# Petition — Marino v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 825

## Text

Office -Supreme Court, U.S.
FilLED

80-1950 MAY 18 1981

ALEXANDiWN L. STEVAS,

=GEERK

in Ghe
Supreme Court of the United States

OCTOBER TERM 1980
VINCENT E. MARINO, Petitioner
Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

HAROLD R. TYLER, JR.
FREDERICK T. DAvis

Attorneys for Vincent E. Marino
30 Rockefeller Plaza

New York, New York 10112
(212) 541-4000

Of Counsel:
Lesuie C. LEVIN

PATTERSON, BELKNAP, WEBB & TYLER
30 Rockefeller Plaza
New York, New York 10112

Question Presented

Whether, in a prosecution under 18 U.S.C. § 660, which
separately requires that the victim of an embezzlement be a
“corporation engaged in commerce as a common carrier” and
further that the embezzled funds arise or accrue from, or be
used in, interstate commerce, the Government met its burden
by alleging and proving only one of the two jurisdictional
requirements.

TABLE OF CONTENTS

oo Br error rt ye ee
TOU OE FIIs 6.6 0 vies ciivesccweeseceeneeee
RI DE ins os awbiacdecesancvaseereine eat
PUT 666.6 che i5 bs aKb Cie eeeka eee

B. The Indictment, The Trial and The Couri of
Ag GR iis vsvacsccernagaxenen

ae Pe rere
2. Pre-Trial Proceedings and Trial.......
3. The Court of Appeals’ Opinion .......
REASONS FOR GRANTING THE WRIT..............

I. The Decision of the Panel Is Plainly
PRC Py csvasicdvsvdedexeceeaseneees

A. The Statutory Language ............
B. The Legislative History .............
C. The Canons of Interpretation........

II. The Decision in This Case Conflicts With
the Practice in Every Other District That
Flas Used Section 660 ......ccccccccees

III. The Panel’s Decision Creates an Unwise
and Unintended Policy in the Administra-
tion of the Federal Criminal Laws.......

PAGE

I a kee ee gs ee re 22
APPENDIX

Opinion of the United States Court of Appeals in
United States v. Vincent E. Marino, review of

ey eS 6s 60k 5 00 or ioe ve kee a bsaees A-l
Judgment of United States Court of Appeals filed
PE AOE NE oho vinss cee seeaee kines s A-19

Order of United States Court of Appeais Deny-
ing Petition for Rehearing ana Suggestion of
Rehearing En Banc, filed March 18, 1981... A-20

Sp OEE Guns ls bbe bonstcraweens acne A-21
Redacted Indictment Submitted to Jury in
United States v. Vincent E. Marino ........ A-22

Other Indictments in Which Section 660 has
ENS G50 dos sR kebes bivece owas eas A-27

TABLE OF AUTHORITIES
CASES
Adamo Wrecking Co. v. United States, 434 U.S. 275
RR PR Pe Bec kan Ai ath ere ARIE ea Se Kei
Chimel v. California, 395 U.S. 752 (1969).......
Hamling v. United States, 418 U.S. 87 (1974) ...

Houston, East and West Texas Railway v. United
OED, Bae AP Oe COPORD oa va veces ve-eces

Montclair v. Ramsdell, 107 U.S. 147 (1883).....
Perrin v. United States, 444 U.S. 37 (1979)......
Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ...
Rewis v. United States, 401 U.S. 808 (1971).....
Russell v. United States, 369 U.S. 749 (1962) ...

Schwegmann Bros. v. Calvert Corp., 341 U.S. 384
UE Ceca e canter anaes ce cers s Tue unedck ats

Simpson v. United States, 435 U.S. 6 (1978).....
United States v. Bass, 404 U.S. 336 (1971)......
United States v. Camp, 541 F.2d 737 (8th Cir. 1976)

United States v. Chestnut, 533 F.2d 40 (2d Cir),
cert. denied, 429 U.S. 829 (1976).............

United States v. Cook, 384 U.S. 257 (1966) .....
United States v. Corey, 566 F.2d 429 (2d Cir. 1977)
United States v. Debrow, 346 U.S. 374 (1953) ...
United States v. Gregg, 612 F.2d 43 (2d Cir. 1979)

United States v. Kimball, 441 F.2d 505 (10th Cir.
SE deus bodice waren eb scenee bei ceekhemey.s

ky PEPPEECEET ETC E LOOT TEU CL ee

United States v. Marino, 639 F.2d 882 (2d Cir.
| RARE ea Margery ee en ee par

PAGE

14
13
15

5, 11
13
20
13
14
15

12
14
13,14
15

15
16
20
15
19

16, 17
19

passim

CASES PAGE
United States v. McGee, 242 F.2d 520 (7th Cir.

he AR A Aes Mee as ten ee eth ecg eat Be Saree 17
Unites States v. Menasche, 348 U.S. 528 (1955).. 13
United States v. O’Brien, 391 U.S. 367 (1968) ... 12
United States v. Queen, 445 F.2d 358 (10th Cir.),

cert. denied, 404 U.S. 1003 (1971)............ 16, 17

United States v. Rabinowitz, 339 U.S. 56 (1950). 13
United States v. Tye, 519 F.2d 586 (10th Cir.), cert.

SE A ME OU CEP TOD oc ccc seceseawesss 17
Whalen v. United States, 445 U.S. 684 (1980) ... 14
STATUTES
| ce mere eee ee passim
aS er 20
et re 20
EE 6k 6c adevd ons0n a0 seen i denesane 20
Pe PU EMO 6 co vsvccccccsseresaenees 13
IMRT CEP cc wscesccecnessseceeevees l
Be Cs BO OD vce ccccccccccscccenevcces 3

OTHER AUTHORITIES

H. Friendly, Benchmarks (1967) .............44. 13
If Sutherland, Statutory Construction (1973)..... 13
L. Tribe, American Constitutional Law (1978) ... 13

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

The Petitioner Vincent E. Marino respectfully
requests that a writ of certiorari issue to review the opinion
and judgment of the United States Court of Appeals for the
Second Circuit entered on January 22, 1981.

OPINION BELOW

The opinion of the Court of Appeals is reported at 639
F.2d 882. It appears in the Appendix hereto at A-1—A-18.*
The District Court filed no opinions on issues raised in this
petition.

JURISDICTION

The judgment of the Court of Appeals was entered on
January 22, 1981. (A-19). On February 5, 1981, Mr.
Marino filed a timely petition for rehearing and a suggestion
of rehearing en banc; the petition and suggestion were denied
on March 18, 1981. (A-20). The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case involved application of 18 U.S.C. § 660. That
section appears at A-21.

STATEMENT OF THE CASE
A. The Facts

Vincent Marino and William O’Donnel were executives
and principal owners of Marine Repair Service, inc., a New
York company that repaired containers, container chassis,
and other equipment used in ship transportation. In 1974 and
1975, Prudential Grace Lines, Inc., a large American flag
carrier engaged exclusively in foreign commerce, needed
extensive modification work on approximately 50 container
chassis.

* Citations to the Appendix to this petition are in the above form.
The Joint A dix in the Court of Appeals is cited as “J.A.”;
references to “Tr.” followed by a date are to the transcript proceedings
on that date; references to “Ex.” are to Government’s Exhibits, which
were included in an exhibit volume on appeal.

2

In August or September, 1974, Keith Nelson, the Director
of Intermodal Operations at Prudential, spoke with Marino at
Marine Repair’s office in Staten Island about reconditioning
or modifying several Prudential container chassis. Shortly
thereafter, Marino reported to Nelson that the modification
of the chassis would cost either $1,995 or $2,450, depending
on the chassis model involved. (J.A. 193). Nelson objected
that the price was too high, to which Marino allegedly
responded by smiling and saying “[g]o see your boss about
it.” Id. Nelson spoke with John Marano, an executive vice
president and director of Prudential. Marano told Nelson
that Marino’s quoted price included $900 kickbacks which
Marano, Nelson and Anthony Scotto would share equally.
(J.A. 195-96; 206).

On various dates between November 1974 and July 1975,
Marine Repair performed modification work on many of
Prudential’s chassis. Nelson testified that whenever approxi-
mately ten chassis had been completed (J.A. 209), Marine
Repair would submit an invoice to Prudential, and Nelson
would approve and expedite payment of the invoices. A check
would issue from Prudential to Marine Repair (Ex. 21-25),
and would be deposited in Marine Repair’s account. (Ex.
26A, 26B, 26C). Thereafter, Nelson allegedly received his
kickback by means of a check made out to Container Sales,
Ltd., a fictitious company which Nelson controlled. (J.A.
218-19).

No witness testified that any part of the illicit scheme
involved interstate commerce, and no document suggests
interstate movement of any sort. Prudential’s offices were
within the City of New York, and its container chassis were
stored in yards in Brooklyn, New York. Marine Repair’s
offices and yards were in Staten Island. (J.A. 172, Tr. 660).
Thus, the chassis repaired by Marine Repair only traveled
between Brooklyn and Staten Island. Furthermore, Pruden-
tial maintained its bank accounts in New York City (J.A.
139); Marino delivered the Marine Repair invoices in person
to Prudential (J.A. 212); and the Prudential checks were
deposited in New York State banks by Marine Repair. (Ex.
26A, 26B and 26C). Similarly, Nelson picked up his

3

“kickback” checks in person in Staten Island. (J.A. 254, 259,
263). In short, the entire process—from the initial com-
munciation between Nelson and Marino, to the transfer of
container chassis from Prudential to Marine Repair, through
the receipt of kickbacks by Nelson—took place completely
within New York State.

B. The Indictment, The Trial and
the Court of Appeals’ Opinion

1. The Indictment. Mr. Marino was originally indicted
on January 17, 1979, in indictment 79 Cr. 32, which charged
him with four misdemeanor violations of the Taft-Hartley
Act, 29 U.S.C. § 186(a). On July 31, 1979, the Government
filed superseding indictment S 79 Cr. 32, which realleged the
same four misdemeanor counts against Mr. Marino, making
other changes not relevant here. On December '!2, 1979, a
third indictment, SS 79 Cr. 32, abandoned the previous Taft-
Hartley violations, and alleged in their stead five counts of
violating 18 U.S.C. § 660 and of conspiracy to do so. One
day later, the Government filed its fourth indictment against
Mr. Marino, SSS 79 Cr. 32, which realleged the Section 660
violations against him and added for the first time co-
defendant William O’Donnel to three of the five counts. The
indictment alleged that the defendants participated in a
scheme to embezzle funds “arising and accruing from, and
used in, in whole and in part, Prudential Lines’ business as a
firm and corporation engaged in commerce as a common
carrier. ...” (A-23).

2. Pre-trial Proceedings and Trial. Prior to trial, the
defendants moved to dismiss the indictment on the ground,
inter alia, that it failed to state a crime under 18 U.S.C. § 660
in that it alleged only one of Section 660’s two interstate
commerce jurisdictional requirements. The trial court denied
the motion without an opinion. Tr. March 5, 1980 at p. 34.

4

At trial Mr. Marino was convicted on all four counts
submitted to the jury.* He was sentenced to a term of one
year and one day on Counts One and Two (to be served
concurrently), and two years of probation on Counts Three
and Four.

