). The Court pointed out that the Dyer Act

deals with stolen tangible personal property, not the use

App. 16

of the mails in the ordinary course of business, or stolen

securities, or forged travelers checks, or the like. I quote:

The United States contends for a rule that sale of a

car (known by the seller to be stolen), followed by in-

terstate transportation by an innocent purchaser con-

stitutes a violation of the Dyer Act by the seller where

the interstate transportation is reasonably foresee-

able, (Emphasis added),

We agree with appellants that this rule is too broad.

Since interstate automobile transportation is now com-

monplace, this construction would seem to render every

sale of a stolen car a federal offense. Section 2(b)

does, as appellants contend, have overtones of agency,

and, in our judgment, the willful causation to which

it refers must be purposeful (emphasis added) rather

than be based simply upon reasonable foreseeability.

®@ ® e

Such is not the case in the ordinary sale of tangible

stolen property. In the ascertainment of purpose and

intent our focus is not on a course of commercial oper-

ations which the very fact of sale dictates will regular-

ly occur. Rather, it is on the interstate transportation

itself. (Omitting the immediately preceding language). °

472 F.2d at 14, 15.

C.

‘The Court says that its views are consistent with United

States v. Muncy, 5 Cir. 1976, 526 F.2d 1261, I disagree. I

sat on that case and concurred in the opinion, which, as the

instruction there attacked clearly reflects, held only that

for jurisdictional purposes the government had to prove

that the beef moved in interstate commerce, that (to quote

the instruction) the government did not have to prove that

‘prior to or after the alleged receipt of such meat, [the

defendants] had knowledge of the fact that the meat had

been transported (emphasis mine) in interstate commerce

....? 526 F.2d at 1264, n.1.

App. 17

The case doves not stand for the proposition that once a

defendant completes a local theft he may thereafter, in the

absence of the requisite purpose or knowledge, be prose-

cuted for conspiracy if perchance (unknown to him) others

put the stolen goods in interstate commerce.

United States vy. Kelly, 5 Cir. 1978, 569 F.2d 928, is simi-

larly inapposite. There, the defendant was charged with

causing and conspiring to cause a person to travel in inter-

state commerce in execution of a scheme to defraud; in

other words, Kelly had acted with knowledge of future

events. That element was completely stipulated owt of this

ease. Of course, the defendants here knew that the buyer

would sell the cars, or parts from them, but that is not

enough. As the Ninth Circuit observed in United States v.

Berlin, supra, the prosecution must be based on a purpose-

ful act. It cannot stand on ‘‘reasonable foreseeability’’.

Ill

United States vy. Feola, 420 U.S. 671, 95

S.Ct. 1255, 43 L.Ed.2d 541

The teachings of United States v. Feola, 420 U.S. 671, 95

S.Ct. 1255, 43 L.Ed.2d 541, are, in my opinion, irrelevant

to the disposition of this case. I have already pointed out

that the stipulation of facts now before us described no

federal offense from which a jurisdictional fact could be

lifted to serve as a crutch for these convictions.

This case is distinguishable from Feola in other respects.

First, the existence of the conspiracy at a time prior to

the commission of the substantive offense was well estab-

lished. It was unsuccessfully argued only that lack of

knowledge that the assaulted individual was a federal offi-

cer provided a defense to the charge brought in the indict-

ment.

App. 18

Second, I can find nothing in Feola which says that a

person may be found guilty of a conspiracy although he

did not know of its existence, or did not agree to partici-

pate in it, or had no joint purpose of furthering it.

Third, the jurisdictional fact in Feola was a matter of

status, not a matter of action. The person assaulted was a

federal officer. What the defendants did or did not do could

not have changed that. They did not have to do anything

to confer jurisdiction. Like Mount Everest, it was there--

and had been all the time.

The Dyer Act is a different matter. Before jurisdiction

attaches there must be action, i. e., someone must transport

the vehicle across a state line.

In Feola the defendants did not have to know that their

intended victim was a federal officer if they intended, in

any event, to assault him. In Dyer Act cases by command

of the statute, knowledge is an indispensable ingredient.

One may transport a stolen automobile across a state line

a thousand times, which is enough to confer ordinary inter-

state jurisdiction, and yet not violate the criminal statute

unless he knows that the vehicle was stolen. In Dyer Act

cases there must be more than status; there must be know-

ing action, 18 U.S.C. § 2112. The defendant must, in an

illegal manner, knowingly be connected with it; he must

have knowingly conspired to have it done, or knowingly

caused it to be done, or knowingly aided and abetted it, or

knowingly done it himself. So, both under the terms of

the statute and under the stipulated facts in this case, it

is my view that interstate transportation is something more

than jurisdictional in a Dyer Act case. It is an element of

the crime itself.

Of course, under 18 U.S.C. § 2113, dealing with receipt,

concealment, etc., after the fact, interstate transportation

|

App. 19

is merely jurisdictional if the defendant knew of the stolen

character of the vehicle. But § 2113 does not fit the facts

in our case,

IV

On what should be sound federal judicial policy 1 must

also disagree with this decision. If there is anything the

federal courts do not need it is more jurisdiction and more

cases. These confessed local car thieves were clearly guilty

of a completed local crime. There is no reason why Illinois

could not have promptly made them involuntary residents

at Joliet. What we have here, in my judgment, is an un-

precedented expansion of federal criminal jurisdiction.

Henceforth, in the Fifth Cireuit, the completed state crime

of automobile theft can automatically ripen into a matter

of federal criminal prosecution if the vehicles subsequently

move, in the hands of others, in interstate commerce, even

though the local thief had not joined in any agreement or

purpose that such should take place and even though there

is no showing that the transporter knew of the stolen char-

acter of the vehicles.

Conclusion

Although the Dyer Act has been on the books for sixty

years, I have searched in vain for any case in the federal

jurisprudence which, under similar facts, holds what the

Court has held in this case.

I must respectfully dissent.

App. 20

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-5629

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES C. BEIL and

DANIEL MICHAEL BONNETTS,

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Georgia

ON PETITIONS FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion 8/11/78, 5 Cir., 197...., .............. IPN -occscealls

(November 8, 1978)

Before Coleman, Ainsworth and Vance, Circuit Judges.

Per Curiam:

The Petitions for Rehearing are Denied and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who are

in regular active service not having voted in favor of it,

(Rule 35 Federal Rules of Appellate Procedure; Local

Fifth Cireuit Rule 12) the Petition for Rehearing En Bane

is also Denied.

Entered For The Court:

/s/ Robert A. Ainsworth, Jr.

United States Cireuit Judge

App. 21

Coleman, Circuit Judge, Dissenting:

By a seven-seven tie vote of the fourteen Judges pres-

ently in active service, rehearing en banc has been denied.

For the reasons set forth in my dissent to the original

panel opinion, I respectfully dissent to the denial of the

petition for rehearing en banc.