3. The Court of Appeals’ Opinion. On appeal to the
United States Court of Appeals for the Second Circuit, Mr.
Marino’s principal claim was that the Government had mis-
interpreted and misapplied the jurisdictional provisions of
Section 660 and had failed to allege and prove the two
separate and independent jurisdictional links to commerce
required by the statute. Specifically, he argued that in addi-
tion to demonstrating that the funds have been embezzled
from a firm engaged as a common carrier in commerce as
required in the first clause of Section 660, the Government
must prove that the purloined funds arose or accrued from or
were used in such commerce, at least in part, as required by
the last clause. For its part, the Government argued that
Section 660 applies to embezzlements from common carriers
whether or not the embezzled funds themselves had any direct
connection with interstate commerce. It.argued that since the
general funds of Prudential derived at least in part from
transactions in commerce, and since Marino participated in a
scheme to embezzle general funds, the jurisdictional require-
ments of the statute were satisfied.

In an opinion dated January 22, 1981, the Second Circuit
panel rejected Marino’s arguments and affirmed the convic-
tion. United States v. Marino, 639 F.2d 882. Describing the
legislative debates relating to Section 660 as at times
“somewhat confused,” the Court found that “[t]he debate
does not support Marino’s position that the funds must be
traced to a specific transaction in interstate commerce.” (A-
10). Instead, it noted that Congress intended the “arising
from” language only to require that embezzlement of funds
have an effect on commerce sufficient to justify federal

* On the Government’s consent, two counts were consolidated into
one at the close of the Government's case. A redacted indictment
(A-22 - A-26) was submitted to the jury.

5

intervention under the Shreveport Rate Case, Houston, East
and West Texas Railway v. United States, 234 U.S. 342
(1914). From this premise, and without citing to any specific
language from the debates, it concluded that “[t]he correct
focus is on the connection between the funds of the com-
mon carrier and foreign or interstate commerce and is not
between the funds and some particular transaction in com-
merce.” (A-10).

As if forgetting this last statement, the Court later
acknowledged that “the statute requires that the embezzled
funds themselves be connected with foreign or interstate com-
merce, not that the funds be connected to a business which is
engaged in commerce.” (A-12). The Court seemed satisfied,
however, because while “more precise draftsmanship charg-
ing that the funds and assets themselves bear some relation to
interstate commerce beyond mere ownership by the common
carrier would have been preferable, the indictment may be
fairly read to charge that the funds were in fact derived from
foreign or interstate commerce.” (A-11). Moreover, it con-
cluded that “any money accruing from or used in Prudential’s
steamship business must be largely composed of funds which
arise from or are used in foreign commerce and which there-
fore satisfy the jurisdictional requirements of Section 660.”
Id.

REASONS FOR GRANTING WRIT

The pertinent provisions of 18 U.S.C. Section 660 are as
follows:

Whoever, being a president, director, officer, or manager
of any firm, association, or corporation engaged in com-
merce aS a common carrier, or whoever, being an
employee of such common carrier riding in or upon any
railroad car, motortruck, steamboat, vessel, aircraft or
other vehicle of such carrier moving in interstate com-
merce, embezzles, steals, abstracts, or willfully misap-
plies, or willfully permits to be misapplied, any of the
moneys, funds, credits, securities, property, or assets of
such firm, association, or corporation arising or accruing
from, or used in, such commerce, in whole or in part, or

6

willfully or knowingly converts the same to his own use
or to the use of another, shall be fined not more than
$5,000 or imprisoned not more than ten years, or both.

As set forth in greater detail later in this petition, Section
660 is unique in the federal criminal code in that it requires
two separate links with interstate commerce: the first clause
requires that the victim be a “firm, association, or corporation
engaged in commerce as a common carrier” and a later clause
makes it a crime to embezzle funds “of such firm, association
or corporation arising or accruing from, or used in, such
commerce, in whole or in part... .” In this case, as in other
cases in the Southern District of New York, the prosecutor
deliberately ignored these separate and independent jurisdic-
tional requirements. It proceeded on a theory that satisfac-
tion of the first requirement—-that the embezzlement be of a
common carrier—necessarily satisfied the second require-
ment, and that allegation and proof of embezzlement of the
general funds of a carrier without any specific link between
such funds and commerce satisfies the statute. Thus, the
prosecutor ignored the language of the statute and alleged
simply that the defendants participated in a scheme to embez-
zle funds “arising and accruing from, and used in, in whole
and in part, Prudential Lines’ business as a firm and corpora-
tion engaged in commerce as a common carrier. ...” (A-23).
Similarly, the proof showed only that the defendant embez-
zled general funds of Prudential and failed to demonstrate
that the embezzled funds arose or accrued from or were used
in commerce, even in part.

The opinion of a panel of the Court of Appeals, which
allows the Government to premise a violation of 18 U.S.C.
Section 660 upon alleging and proving only one of two
separate jurisdictional requirements, should be reviewed by
this Court for at least three reasons.

First, the decision is clearly incorrect. The language of
the statute itself, its lengthy and detailed legislative history,
and every applicable canon of statutory interpretation all
compel a conclusion that Section 660’s separate jurisdictional
requirements must be separately alleged and proved.

7

Second, the decision in this case conjiicts with the prac-
tice in every other prosecuting district that has used Section
660. As set forth in greater detail in the petition, the
prosecutors in every judicial district other than the Southern
District of New York have separately alleged the two juris-
dictional requirements of Section 660 and, as far as research
reveals, have adduced proof that the embezzled funds directly
derived from interstate commerce.

Third, the panel’s decision yields the unintended result of
distorting the relationship between Section 660 and other
sections of the Criminal Code. Thus, a statute which was
clearly intended by Congress to require definite and precise
links with commerce is being applied to criminalize situations
in which far less restrictive federal criminal statutes cannot be
used.

I. The Decision of the Panel is Plainly Incorrect

Without exception, every aid to statutory interpreta-
tion—the intrinsic language of the statute itself; its legislative
history; and the applicable canons of interpretation—support
Mr. Marino’s contention and demonstrate the error of the
panel’s decision.

A. The Statutory Language.

Section 660 appears to be unique in the federal criminal
code in that it requires two separate and independent links
with interstate commerce. The language and structure of the
statute demonstrate that these twin requirements were not
designed to be repetitious or redundant, but rather were
meant to require separate allegations and proof.

The first jurisdictional requirement—that the defendant
be an officer “of any firm, association, or corporation engaged
in commerce as a common carrier’’—is clearly directed to the
status of the defendant and his victim.* The second jurisdic-
tional requirement of Section 660 is not directed to the
« fendant or the victim, but rather to the origin of the

* Section 660 also contains an alternative means of meeting this
first jurisdictional requirement, which is directed to a defendant who is
“an employee of such common carrier.” The indictment alleged that
the principals of the crime in which Mr. Marino participated, Keith
Nelson and John Marano of Prudential Lines, were officers or
managers of that corporation, and thus the alternative “employee”
provision of Section 660 was not involved in this case.

8

embezzled funds themselves. This second requirement ini-
tially refers back to the first, stating that the embezzled funds
must be “of such firm, association or corporation”; it then
requires in addition that the funds be “arising or accruing
from, or used in, such commerce, in whole or in part. ...”” In
short, a common-sense reading of the statute demonstrates
the obvious: Congress required that, first, the defendant be an
officer of a common carrier, and, second, that wholly apart
from the relationship of the carrier with interstate commerce,
the funds themselves have a direct link with commerce. Since
the indictment alleged only that the embezzled funds came
from Prudential’s business as a common carrier, and since
there was neither allegation nor proof that the funds them-
selves had any lik with interstate commerce, neither the
indictment no: the proof at trial satisfied the terms of the
statute.

B. The Legislative History.

The panel’s error is also confirmed by the statute’s legisla-
tive history. The relevant portion of Section 660 was first
enacted in 1914 as Section 9 of the Clayton Antitrust Act,
Ch. 323, § 9, 38 Stat. 730 (1914), subsequently codifed as 18
U.S.C. § 412 (1940 ed.) and later as 18 U.S.C. § 660 (1948
ed.). In 1914, Congress obviously could not envision the
expansive interpretation of the Commerce Clause developed
during the New Deal and thereafter. Rather, Congress was
acutely aware of its limits under the Commerce Clause.

As first proposed by the Senage Judiciary Committee, the
pertinent language of the bill which became the forerunner of
Section 660 provided:

Every president, director, officer, or manager of any
firm, association, or corporation engaged in com-
merce as a common carrier, who embezzles, steals,
abstracts, or willfully misapplies any of the moneys,
funds, credits, securities, property, or assets of such
firm, association, or corporation, or willfully or
knowingly converts the same to his own use or to the
use of another, shall be deemed guilty of a felony. . .

51 Cong. Rec. 14031 (1914). This version did not ...clude the
second interstate commerce nexus required by the present

9

Statute, and thus, in essence, reflected the position now advo-
cated by the Government.

When the original proposal reached the floor of the
Senate, however, it was rejected. Several senators noted that
the failure to require that the purloined funds themselves
derive from interstate commerce raised questions under what
they understood to be their constitutional limits under the
Commerce Clause. See, e.g., 51 Cong. Rec. 14037 (1914)
(remarks of Senator Shields) (“the language of this bill will
apply to any funds or assets of the common carrier, whether
they be used in interstate commerce or intrastate commerce.
I think as it is now written it is invalid”). Significantly, the
defenders of the bill did not claim that a broad reading of the
Statute was constitutionally permissible, but rather urged that
the statute had the more limited purpose of prohibiting acts
directly linked to interstate commerce. See, e.g., id. at 14036
(remarks of Senator White) (“I believe Congress has the
power to make it an offense to steal property on a railroad car
or steamboat while being carried from one state to another’’)
(emphasis added). In short, in these remarks and others, all
the senators—both those in favor of and opposed to the bill as
originally proposed—determined that an independent link
between the crime and interstate commerce was necessary.

Responding to these concerns, Senator Culberson pro-
posed an amendment to the bill that added the words “arising
or accruing from such commerce, in whole or in part.” /d. at
14041. This amendment was later adopted by the Senate, id.
at 14223, and, with the addition of the words “or used in” by
the Conference Committee, became law. /d. at 16170 and
16344. Thus, Congress specifically required not only that the
victim corporation be a common carrier “in commerce,” but
also that the funds themselves have an independent connec-
tion with “such commerce.”

Notwithstanding the clear purpose of this amendment, the
panel interpreted the second jurisdictional requirement to
require only that the embezzled funds derive from the general
funds of the carrier, and that those general funds derive, at
least in part, from commerce. (A-10- A-11). This argument,

10

however, was expressly rejected by the Senate. At a key point
in the deliberations on Section 660, Senator White, who
supported the bill and defended its constitutionality, discussed
the following question posed by Senator Cummins, who
opposed both:

Mr. Cummins. Very well. The United States
Steel Corporation is engaged in commerce among
the States, and is therefore subject to our regula-
tions in so far as we may impos rules that do
constitute regulations of commerce. Dees the
Senator from Alabama say that we could pass a law
making it a Federal offense or crime to commit
larceny against the property of the United States
Steel Corporation?

Mr. White. Yes; if that property was in
process of transportation from one State to another.

Mr. CuMMINS. But suppose it was not?
Mr. Wuite. Of course we could not.
Mr. CumMMINS. Why not?

Mr. White. Because the Constitution has not
conferred the power. We are without the power to
do it. That is the answer.

51 Cong. Rec. at 14036 (emphasis added).*

Moreover, as the panel acknowledged (A-8), the addition
of the second jurisdictional requirement, proposed by Senator
Culberson, was introduced for the specific purpose of satisfy-
ing doubts of the critics of the original proposal. Since the

* Moments later, Senator White made the same point in a
somewhat more dramatic fashion, as follows:

Mr, CumMMINS. I suppose the Senator would not contend that
we could make it a Federal offense under the constitutional power
for a president of a railroad corporation to beat his wife?

Mr. White. Not unless he beat her while she was bein
transported from one State to another by one of the agencies o
interstate commerce. Then we would try him and convict him for
it and we ought to hang him.

Id. (emphasis added).

persistent and repeated theme of these critics had been that
Congress should not criminalize embezzlement of undifferen-
tiated general funds or property of an interstate carrier, but
should limit the federal crime to embezzlement directly
related to interstate transportation, the purpose of the amend-
ment was obviously to require such a link.

The panel, however, simply ignored the repeated and
pointed observations of many senators, basing its entire read-
ing of the legislative history on one remark of Senator Culber-
son which had nothing to do with the directness of the link
between interstate commerce and the funds. Senator Culber-
son’s statement, quoted at A-9, that “if intrastate receipts
were affected as well as interstate receipts, the statute would
apply, nevertheless. . . .”, obviously reflects the view that if
the embezzled funds derived both from interstate and intra-
state commerce, Congress could constitutionally criminalize
their embezzlement. While this explains the “in whole or in
part”’ provision of the amendment, it has nothing at all to do
with the attack on the original bill that the amendment was
intended to satisfy, that is, the need for a link between the
embezzled funds and interstate commerce.

Similarly, the panel’s statement that the amendment to
Section 660 “was intended only to require that the embezzle-
ment of funds have an effect on commerce sufficient to justify
federal intervention under the Shreveport Rate Case” (A-10),
is wide of the mark. In his brief discussion of that case, in
which no other Senator joined, Senator Culberson pointed out
that if embezzled funds derived both from interstate and
intrastate commerce, Congress may criminalize their embez-
zlement. 51 Cong. Rec. 14041. Once again, this explains the
“in whole or in part” provision of the amendment which had
been discussed at length by Senator Shields shortly before
Culberson’s remarks; it has nothing to do, however, with the
requirement of a direct link between the embezzled funds and
interstate commerce that the “arising or accruing from such
commerce”’ language was designed to address.

12

In short, the panel’s decision turns the lengthy legislative
history of Section 660 on its head.* The original bill
presented to the Senate was the subject of direct and perva-
sive objections relating to the lack of any connection between
the embezzied funds and interstate commerce, and even
senators supporting the provision voiced their opinion that the
statute already required such a connection. In response to
these lengthy remarks, the proponent of the bill proposed an
amendment requiring that the embezzled funds arise or
accrue from interstate commerce. The panel ignored the
clear context and purpose of this amendment and based its
entire reading of the statute on a few remarks—during a
dialogue aptly described by the panel as becoming “somewhat
confused” (A-10)—after the amendment had _ been
introduced. Particularly since this Court has warned against
relying upon the statement of one legislator when attempting
to ascertain the intent of Congress, see United States v.
O’Brien, 391 U.S. 367, 385 (1968); see also Schwegmann
Bros. v. Calvert Corp., 341 U.S. 384, 395-96 (1951) (Jack-
son, J., concurring), the panel’s treatment of the legislative
history is plainly wrong.

C. The Canons of Interpretation.

In its opinion, the panel did not address the applicability
of any canons of statutory interpretation. But two clearly
applicable canons—each forcefully raised by Mr. Marino on
appeal—squarely refute the panel’s interpretation of Section
660.

First, neither the panel nor the Government addressed the
fact that their interpretations make the second jurisdictional
requirement a superfluity. All general funds of an interstate
carrier, as a matter of logic, must derive at least “in part”
from interstate commerce. If the panel and the Government
were correct, the second jurisdictional requirement would add
nothing to the rest of the statute. This Court has long

* While this petition of necessity can only quote from selected
rtions of the debate, the remarks in their ang s Bey oy su at
r. Marino’s interpretation of Section 660. The debate is repr

in the appendix on appeal at J.A. 669-699.

13

adhered to the rule of statutory construction that words in
statutes should not be construed as excess verbiage. See
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979); United
States v. Menasche, 348 U.S. 528, 538-39 (1955) (“It is our
duty ‘to give effect, if possible, to every clause and word of a
statute,’ Montclair v. Ramsdell, 107 U.S. 147, 152, rather
than to emasculate an entire section, as the Government’s
interpretation requires’). See generally 11 Sutherland,
Statutory Construction § 46.06 (1973).

Since, as demonstrated by Congress’ lengthy and schol-
arly debate, Congress clearly intended Senator Culberson’s
amendment to have a significant and limiting effect on the
statute, the Government’s attempt to render the amendment a
nullity should be rejected. Furthermore, “words must be read
with the gloss of the experience of those who framed them.”
United States v. Rabinowitz, 339 U.S. 56, 70 (1950)
(Frankfurter, J. dissenting).* The prevalent view at the time
of Section 660’s enactment—and indeed, until at least
1937—was that the interstate commerce power should be
cautiously exploited, see L. Tribe, American Constitutional
Law, at 234-35 (1978), and the Government’s current
approach to interpreting Section 660 should be rejected.**

Second, if there is any ambiguity in Section 660, it must
be resolved in favor of Mr. Marino. In United States v. Bass,
404-U.S. 336 (1971), the defendant was charged with violat-
ing 18 U.S.C. App. § 1202(a), which provided that anyone
who “has been convicted . . . of a felony . . . and who receives,
possesses, or transports in commerce or affecting commerce...
any firearm” was guilty of a crime. The Government argued
that the term “in commerce or affecting commerce” modified
only the immediately preceding verb (“transports”), rather
than the entire verb series. In contrast to this case, certain

* Rabinowitz was overruled, on grounds not relevant here, in
Chimel v. California, 395 U.S. 752 (1969).

** As one distinguished jurist has noted, “[W]hen Congress failed
to use the words that it commonly does to invoke the whole sweep of
the commerce power, the inference was that Congress did not intend to

0 so far.” H. Friendly, “Mr. Justice Frankfurter and the oe of
tatutes,” reprinted in Benchmarks 224 (1967) (footnote omitted).

14

“aspects of the meager legislative history . . . [did] provide
some significant support for the Government’s interpreta-
tion.” /d. at 345. Nonetheless, the Court interpreted the
interstate commerce requirement to apply not only to trans-
porting but also to receiving or possessing a firearm. First, it
followed the well-settled rule that “ambiguity concerning the
ambit of criminal statutes should be resolved in favor of
lenity.” Id. at 347, quoting Rewis v. United States, 401 U.S.
808, 812 (1971). See also Whalen v. United States, 445 U.S.
684, 695 n.10 (1980); Simpson v. United States, 435 U.S. 6,
14 (1978); Adamo Wrecking Co. v. United States, 434 US.
275, 283 (1978). Second, the Court held that “unless Con-
gress conveys its purpose clearly, it will not be deemed to have
significantly changed the federal-state balance.” /d. at 349
(footnote omitted).

Both of these precepts apply to this case. As the Second
Circuit panel’s unconvincing and confused interpretation of
the statute and its legislative history confirms, Section 660 is
at best ambiguous; the ambiguity should be interpreted
against the Government. Furthermore, Congress clearly
demonstrated that it did not want Section 660 to intrude
unnecessarily upon “conduct readily denounced as criminal
by the States.” United States v. Bass, supra, 404 U.S. at 349,
as amply evidenced by the legislative history and the unusual
last paragraph of Section 660,* which plainly contemplates
that most enforcement activity in this area will be by the
states.** Thus, this case is easily governed by Bass, in which
the Government’s argument was intrinsically more plausible
and found support in the legislative history.

* The final paragraph of Section 660 provides as follows:

A judgment of conviction or acquittal on the merits
under the laws of any State shall be a bar to any prosecution
hereunder for the same act or acts.

** During floor debates on Section 660 when first enacted, several
senators expressed the view that the states, rather than the federal
government, should have principal responsibility for prosecuting
embezzlements, even from common carriers. See, e.g., 51 Cong. Rec.
14035-36 and 14038-39 (remarks of Senator Stone).

15

In short, the statutory language, the legislative history and
canons of statutory interpretation combine to compel one
conclusion: a criminal prosecution under 18 U.S.C. § 660 can
be premised only upon a showing both that the victim
corporation was a carrier “engaged in commerce” and,
separately, that the embezzled or misapplied funds them-
selves “arose or accrued from, or were used in” interstate
commerce. The Government’s contrary interpretation of this
statute resulted in a defective indictment, insufficient proof at
trial, and an improper charge to the jury.

An indictment, to be sufficient, must allege all elements of
the crime charged. See Hamling v. United States, 418 U.S.
87, 117 (1974); Russell v. United States, 369 U.S. 749, 763-
64 (1962); United States v. Debrow, 346 U.S. 374, 376
(1953); United States v. Chestnut, 533 F.2d 40, 45 (2d Cir.),
cert. denied, 429 U.S. 829 (1976); United States v. Camp,
541 F.2d 737, 739 (8th Cir. 1976). Here the Government
framed an indictment that addressed one, but not both, of the
interstate commerce requirements. While the indictment
alleged that Prudential was a “firm and corporation engaged
in commerce as a common carrier” and that the misapplied
moneys derived from Prudential’s business, the indictment
ignored the second jurisdictional requirement of an allegation
that the misapplied moneys themselves arose or accrued from
interstate commerce.

Because the trial court adopted the Government's request
to charge in haec verba, its instructions to the jury were
similarly defective. The trial judge’s charge on the require-
ment that the embezzled funds accrue or arise from interstate
commerce was as follows:

In this connection, I also charge you that it is not
necessary for the Government to prove that the very
dollars, monies, or funds which were, according to
the Government’s contention, misapplied or con-
verted to Nelson’s use or the use of others, were at

16

some point actually used by Prudential Lines in
commerce. The Government need only show that
the conversion or misapplication involved funds or
accounts which included monies, such as operating
income, arising or accruing from, or used in, in
whole or in part, Prudential’s business as a common
carrier engaged in commerce. (J.A. 639).

In contrast, the defense submitted its Request Number
28, which urged the Court to charge the language of the
statute; that is, that the moneys at issue arose from interstate
commerce. The trial court declined to charge this language
on the ground that “I don’t think that it is the law.” (J.A.
451). For the reasons set forth above, this was error.

Finally, the Government failed to meet its burden of
proving that the embezzled funds derived from interstate
commerce. It is undisputed that all incidents of the illicit
scheme occurred within one state. Neither the testimony nor
any of the exhibits demonstrated or suggested that any of the
acts from which the embezzled funds “accrued,” “arose,” or
were “used” took place outside New York State. The
damaged chassis were in New York before the scheme began;
they were then transported within New York City to Marine
Repair’s yards; Prudential’s checks were issued in New York
and delivered to Marine Repair in New York; and the
kickbacks and phony invoices were exchanged at Marine
Repair’s office on Staten Island.

In contrast, in every Section 660 decision outside the
Second Circuit in which the reported opinion gives a detailed
version of the facts, the facts demonstrate what the statute
requires—a direct link between the interstate commerce and
the embezzled funds. See, e.g., United States v. Queen, 445
F.2d 358, 359 (10th Cir.), cert. denied, 404 U.S. 1003 (1971),
(theft of moneys derived from shipment from Colorado to
Oklahoma); United States v. Kimball, 441 F.2d 505, 506
(10th Cir. 1971) (theft of proceeds of shipment from
Nebraska to Oklahoma); United States v. Cook, 384 US.
257, 258 (1966) (embezzlement of “approximately $200 from
funds of his employer accruing from an interstate shipment of

17

bananas’’); United States v. Tye, 519 F.2d 586, 587 (10th
Cir.), cert. denied, 423 U.S. 989 (1975) (theft of fees for
delivery of packages from Illinois, Ohio, Florida and Min-
nesota to Kansas). The practice in the Southern District of
New York, alone among the district courts, is thus clearly
error.

II. The Decision in This Case Conflicts With The Prac-
tice In Every Other District That Has Used Section
660

Until recently, Section 660 has not been widely used by
federal prosecutors, and the decisions interpreting its scope
and application are relatively few. Several decisions appear-
ing in the official reporters, however, quote in their text the
critical language of the indictments upon which they were
based. These decision are United States v. Queen, supra, 445
F.2d at 360; United States v. McGee, 242 F.2d 520, 521-22
(7th Cir. 1959); United States v. Kimball, supra, 441 F.2d at
506 and n. 1; United States v. Tye, supra, 519 F.2d at 587.
Without exception, the prosecutor in each of these cases
separately alleged, first, that the principal was an employee or
officer of the common carrier engaged in commerce, and,
second and separately, that the embezzled funds themselves
derived from commerce.

On appeal to the United States Court of Appeals for the
Second Circuit, Mr. Marino pointed out these decisions and
urged that they showed that the practice in the Southern
District of New York was unique. The Government
responded that each of the cited cases involved the
“employee” clause of Section 660, see p. 7, supra at n. *, and
was thus inapplicable to “officer” prosecutions, such as the
present one. For its part, the panel simply ignored the
contrary practice in other districts and did not address Mr.
Marino’s argument.

Subsequent research has demonstrated that the Govern-
ment’s position is not only misleading but factually incorrect.
The “officer” and “employee” clauses of Section 660 provide
alternative means of satisfying the first jurisdictional link,
that is, that the principal have the stated relationship with a

18

common carrier engaged in commerce. In both “officer” and
“employee” prosecutions, however, the Government bears the
burden of alleging and proving the second jurisdictiona!
requirement, that is, the connection between the embezzled
funds and commerce. Because Mr. Marino focused on this
second requirement and did not contest the first, the
purported “distinction” between officer and employee cases
was irrelevant.

Since the argument in the Court of Appeals, and with the
aid of the computer data base maintained by the Administra-
tive Office of the United States Courts, counsel for Mr.
Marino have identified every indictment filed within the last
ten years under Section 660, and have obtained copies of all
but a few of these indictments. A review of these indictments
forcefully demonstrates three points.

First, without exception, every District other than the
Southern District of New York which has presented an
indictment under 18 U.S.C. Section 660 has separately and
independently alleged both of Section 660's jurisdictional
requirements.* Instead of alleging only that the embezzled
funds arose from the common carrier’s business, as in the
Marino indictment, every other District has charged first that
the defendant was an officer or employee of a common carrier
engaged in commerce, and second that the embezzled funds
themselves derived from commerce. Since these indictments,
which total more than 30 in number, are of critical
importance in understanding the uniqueness of the
prosecutor’s practice in this case, the indictments are
reproduced in their entirety in the Appendix at A-27—A-132.

Second, these indictments show that the Government's
attempted distinction between “officer” and “employee”
prosecutions is misplaced. As the attached indictments
demonstrate, in at least five instances other Districts have

* In United States v. McKellips, No. CR 78-200 (D. Ore. 1978)
(A-96), the two commerce requirements do not appear to be separatel
alleged in the indictment. That indictment was ultimately dismi
however. A ——— indictment in that district seniaet another
individual correct yy alleged the e% requirements. United States
v. Law, No. CR 79-96 (D. Ore. 1979). (A-98).

19

filed indictments against officers of common carriers and have
uniformly drafted the indictments to include separate juris-
dictional allegations. (A-28, A-43, A-92, A-99, A-118). No
District, other than the Southern District of New York, has
combined the jurisdictional allegations into one.

Third, the record shows that in the Southern District of
New York the interpretation of Section 660 reflected in the
Marino indictment is not an isolated occurrence. In the last
five years, the Southern District has utilized Section 660 in ai
least two previous indictments. See, e.g., United States v.
Gregg, 612 F.2d 43 (2d Cir. 1979);* United States v. Kole,
442 F. Supp. 852 (S.D.N.Y. 1977). See also A-74, A-81. In
each case, the indictments failed to allege the separate juris-
dictional requirements.

Of even greater significance, after the impropriety of the
drafting of the Marino indictment was squarely raised by Mr.
Marino and his co-defendant in the District Court in this
case, the United States Attorney's office for the Southern
District of New York filed yet another indictment of Section
660 in which it persisted in collapsing the two jurisdictional
requirements into one. See A-88.** In short, the Marino
indictment was not a negligent or aberrational mistake.
Rather, the Southern District of New York has deliberately
and consistently adopted an interpretation of a statute that is
dramatically at odds with the practice in every other District,
and has served notice that it will continue to do so unless this
Court reviews its interpretation.

No Court of Appeals other than the Second Circuit in this
case has addressed the issue raised in this petition. The
reason for this, however, is clear, and demonstrates that in
every important respect there is a “conflict among the Cir-
cuits” within the meaning of Rule 17.1 of the Rules of this
Court. As exhaustively illustrated by the indictments

* In Gregg, the defendant’s appointed counsel never raised, and
apparently never perceived, the issue raised in this petition, and thus
there is no discussion of it in the Gregg opinion.

** That indictment was — superseded by an indictment
that alleged only a violation of 18 U.S.C. § 371. United States v.
Marano, SS 80 Cr. 149.

20

included in the Appendix to this petition, the prosecutor in
every District outside of the Southern District of New York
has properly drafted indictments alleging both jurisdictional
requirements. In that circumstance, of cvurse, there is no
issue relating to the drafting of the indictmer: or the inter-
pretation of the statute from whicli either the Government or
the defendant can appeal, since the issue raised in this peti-
tion was already resolved by a proper interpretation. The
result on the administration of criminal justice, however, is
precisely the same as if every other Court of Appeals had
ruled in favor of Mr. Marino's position: an indictment like
Mr. Marino's is permissible only in one District and has been
rejected in every other District. In short, no clearer “conflict”
can ever arise, and this Court should review the unique
interpretation which one District has adopted and doggedly
continues to utilize.

Ill. The Panel’s Decision Creates an Unwise and. Unintended
Policy in the Administration of the Federal Criminal
Laws

The Second Circuit’s interpretation of Section 660 creates
an unwise and unintended policy in the administration of the
federal criminal laws by distorting the relationship between
that section and other sections of the Criminal Code. Since
1914, Congress has enacted many federal criminal statutes
containing, in contrast to Section 660, only the most modest
federal jurisdictional requirements. For example, the mail
and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, have
been held by this Court to apply to illicit schemes virtually
identical to the one alleged by the Government in this case.
See, e.g., United States v. Corey, 566 F.2d 429 (2d Cir.
1977). Similarly, under the Supreme Court’s decision in
Perrin v. United States, 444 U.S. 37 (1979), the facts alleged
here would be covered by the felony provisions of the Travel
Act, 18 U.S.C. § 1952, which prohibits commercial bribery of
the sort alleged here. To avail itself of one of these statutes,
the Government would have had to show only a single
telephone call, a single use of the United States mails, or one
instance in which a participant “travel[ed] in interstate or
foreign commerce or use[d] any facility in interstate or

21

foreign commerce, including the mail.” The reason the
Government did not adopt one of these familiar and often-
used statutes is obvious: the Government could point to no
interstate travel—since all of the acts alleged to have been
committed by the defendant and the co-schemers occurred in
New York; no use of the mails—since the various invoices,
checks, and other documents were hand-delivered, and no use
of the telephone—since the schemers spoke to each other in
person. Rather than leave the prosecution of the alleged
scheme to the office of an appropriate New York State Dis-
trict Attorney, the Government chose to use a more restricted
federal statute when it was unable to proceed with less restric-
tive one.

If this Court declines to review the Second Circuit’s novel
interpretation of 18 U.S.C. § 660, it will have eliminated even
the modest jurisdictional requirements of the mail fraud, wire
fraud and Travel Act statutes with respect to common car-
riers. It will have empowered the Government in one District
alone to charge embezzlements from common carriers—with
a maximum prison term double that of the other statutes
cited above*—without any specific interstate commerce
requirement. Since Congress in 1914 clearly intended Sec-
tion 660 to be more, rather than less, restrictive in its applica-
tion than the other and more modern statutes, the panel’s
interpretation should be rejected.

* The mail and wire fraud statutes and the Travel Act all provide
for five-year maximum sentences.

22

CONCLUSION

If the decision of the panel in this case is allowed to stand,
it will permit a single federal prosecutor's office, alone among
all the federal districts in this country, to make continued use
of a unique interpretation of a criminal statute when

(1) the statute, its legislative history, and canons of
interpretation contradict the interpretation;

(2) every other prosecuting office, without exception,
has followed a different interpretation of the statute; and

(3) the decision fundamentally alters the relationship

between Section 660 and other federal criminal statutes
based on the Commerce Clause.

For the foregoing reasons, the petition for a writ of certi-
orari should be granted.

Respectfully submitted,

HAROLD R. Ty Ler, Jr.
FREDERICK T. DAVIS

30 Rockefeller Plaza

New York, New York 10112

(212) 541-4000

Attorneys for Vincent E. Marino
Of Counsel:

Lestig C, LEVIN
Patterson, Belknap, Webb & Tyler

30 Rockefeller Plaza
New York, New York 10112

Dated: May 18, 1981

APPENDIX

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

>

No. 182—September Term, 1980 .
(Argued September 30, 1980 Decided January 22, 1981)
Docket No. 80-1213

>—

UNITED STATES OF AMERICA,
Appellee,
_Ve—
VINCENT E, MARINO,
Defendant-Appellant.

Before:

OAKES and NEWMAN, Circuit Judges, and
CorFRin, District Judge.*

+

Appeal froma judgment of the United States District
Court for the Southern District of New York, entered by
Judge Charies E. Stewart, Jr. after a jury trial convicting

° Honorable Albert W. Coffrin, United States District Judge for the
District of Vermont, sitting by designation.

A-l

appellant on charges related to violations of 18 U.S.C.
§ 660. Appellant appeals from his conviction on the
ground that section 660 has no proper application to the
conduct with which he was charged. He also appeals on
the ground that the trial court erred in admitting certain
evidence offered by the prosecution.

Judgment Affirmed.

>

HAROLD R. TYLER, JR., Esq., Patterson, Bel-
knap, Webb & Tyler, New York, New
York, (Frederick T. Davis, Esq., and Ken-
neth A. Caruso, Esq., of counsel), for
Defendant-Appellant.

Scott W. MULLER, Esq., Assistant United
States Attorney, (John S. Martin, Jr.,
Esq., United States Attorney for the
Southern District of New York, Attorney
Mary Jo White, Assistant United States
Attorney, of counsel), for Appellee.

>

CoFFRIN, District Judge:

Vincent E. Marino appeals from a judgment of convic-
tion entered on May 22, 1980, after a three-week jury trial
before Judge Stewart in the United States District Court
for the Southern District of New York. The jury found
Marino guilty on all four counts of an indictment charg-
ing him with conspiracy, 18 U.S.C. § 371, and aiding and
abetting the embezzlement of funds of a common carrier,

A-2

18 U.S.C. §§ 2, 660. Judge Stewart sentenced Marino to a
total of one year and one day’s imprisonment.'

In arguing that his conviction should be reversed,
Marino maintains that the provisions of 18 U.S.C. § 660
do not apply to the acts with which he was charged. In
this connection, he contends that deficiencies in the in-
dictment, the proof at trial, and the charge to the jury
each provide grounds for reversal. He also objects to the
admission of certain evidence at trial on the grounds of
irrelevance, prejudice, and unfair surprise.

Marino was convicted for his part in an overbilling and
kickback scheme involving two executives of the steam-
ship company, Prudential Grace Lines, Inc. (Prudential).
Prudential is a large American flag carrier engaged exclu-
sively in foreign commerce. The executives of Prudential
involved in the scheme were Keith Nelson, Director of
Intermodal [container] Operations, and John Marano, an
officer of the corporation and Executive-Vice President in
charge of operations. At the time of the scheme, Marino
was president and part owner of Marine Repair Services,
Inc. (Marine Repair). Marine Repair is a Staten Island
company engaged in the repair of maritime equipment
including containers and the chassis on which the con-
tainers rest when they are carrying goods by land.

The kickback scheme began in July 1974 when Nelson
decided to seek the repair and modification of approxi-
mately sixty-five of Prudential’s container chassis in or-
der to bring them into compliance with industry stan-
dards. Nelson conferred with Marano and then obtained
bids for the work from Marine Repair and other compa-

! Judge Stewart declared a mistrial of the case against Marino’s co-
defendant William O’Donnel after the jury was unable to reach a
verdict concerning him. Criminal proceedings against O’Donnel were
later terminated with the entry of a nolle prosequi order.

A-3

nies. Nelson and Marano accepted Marine Repair’s bid
for the work even though the bid was substantially higher
than others which Nelson received. The evidence showed
that Marino agreed to pay $900 per chassis in roughly
equal shares to Marano, Nelson, and Anthony Scotto of
the International Longshoremen’s Union.’

Work began on the chassis in October 1974 and lasted
until July 1975. During that period Marine modified
approximately fifty-two chassis. Marine received payment
for the work both through invoices submitted directly to
Nelson for special rush payment and through a second set
of invoices apparently submitted for the same work
through routine billing channels. Nelson, Marano, and
allegedly Scotto each received kickback payments;
Nelson’s payments alone exceeded $13,000. Nelson later
pled guilty to tax charges arising from the unreported
receipt of other kickback payments not involved in this
case.

I. Applicability of 18 U.S.C. § 660.

18 U.S.C. § 660 is directed at the theft or embezzle-
ment of funds of a common carrier by an executive or
employee. The section provides in part that

[w]hoever, being a president, director, officer or
manager of any firm, association, or corporation
engaged in commerce as a common carrier, or
whoever, being an employee of such common carrier

2 Marino was originally indicted as a co-defendant with Anthony
Anastasio, Anthony Scotto, and Joseph Lacqua. The indictment
charged Marino with violations of 29 U.S.C. § 186(a). The trial of
Scotto and Anastasio was severed, Lacqua was also tried separately,
and in December 1979 the government replaced the original counts
against Marino with the four embezzlement and conspiracy counts on
which he and O’Donnel were ultimately tried.

A-4

riding in or upon any railroad car, motortruck,
steamboat, vessel, aircraft or other vehicle of such
carrier moving in interstate commerce, embezzles,
steals, abstracts, or willfully misapplies, or willfully
permits to be misapplied, any of the moneys, funds,
credits, securities, property, or assets of such firm,
association, or corporation arising or accruing from,
or used in, such commerce, in whole or in part, or
willfully or knowingly converts the same to his own
use or to the use of another, shall be fined not more
than $5,000 or imprisoned not more than ten years,
or both.

Marino raises several objections to his conviction under
section 660. First, he claims that the indictment, proof at
trial, and charge to the jury each failed to satisfy the
statutory requirement that the embezzled funds arise or
accrue from commerce. This argument has two parts.
Marino argues that section 660 applies to the embezzle-
ment of funds derived from transactions in interstate but
not foreign commerce. He also contends that the statute
requires that the embezzled funds derive directly from
some specific, identifiable transaction in interstate com-
merce. Finally, Marino claims that the proof and charge
to the jury did not satisfy the requirement that one of the
principals in the scheme be an officer or manager of the
common carrier.

A. Foreign Commerce

Section 660 clearly reaches the embezzlement by execu-
tives of funds accruing from either foreign or interstate
commerce. When section 660 first appeared as section 9
of the Clayton Act in 1914, it applied only to executives
and managers of firms “engaged in commerce as a com-

A-5

mon carrier” who embezzle money “arising or accruing
from, or used in, such commerce.” Clayton Act, ch. 323,
§ 9, 38 Stat. 733 (1914). The Clayton Act defines com-
merce (in 1914 as well as today) to include both foreign
and interstate commerce. 15 U.S.C. § 12(a). This broad
definition of commerce placed the embezzlement of funds
arising or accruing from foreign as well as from interstate
commerce within the scope of the 1914 version of section
660.

In 1940, section 9 of the Clayton Act became section
412 of Title 18. In 1948, Congress combined section 412
with 18 U.S.C. § 409(a)5, a provision aimed at combat-
ting thefts of property from interstate shipments by
employees of the carrier, in order to create section 660.
The only reference in section 660 to interstate commerce
comes from section 409(a)5. Employees prosecuted under
section 409(a)5 and now under section 660 must be
accused of stealing property while riding on a vehicle
“moving in interstate commerce.”

To apply the interstate movement requirement to the
executive provision of section 660, however, would be
plainly incorrect. Congress did not intend the re-codifica-
tion of title 18 in 1948 to effect substantive changes in the
scope and coverage of existing criminal statutes like those
combined to form the modern section 660. United States
v. Cook, 384 U.S. 257, 260 (1966). From 1914 to the
present date, therefore, section 660 and its predecessors
have applied to the embezzlement by executives of funds
arising from either foreign or interstate commerce.

B. “Arising or accruing from, or used in, such com-
merce.”

Marino also contends that section 660 requires that the
embezzled funds must not only derive from interstate

A-6

commerce but from an identifiable transaction in inter-
state commerce as well. Marino argues that the require-
ment that the officer or manager embezzle funds “arising
or accruing from, or used in, such commerce, in whole or
in part” cannot have been satisfied in the indictment,
proof, or jury charge because the fraudulent transactions
were carried out entirely within the state of New York. He
argues further that the funds used to make the fraudulent
overpayments to Marine Repair were not the proceeds of
an identifiable transaction in interstate commerce and
thus failed to bring the fraud within the scope of section
660. In short, Marino’s position is that the ‘arising’
requirement means either that the perpetration of the
fraud must cross state lines or that the embezzled funds
must be traced to some specific interstate transaction.

In divining the intended effect of the ‘arising’ require-
_ment, the court looks to the legislative debate preceding
the passage of section 9 of the Clayton Act in 1914.
Section 9 as first proposed contained no ‘arising’ require-
ment at all. Sharp disagreement then broke out on the
floor of the Senate concerning the constitutionality of the
bill. Opponents of the measure viewed it as an invasion of
an area of the criminal law traditionally left to the states.
As Senator Stone of Missouri observed,

The power of the Federal Government in the mere
regulation of interstate commerce is wide and ample;
but we are going to do now what we have not done
before—we are going to authorize the Federal Gov-
ernment to intrude upon the States and indict offi-
cials and agents of state corporations and private
firms and associations for the crime of larceny, of
embezzlement, and other like offenses known to the
statutes of every State. Think what will result!

A-7

51 Cong. Rec. 14038 (1914). The bill’s proponents, on the
other hand, were primarily concerned with remedying
widespread scandal and abuse in the railroad industry. In
their desire to eliminate fraud, especially watered stock
schemes and the sale of railroad property to insiders for
inadequate consideration, they had few objections to the
imposition of federal penalties for criminal acts affecting
interstate commerce even though those acts might already
be illegal under state law.

In enacting section 9, Congress clearly rejected Stone’s
rather sweeping argument against concurrent state and
federal criminal jurisdiction. The more narrow constitu-
tional problem perceived by proponents and opponents of
the bill alike concerned the effect of section 9 on com-
merce which was part interstate and part local in nature.
Senator Chilton of West Virginia, for example, stated the
problem and resolved it in favor of federal intervention
regardless of any incidental effect on intrastate com-
merce.

Simply because in a specific case the director [of a
carrier] may not be an interstate instrument, or
simply because one piece of freight in a car might not
be interstate commerce, does not make the law in-
valid. We have the general power over interstate
commerce, and because intrastate commerce gets in
the way, or can not be always found out of the way,
we need not surrender our powers.

51 Cong. Rec. 14038 (1914).

.Other senators were more troubled than Chilton by the
prospect of federal regulation of purely intrastate com-
merce. In an apparent attempt to put these doubts to rest,
Senator Culberson of Texas proposed the ‘arising’ re-
quirement as an amendment to section 9. In introducing

A-8

his amendment, Culberson quoted from the then recent
decision of the Supreme Court in the Shreveport Rate
Case, Houston, East and West Texas Railway v. United
States, 234 U.S. 342 (1914), in which the Court permitted
federal regulation of rates charged by intrastate carriers
competing with interstate carriers. The gist of
Culberson’s remarks was that federal intervention in
intrastate affairs was permitted by the commerce clause if
the apparent encroachment was necessary for the ade-
quate protection of interstate commerce. Culberson in-
tended the ‘arising’ requirement to mean that although
federal prosecution under section 9 could take place only
if the fraud involved some funds derived from interstate
commerce,

if intrastate receipts were affected as well as inter-
state receipts, the statute would apply, nevertheless,
but a conviction could be had, not with reference to
intrastate trade or property, but with reference to
that affected by or received from or arising out of or
accruing from the conduct of interstate commerce as
defined in this bill.

51 Cong. Rec. 14041 (1914).

Culberson’s intention in proposing the amendment was
not understood by some of the other senators. Senator
Cummins of Texas, for example, questioned Culberson
about whether the ‘arising’ requirement confined section
9 to actual cash receipts derived directly from railroad
operations. Cummins believed that “if you are going to
make the misapplication of some of the proceeds [of
commerce] an offense we certainly ought to reach an
improper diversion of the capital of a railway company or
a common carrier as well as the earnings of a carrier.” 51
Cong. Rec. 14041 (1914). Although the subsequent ex-

A-9

change between Cummins and Culberson is somewhat
confused and ended abruptly with the introduction of
unrelated business before the Senate, it is clear that
Culberson anticipated that section 9 as amended would
reach the embezzlement of capital as well as proceeds of
an interstate carrier. After all, the abuses which prompted
the bill in the first place, particularly the scandal sur-
rounding the failure of the New York, New Haven and
Hartford Railroad, greatly exceeded the mere theft of
cash receipts.

The debate does not support Marino’s position that the
funds must be traced to a specific transaction in interstate
commerce. Although some of section 9’s most earnest
proponents feared that a strict interpretation of the ‘aris-
ing’ requirement (very like that urged by Marino in this
case) might come to restrict the usefulness of the statute,
see remarks of Senator Nelson of Iowa, 51 Cong. Rec.
15942 (1914), the Senate debate read as a whole strongly
indicates that the amendment was intended only to re-
quire that the embezzlement of funds have an effect on
commerce sufficient to justify federal intervention under
the Shreveport Rate Case. “Arise or accrue,” then, should
not be interpreted in a narrow accounting sense which
would require tracing the funds to a particular trans-
action. Instead, Congress intended the ‘arising require-
ment’ to mean that the funds must be derived from or
used in commerce in such a way that theft of the funds
has an adverse effect on foreign or interstate commerce.
The correct focus is on the connection between the funds
of the common carrier and foreign or interstate com-
merce and not between the funds and some particular
transaction in commerce.

The indictment under which Marino and O’Donnel
were ultimately tried adopts much but not all of the

A-10

language of the ‘arising’ requirement. In all four counts
Marino was charged with embezzling funds “arising and
accruing from, and used in, in whole or in part, Pruden-
tial Lines, Inc.’s business as a firm engaged in commerce
as a common carrier.” In drawing up the indictment, the
government relied on the single word “as” to satisfy the
two separate statutory requirements that the carrier be
engaged in commerce and that the embezzled funds bear
the requisite relation to commerce. Although more pre-
cise draftsmanship charging that the funds and assets
themselves bear some relation to interstate commerce
beyond mere ownership by the common carrier would
have been preferable, the indictment may be fairly read to
charge that the funds were in fact derived from foreign or
interstate commerce. The indictment describes Prudential
as a firm “engaged in commerce as a common carrier in
the steamship business.” “Commerce,” we believe, means
for purposes of the indictment exactly what it means for
purposes of section 660—interstate or foreign commerce.
In this case, any money accruing from or used in
Prudential’s steamship business must be largely composed
of funds which arise from or are used in foreign com-
merce and which therefore satisfy the jurisdictional re-
quirements of section 660.

The proof at trial bears out this interpretation of the
indictment. The government showed Prudential to be
engaged exclusively in foreign commerce. The account
from which Nelson made the overpayment was
Prudential’s principal checking account into which the
firm deposited most of its revenues from foreign com-
merce. The presence in the account of some money
derived from sources other than commerce would not
taint the account for jurisdictional purposes since section
660 applies to funds derived either wholly or in part from
interstate or foreign commerce.

A-11

The jury instructions followed the language of the
indictment closely. The trial court read the pertinent
provisions of section 660 to the jury and then discussed in
some detail each element of the crime. The court in-
structed the jury that in order to satisfy the ‘arising’
requirement

it is not necessary for the Government to prove that
the very dollars, monies, or funds which were, ac-
cording to the Government’s contention, misapplied
or converted to Nelson’s use or the use of others,
were at some point actually used by Prudential Lines
in commerce. The Government need only show that
the conversion or misapplication involved funds or
accounts which included monies, such as operating
income, arising or accruing from, or used in, in
whole or in part, Prudential’s business as a common
carrier engaged in commerce.

This instruction, like the indictment, could have been
more precise because the statute requires that the em-
bezzled funds themselves be connected with foreign or
interstate commerce, not that the funds be connected to a
business which is engaged in commerce. In the present
case, however, the distinction is of little practical conse-
quence because it is clear from the testimony at trial that
virtually all of Prudential’s funds and assets are derived
from and used in commerce. Accordingly, Marino has
failed to demonstrate the presence of reversible error
concerning the ‘arising’ requirement in either the indict-
ment, the proof at trial, or the jury charge.

C. ‘Manager’ Requirement

In order to convict Marino under section 660, the
government was required to prove that a president, direc-

A-12

tor, officer, or manager of Prudential participated in the
fraud.’ As a corporate officer of Prudential and Execu-
tive-Vice President in charge of operations, John Marano
clearly qualified as an officer or manager for purposes of
section 660. Marino, however, contends that the evidence
at trial does not support a finding that Keith Nelson was
also a manager. In addition, he claims that the jury
charge concerning the definition of a manager was inade-
quate. Marino argues, therefore, that the faulty charge
may have led the jury to convict Marino on the theory
that Nelson (but not Marano) participated in the fraud.
In the absence of sufficient evidence that Nelson was a
manager, Marino’s conviction would not be expressly
predicated on a finding of wrongful acts by a carrier
executive.

Marino’s argument fails because both the proof at trial
and the jury instructions regarding the manager require-
ment were entirely adequate. At trial Nelson was shown
to have been an executive of some importance within
Prudential at the time of the fraud. He supervised a staff
of about twenty-five people and was responsible for the
use and maintenance of all of Prudential’s containers and
related trucking and stevedoring equipment. Along with
several other division heads, he reported directly to
Marano who reported in turn to the president of the
company.

Above all, Nelson’s role in carrying out the fraud
shows him to have been an individual exercising “a great
deal of control over financial matters and policy deci-
sions” and therefore posing a special threat to commerce
justifying federal prosecution under section 660. United

3 The employee provision of section 660 has no application in this case
because it is limited to theft or embezzlement by employees actually
riding in interstate commerce.

A-13

States v. Gregg, 612 F.2d 43, 49 (2d Cir. 1979). The initial
decision to seek repair and modification of the obsolete
containers came from Nelson and was subsequently ap-
proved by Marano. Although Marano was the Prudential
executive involved in planning the kickback scheme at the
outset, Nelson was largely responsible for putting the
scheme into operation. In particular, Nelson was in a
position at Prudential which enabled him to approve the
unusual rush payment of inflated invoices from Marine
Repair. In short, the government clearly met its burden of
proof that Nelson exercised the authority of a manager
during his tenure at Prudential and could satisfy the
‘manager’ requirement of section 660 even if the jury had
determined that Marano was not involved in the fraud.

The jury instruction regarding the definition of the
term “manager” was also adequate. The trial court in-
structed the jurors to apply the term in light of their
everyday experience and to consider the titles, responsibil-
ities, authority, and hierarchical positions of both Nelson
and Marano. In the case of a term like ‘manager’ which
has no specific technical meaning and is within the com-
mon understanding of the jurors, a special definition by
the trial court is unnecessary. See United States v. John-
son, 575 F.2d 1347, 1357 (Sth Cir. 1978), cert. denied, 440
U.S. 907 (1979). The trial court’s instruction concerning
the manager requirement, therefore, contains no revers-
ible error.

Il. Pre-Trial Disclosure and Admission into Evidence
of the B Series of Invoices.

Much of the documentary evidence introduced at trial
by the government consists of copies of invoices submit-
ted by Marine to Prudential for work performed on

A-14

chassis and containers. The majority of these invoices,
the so-called A series, were submitted directly to Nelson
for special approval and rush payment. In addition,
Marino submitted a second group of invoices, the B
series, through ordinary billing channels at Prudential.
Prudential then seems to have paid both the A and the B
series of invoices. On appeal Marino objects to the
introduction of the B series on grounds of unfair surprise,
prejudice, and irrelevance.

A. Unfair Surprise

Marino claims that the government’s failure to disclose
in a timely fashion its intention of introducing the B series
hindered his defense because his attorney had no ade-
quate opportunity to prepare a means of countering the
effect of the B series. The record, however, simply does
not support Marino’s argument.

Several weeks before trial the government gave
Marino’s attorney access to a collection of documents
(between one and six file drawers according to various
representations by counsel at trial) which included the B
series as well as other documents used by the government
in preparation for trial. The government notified
Marino’s attorney that some of the documents in the
collection might be offered into evidence. Marino con-
cedes that by making the B series available in this manner,
the government complied with the technical requirements
of Fed. R. Crim. P. 16(a)(1)(C) which governs pretrial
discovery of documents and tangible objects. He con-
tends, however, that the government surprised him un-
fairly because he and his attorney were not told that the B
series would be offered into evidence until shortly before
the close of the government’s case-in-chief.

A-15

The record indicates that both the letter and the spirit
of Fed. R. Crim. P. 16 were fully satisfied in this case.
The collection of documents made available to Marino
before trial, while extensive, does not seem to have
exceeded the capacity of an attorney to read and study in
preparation for a major trial. The B series, moreover,
apparently came to the government from Marine Repair’s
files and concerns business transactions in which Marino
was directly involved. Finally, Marino and his attorney
received a special continuance in the midst of trial to give
them an opportunity for preparation concerning the B
series. In short, the defense received fair notice of the
existence of documents, including the B series, which the
government might use at trial, an opportunity to review
these documents before the start of trial, and a special
opportunity in medias res to review copies of the B series
before putting on its own case. Marino has shown no
unfair surprise which justifies reversal on appeal.

B. Relevance and Prejudice

Marino also contends that the admission of the B series
was prejudicial and the documents irrelevant because the
B series indicates only that Marine Repair may have
engaged in a second, quite separate fraud involving bdill-
ing Prudential twice for the same services. The record
indicates, however, that the B series was used at trial by
the government for a relevant purpose which outweighs
the possible prejudicial effect on the jury.

The A series invoices submitted to Nelson for rush
payment are not rich in descriptive detail. In most cases,
they contain an amount for labor and a single charge for
parts of about $650 which is attributed to a front and rear
twist lock assembly. The government introduced testi-

A-16

mony at trial that the four necessary twist locks should
have cost no more than thirty-five dollars each. In the
course of its closing argument, the government argued t
the jury that the $650 charges for parts in the A series
invoices were grossly inflated and a mere cover for money
intended for Nelson, Marano, and Scotto.

The B series bears out this claim of inflation. The
invoices in this series contain lengthy itemized lists of
relatively inexpensive parts typically costing about $400
per chassis. Charges for twist locks do not appear on the
B series invoices. An isolated and extremely high charge
for twist locks in an A series invoice and a long list of
charges in the matching B series invoice for a variety of
parts needed to repair the same chassis fairly tends to
show that the isolated charge for twist locks concealed the
fraudulent transfer of money from Prudential to Marine
Repair. “

Although the government suggested in its closing that
Marine Repair may have engaged in double-billing, that
argument was not improper. In the absence of the B
series, one of the puzzles in this case would have been
how Marine Repair could afford to kickback nearly half
the amount paid through the A series of invoices for the
repair of each chassis. An answer suggested by the B
series is that Marine Repair could afford such largesse
because it was collecting twice for each chassis it repaired.
Marino and O’Donnel were not on trial for concocting
such a scheme, but it was not error to permit the jury to
consider the part such double-billing might have played in
making possible the operation of the kickback scheme for
which Marino and O’Donnel were indicted.

In short, the B series was highly probative and relevant.
Any prejudice stemming from the jury’s discovery that
Marino and his company may have been engaged in a

A-17

certain amount of disgraceful behavior not charged in the
indictment was more than offset by the light the B series
cast on the means Marino, Nelson, and Marano em-
ployed to work the kickback scheme. Admission of the. B
series, therefore, was entirely proper.

The judgment of conviction is affirmed.

A-18

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT

FILED: January 22, 1981
A. Daniel Fusaro, Clerk

At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse
in the City of New York, on the twenty-second day of
January, one thousand nine hundred and eighty-one.

Present: HON. JAMES L. OAKES,
Hon. JON O. NEWMAN,
Circuit Judges

Hon. ALBERT W. COFFRIN,
District Judge

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. 80-1213
VINCENT MARINO,
Defendant-Appellant.

Appeal from the United States District Court for the
Southern District of New York

This cause came on to be heard on the transcript of record
from the United States District Court for the Southern Dis-
trict of New York, and was argued by counsel.

ON CONSIDSRATION WHEREOF, it is now hereby ordered,
adjudged, and decreed that the judgment of said District
Court be and it hereby is affirmed in accordance with the
opinion of this court.

A. DANIEL Fusaro, Clerk

/s/ Edward J. Guardaro, Deputy Clerk

A-19

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

FILED: March 18, 1981
A. Daniel Fusaro, Clerk

At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the 18th day of March,
one thousand nine hundred and eighty-one.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 80-1213

VINCENT MARINO,
Defendant-Appellant

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the defendant-appellant, Vincent Marino,

Upon consideration by the panel that heard the appeal it
is
Order that said petition for rehearing is DENIF>.

It is further noted that the suggestion for rehearing in
banc has been transmitted to the judges of the court in
regular active service and to any other judge on the panel that
heard the appeal and that no such judge has requested that a
vote be taken thereon.

/s/ A. DaNntEL Fusaro, Clerk

A-20

18 U.S.C. § 660

§ 660. Carrier's funds derived from commerce; State
prosecutions

Whoever, being a president, director, officer, or manager
of any firm, association, or corporation engaged in commerce
as a common carrier, or whoever, being an employee of such
common carrier riding in or upon any railroad car, motor-
truck, steamboat, vessel, aircraft or other vehicle of such
carrier moving in interstate commerce, embezzles, steals,
abstracts, or willfully misapplies, or willfully permits to be
misapplied, any of the moneys, funds, credits, securities,
property, or assets of such firm, association, or corporation
arising or accruing from, or used in, such commerce, in whole
or in part, or willfully or knowingly converts the same to his
own use or to the use of another, shall be fined not more than
$5,000 or imprisoned not more than ten years, or both.

The offense shall be deemed to have been committed not
only in the district where the violation first occurred but also
in any district in which the defendant may have taken or had
possession of such moneys, funds, credits, securities, property
or assets.

A judgment of conviction or acquittal on the merits under
the laws of any State shall be a bar to any prosecution
hereunder for the same act or acts.

A-21

UNITED STATES DISTRICT COURT
SOUTHERN District OF NEw YORK

UNITED STATES OF AMERICA,

Vv.
VINCENT MARINO 4 INDICTMENT
and SSS 79 Cr. 32

WILLIAM O’DONNEL,
Defendants.

COUNT ONE
The Grand Jury charges:

INTRODUCTION

1. At all times relevant to this Indictment, the defendants
VINCENT MARINO and WILLIAM O’DONNEL were executives
of Marine Repair Services, Inc., 3551 Richmond Terrace,
Staten Island, New York. Marine Repair Services, Inc. is a
marine service and repair company and is a successor com-
pany to Marine Trailers, Inc., 3551 Richmond Terrace, Staten
Island, New York.

2. Prudential Lines, [nc., One World Trade Center, New
York, New York (formerly Prudential-Grace Lines, Inc., One
New York Plaza, New York, New York and hereinafter
referred to as “Prudential Lines’’), at all times relevant to this
Indictment, was a firm and corporation engaged in commerce
as a common carrier in the steamship business.

3. John Marano, at all times relevant to this Indictment,
was the Executive Vice-President of Operations and an officer
and Director of Prudential Lines.

4. Keith Nelson, at all times relevant to this Indictment,
was the Director of Intermodal Operations and a manager of
Prudential Lines.

A-22

THE CONSPIRACY

5. From in and around August 1974 to in and around
February 1976, in the Southern District of New York and
elsewhere, the defendants VINCENT MARINO and WILLIAM
O’DONNEL and Keith Nelson and John Marano (named
herein as co-conspirators but not as defendants), together
with others known and unknown to the Grand Jury, did
unlawfully, wilfully and knowingly conspire and agree
together and with each other to embezzle, steal, abstract,
wilfully convert to their own use, and wilfully misapply and
permit to be misapplied moneys, funds, credits, securities,
properties and assets of Prudential Lines arising and accruing
from, and used in, in whole and in part, Prudential Lines’
business as a firm and corporation engaged in commerce as a
common carrier, in violation of Title 18, United States Code,
Section 660.

MEANS OF THE CONSPIRACY

6. Among the means by which the defendants VINCENT
MARINO AND WILLIAM O’DONNEL and their co-conspirators
would and did carry out the conspiracy was the following:

(a) The defendants VINCENT MARINO and WILLIAM
O’DONNEL would and did submit to Prudential Lines inflated
invoices for refurbishing and repair work which the
defendants’ co-conspirators John Marano and Keith Nelson
authorized to be performed on certain Prudential Lines
container chassis and would and did receive in payment vari-
ous Prudential Lines checks payable to Marine Repair Ser-
vices, Inc.

(b) The defendants VINCENT MARINO and WILLIAM
O’DONNEL would and did then kick-back to other co-con-
spirators including Keith Nelson and John Marano substan-
tial amounts of money in the form of checks and cash.

Overt ACTS

In furtherance of the conspiracy and to effect its objects,
the following overt acts were committed by members of the
conspiracy in the Southern District of New York and
elsewhere.

A-23

1. In and around September, 1974 the defendant
VINCENT MARINO and KEITH NELSON had a conversation
concerning the refurbishing of certain Prudential Lines
container chassis by Marine Repair Services, Inc.

2. On or about November 12, 1974 the defendant
VINCENT MARINO submitted and caused to be submitted to
Prudential Lines on behalf of Marine Repair Services, Inc.
various invoices for container chassis refurbishing work in the
total amount of $23,814.00.

3. On or about November 25, 1974 the defendant
VINCENT MARINO deposited and caused to be deposited to an
account of Marine Repair Services, Inc. a Prudential Lines
check in the amount of $23,814.00.

4. On or about November 27, 1974 the defendants
VINCENT MARINO and WILLIAM O’DONNEL delivered and
caused to be delivered to Keith Nelson a Marine Repair
Services, Inc. check payable to Container Sales, Ltd. in the
amount of $2,325.00.

5. From on or about November 29, 1974 to on or about
December 6, 1974 the defendant VINCENT MARINO submit-
ted and caused to be submitted to Prudential Lines on behalf
of Marine Repair Services, Inc. various invoices for container
chassis refurbishing work in the total amount of $44,074.80.

6. On or about December 20, 1974 the defendant
V:NCENT MARINO negotiated and caused to be negotiated a
Prudential Lines check payable to Marine Repair Services,
Inc. in the amount of $20,374.20 which was in partial pay-
ment of the invoices referred to in overt act number 5.

7. On or about January 2, 1975 the defendant VINCENT
MARINO negotiated and caused to be negotiated a Prudential
Lines check payable to Marine Repair Services, Inc. in the
amount of $23,700.60 which was the final payment on the
invoices referred to in overt act number 5.

8. On or about January 16, 1975 the defendant VINCENT
MARINO delivered and caused to be delivered to Keith Nelson
a Marine Repair Services, Inc. check payable to Container
Sales, Ltd. in the amount of $4,985.00.

A-24

9. On or about February 6, 1975 the defendant VINCENT
MARINO submitted and caused to be submitted to Prudential
Lines on behalf of Marine Repair Services, Inc. various
invoices for container chassis refurbishing work in the total
amount of $23,700.60.

10. On or about February 24, 1975 the defendant
VINCENT MARINO negotiated and caused to be negotiated a
Prudential Lines check payable to Marine Repair Services,
Inc. in the amount of $23,700.60.

11. On or about February 28, 1975 the defendant
WILLIAM O’DONNEL delivered and caused to be delivered to
Keith Nelson a Marine Trailers, Inc. check payable to
Container Sales, Ltd. in the amount of $2,840.00.

12. On or about June 3, 1975 the defendant VINCENT
MARINO submitted and caused to be submitted to Prudential
Lines on behalf of Marine Repair Services, Inc. various
invoices for container chassis refurbishing work in the total
amount of $25,855.20.

13. On or about July 8, 1975 the defendant WILLIAM
O’DONNEL delivered and caused to be delivered to Keith

Nelson a Marine Trailers, Inc. check payable to Container
Sales, Ltd. in the amount of $3,100.00.

14. On or about July 14, 1975 the defendant VINCENT
MARINO deposited and caused to be deposited to an account
of Marine Repair Services, Inc. a Prudential Lines check in
the amount of $25,855.20.

15. On or about July 29, 1975 the defendant VINCENT
MaRINO delivered to John Marano a sum of cash for John
Marano and another co-conspirator.

(Title 18, United States Code, Section 371).
COUNT TWO

The Grand Jury further charges:

1. The allegations contained in Paragraphs 1-4 of Count
One of this Indictment are hereby repeated and realleged as if
fully set forth herein.

A-25

2. In and around December 17-24, 1974, in the Southern
District of New York, the defendant VINCENT MAarINo,
Keith Nelson and John Marano did unlawfully, knowingly
and wilfully embezzle, steal, abstract, wilfully convert to their
own use and the use of others, and wilfully misapply and
permit to be misapplied monies, funds, credits, securities,
properties and assets of Prudential Lines, Inc. arising and
accruing from, and used in, in whole and in part, Prudential
Lines, Inc.’s business as a firm and corporation engaged in
commerce as a common carrier, to wit, kick-backs of substan-
tial portions of the moneys represented by two Prudential
Lines checks totalling approximately $44.074.80.

(Title 18, United States Code, Sections 660 and 2).

COUNTS THREE THROUGH FOUR
The Grand Jury further charges:

1. The allegations contained in Paragraphs 1-4 of Count
One of this Indictment are hereby repeated and realleged as if
fully set forth herein.

2. On or about the dates set forth below in the Southern
District of New York, the defendants VINCENT MARINO and
WILLIAM O’DONNEL, Keith Nelson and John Morano did
unlawfully, knowingly and wilfully embezzle, steal, abstract,
wilfully convert to their own use and the use of others, and
wilfully misapply and permit to be misapplied monies, funds,
credits, securities, properties and assets of Prudential Lines,
Inc. arising and accruing from, and used in, in whole and in
part, Prudential Lines, Inc.’s business as a firm and corpora-
tion engaged in commerce as a common carrier, to wit, kick-
backs of substantial portions of the monies represented by the
Prudential Lines checks set forth below.

Amount of
Count Date Payee Check
Three .... February 21,1975 Marine Repair $23,700.60 .
Services, Inc
ee July 11, 1975 Marine Repair $25,855.20
Services, Inc

(Title 18, United States Code, Sections 660 and 2).

FOREPERSON RosBertT B. FIsKE, JR.
United States Attorney

A-26

FiLep: April 8, 1976
Jane P. Gordon, Clerk

IN THE DISTRICT COURT OF
THE UNITED STATES

For THE MippLeE DISTRICT OF ALABAMA
EASTERN DIVISION

UNITED STATES OF AMERICA Cr. No. 76-18-E
Vv. (18 USC 660)
HERMAN WENDELL FISHER INDICTMENT

The Grand Jury charges:
COUNT I

On or about the 3rd day of August, 1975, at Cusseta,
Alabama, in the Middle District of Alabama, HERMAN
WENDELL FISHER being an employee, that is, a truck driver
for Caddo Moving and Storage Company, a company
engaged in commerce as a common carrier, and while riding
in and upon a motor truck of such Garrier moving in interstate
commerce from Shreveport, Louisiana to Lindale, Georgia,
wilfully and knowingly did embezzle, steal and convert to his
own use the sum of $1,732.73 of the monies and property of
said carrier arising and occurring from such commerce, which
said monies and property had come into the possession of
HERMAN WENDELL FISHER by virtue of his employment as
agent of the said Caddo Moving and Storage Company, in
violation of Title 18, Section 660, United States Code.

A TRUE BILL:

PARES ST ELeeaetaereany aw wy

Foreman

IRA DE MENT
UNITED STATES ATTORNEY

/s/ RoBert C. WATSON
Assistant United States Attorney

CRC 76-0080(E)

A-27

FiLep: April 9, 1980
William L. Whittaker, Clerk

IN THE UNITED STATES DISTRICT COURT
FoR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA CRIMINAL NoO.:
Plaintiff, VIOLATION:
18 U.S.C.§ 660
v. P
Teppy Ray ARNOLD, Embezzlement of

Defendant. Funds by Officer
of Rail Common
Carrier

INDICTMENT
Count One: 18 U.S.C. § 660

On or about the 3rd day of June 1975, in the City and
County of San Francisco, State and Northern District of
California,

Teppy RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $1,845.00, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count Two: 18 U.S.C. § 660

On or about the 26th day of September 1975, in the City
and County of San Francisco, State and Northern District of
California,

Teppy Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,

A-28

did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $4,160.72, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count THREE: 18 U.S.C. § 660

On or about the Ist day of December 1975, in the City
and County of San Francisco, State and Northern District of
California,

Teppy Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $3,875.00, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count Four: 18 U.S.C. § 660

On or about the Ist day of November 1976, in the City
and County of San Francisco, State and Northern District of
California,

Teppy RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $5,498.90, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count Five: 18 U.S.C. § 660

On or about the 30th day of March 1977, in the City and
County of San Francisco, State and Northern District of
California,

TEDDY RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his

A-29

own use the sum of $3,765.92, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count Six: 18 U.S.C. § 660

On or about the 2nd day of June 1977, in the City and
County of San Francisco, State and Northern District of
California,

Teppy RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $3,685.42, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

CounT SEVEN: 18 U.S.C. § 660

On or about the 22nd day of June 1977, in the City and
County of San Francisco, State and Northern District of
California,

Teppy Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $3,526.94, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

CounT Eicut: 18 U.S.C. § 660

On or about the 8th day of July 1977, in the City and
County of San Francisco, State and Northern District of
California,

Teppy Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the the sum of $2,317.51, of moneys and property of

A-30

said carrier, arising and accruing from such commerce, in
violation of Title 18, United States Code, Section 660.

CounT Nine: 18 U.S.C. § 660

On or about the 4th day of October 1977, in the City and
County of San Francisco, State and Northern District of
California,

Teppy Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $3,665.90, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

Count TEN: 18 U.S.C § 660

On or about the 2nd day of November 1977, in the City
and County of San Francisco, State and Northern District of
California,

Teppy RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $2,427.80, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

CounT ELEveN: 18 U.S.C. § 660

On or about the 20th day of March 1978, in the City and
County of San Francisco, State and Northern District of
California,

TeppyY Ray ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $2,633.23, of moneys and property of said

A-31

carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

CouNT TWELVE: 18 U.S.C. § 660

On or about the 19th day of April 1978, in the City and
County of San Francisco, State and Northern District of
California,

Teppy RAY ARNOLD,

being an officer of the Southern Pacific Transportation Com-
pany, a company engaged in commerce as a common carrier,
did willfully and knowingly embezzle, steal, and convert to his
own use the sum of $1,798.72, of moneys and property of said
carrier, arising and accruing from such commerce, in viola-
tion of Title 18, United States Code, Section 660.

A True Bill.

FOREPERSON
04/09/80

/s/ G. WILLIAM HUNTER
United States Attorney

A-32

FILED: June 13, 1977

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA Case No.
P 72-143-
v. Cr.T K
RosBert ELwoop DoDSsON

The Grand Jury charges that:

COUNT ONE

On or about November 20, 1969, at St. Petersburg,
Florida, in the Middle District of Florida,

RoBERT ELwoop DODSON

being an employee, that is, a driver of Templeton Moving and
Storage Co., Inc., Pontiac, Michigan, a corporation engaged
in commerce as a common carrier, riding in and upon a motor
truck of such carrier moving in interstate commerce from
Lyndhurst, Ohio to St. Petersburg, Florida, wilfully and
knowingly did embezzle, steal and convert to his own use
monies of the said carrier arising and accruing from such
commerce, to wit, the sum of $437.93; in violation of Title 18,
Section 660, United States Code.

COUNT TWO

On or about November 20, 1969, at Bradenton, Florida,
in the Middle District of Florida,
ROBERT ELwoop DODSON
being an employee, that is, a driver of Templeton Moving and
Storage Co., Inc., Pontiac, Michigan, a corporation engaged

in commerce as a common carrier, riding in and upon a motor
truck of such carrier moving in interstate commerce from

A-33

Youngstown, Ohio to Bradenton, Florida, wilfully and know-
ingly did embezzle, steal and convert to his own use monies of
the said carrier arising and accruing from such commerce, to
wit, the sum of $183.82; in violation of Title 18, Section 660,
United States Code.

COUNT THREE

On or about November 26, 1969, at Lake Alfred, Florida,
in the Middle District of Florida,

ROBERT ELwoop DODSON

being an employee, that is, a driver of Templeton Moving and
Storage Co., Inc., Pontiac, Michigan, a corporation engaged
in commerce as a common carrier, riding in and upon a motor
truck of such carrier moving in interstate commerce from
Pontiac, Michigan, to Lake Alfred, Florida, wilfully and
knowingly did embezzle, steal and convert to his own use
monies of the said carrier arising and accruing from such
commerce, to wit, the sum of $132.74; in violation of Title 18,
Section 660, United States Code.

A TRUE BILL

FOREMAN

JOHN L. BRIGGS
United States Attorney

/s/ HuGH N. SMITH
Assistant United States Attorney

A-34

FiLtep: April 12, 1978
Ben H. Carter, Clerk

IN THE UNITED STATES DISTRICT COURT
For THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

UNITED STATES OF AMERICA

ve. CRIMINAL
RONNIE NATHAN JOHNSON, INDICTMENT
JOsEPH H. STONE, JR., No. 78-12—R

Lum T. TAYLOR AND
James M. WILLIAMS

THE GRAND JURY CHARGES:

COUNT ONE

That, on or about the 7th day of November, 1977, in the
Northern District of Georgia and elsewhere, the defendant
JAMES M. WILLIAMS, who then was an employee of a corpora-
tion engaged in commerce as a common carrier, namely,
Yellow Freight Lines, Incorporated, and who was riding in
and upon a motortruck of Yellow Freight Lines, Incorporated
moving in interstate commerce between Tennessee and Geor-
gia, did embezzle, steal, abstract and wilfully and knowingly
convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Section 660.

COUNT TWO

That, on or about the 14th day of November, 1977, in the
Northern District of Georgia and elsewhere, the defendant
JAMES M. WILLIAMS, who then was an employee of 2. corpora-
tion engaged in commerce as a common caivier, namely
Yellow Freight Lines, Incorporated, and who was riding in
and upon a motortruck of Yellow Freight Lines, Incorporated

A-35

moving in interstate commerce between Tennessee and Geor-
gia, aided and abetted by the defendant JoseEPpH H. STONE,
Jr., did embezzle, steal, abstract and wilfully and knowingly
convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Sections 660 and 2.

COUNT THREE

That, at or about 2:30 A.M. on the 15th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant RONNIE NATHAN JOHNSON, who
then was an employee of a corporation engaged in commerce
as a common carrier, namely, Yellow Freight Lines,
Incorporated, and who was riding in and upon a motortruck
of Yellow Freight Lines, Incorporated moving in interstate
commerce between Tennessee and Georgia, aided and abetted
by the defendant JosePpH H. STONE, JR., did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Sections 660 and 2.

COUNT FOUR

That, on or about the 15th day of November, 1977, in the
Northern District of Georgia and elsewhere, the defendant,
JAMES M. WILLIAMS, who then was an employee of a corpora-
tion engaged in commerce as a common carrier, namely,
Yellow Freight Lines, Incorporated, and who was riding in
and upon a motortruck of Yellow Freight Lines, Incorporated
moving in interstate commerce between Tennessee and Geor-
gia, aided and abetted by the defendant JosepH H. STONE,
Jr., did embezzle, steal, abstract and wilfully and knowingly
convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Sections 660 and 2.

A-36

COUNT FIVE

That, at or about 10:25 P.M. on the 15th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant RONNIE NATHAN JOHNSON, who
then was an employee of a corporation engaged in commerce
as a common carrier, namely Yellow Freight Lines,
Incorporated, and who was riding in and upon a motortruck
of Yellow Freight Lines, Incorporated moving in interstate
commerce between Tennessee and Georgia, aided and abetted
by the defendant JosepH H. STONE, JR., did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce, in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Sections 660 and 2.

COUNT SIX

That, at or about 1:25 A.M. on the 16th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant James M. WILLIAMS, who then was
an employee of a corporation engaged in commerce as a
common carrier, namely, Yellow Freight Lines, Incorporated,
and who was riding in and upon a motortruck of Yellow
Freight Lines, Incorporated moving in interstate commerce
betweeen Tennessee and Georgia, did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce, in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Section 660.

COUNT SEVEN

That, on or about the 16th day of November, 1977, in the
Northern District of Georgia and elsewhere, the defendant
RONNIE NATHAN JOHNSON, who then was an employee of a
corporation engaged in commerce as a common carrier,
namely, Yellow Freight Lines, Incorporated, and who was
riding in and upon a motortruck of Yellow Freight Lines,

A-37

Incorporated moving in interstate commerce between Tennes-
see and Georgia, did embezzle, steal, abstract and wilfully
and knowingly convert to his own use and the use of others
property and assets of Yellow Freight Lines, Incorporated
used in such commerce, in whole or in part, to wit, diesel fuel,
in violation of Title 18, United States Code, Section 660.

COUNT EIGHT

That, at or about 10:15 P.M. on the 16th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant James M. WILLIAMS, who then was
an employee of a corporation engaged in commerce as a
common carrier, namely, Yellow Freight Lines, Incorporated,
and who was riding in and upon a motortruck of Yellow
Freight Lines, Incorporated moving in interstate commerce
between Tennessee and Georgia, aided and abetted by the
defendant JosepH H. Stone, JR., did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
* and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce, in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Sections 660 and 2.

COUNT NINE

That, on or about the 16th day of November, 1977, in the
Northern District of Georgia and elsewhere, the defendant
Lum T. TayLor, who then was an employee of a corporation
engaged in commerce as a common carrier, namely, Yellow
Freight Lines, Incorporated, and who was riding in and upon:
a motortruck of Yellow Freight Lines, Incorporated moving
in interstate commerce between Tennessee and Georgia,
aided and abetted by the defendant JosePpH H. STONE, JrR.,
did embezzle, steal, abstract and wilfully and knowingly con-
vert to his own use and the use of others property and assets
of Yellow Freight Lines, Incorporated used in such com-
merce, in whole or in part, to wit, diesel fuel, in violation of
Title 18, United States Code, Sections 660 and 2.

A-38

COUNT TEN

That, at or about 1:29 A.M. on the 17th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant Lum T. TAYLOR, who then was an
employee of a corporation engaged in commerce as a common
carrier, namely, Yellow Freight Lines, Incorporated, and who
was riding in and upon a motortruck of Yellow Freight Lines,
Incorporated moving in interstate commerce between Tennes-
see and Georgia, aided and abetted by the defendant JosEPH
H. STONE, JR., did embezzle, steal, abstract and wilfully and
knowingly convert to his own use and the use of others
property and assets of Yellow Freight Lines, Incorporated
used in such commerce, in whole or in part, to wit, diesel fuel,
in violation of Title 18, United States Code, Sections 660
and 2.

COUNT ELEVEN

That, at or about 1:29 A.M. on the 17th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant James M. WILLIAMS, who then was
an employee of a corporation engaged in commerce as a
common carrier, namely, Yellow Freight Lines, Incorporated,
and who was riding in and upon a motortruck of Yellow
Freight Lines, Incorporated moving in interstate commerce
between Tennessee and Georgia, aided and abetted by the
defendant JosepH H. STONE, JR., did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce, in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Sections 660 and 2.

COUNT TWELVE

That, at or about 9:20 P.M. on the 17th day of November,
1977, in the Northern District of Georgia and elsewhere, the
defendant Lum T. TayLor, who then was an employee of a
corporation engaged in commerce as a common carrier,
namely, Yellow Freight Lines, Incorporated, and who was
riding in and upon a motortruck of Yellow Freight Lines,

A-39

Incorporated moving in interstate commerce between Tennes-
see and Georgia, aided and abetted by the defendant JosEPH
H. STONE, JR., did embezzle, steal, abstract and wilfully and
knowingly convert to his own use and the use of others
property and assets of Yellow Freight Lines, Incorporated
used in such commerce, in whole or in part, to wit, diesel fuel,
in violation of Title 18, United States Code, Sections 660
and 2.

COUNT THIRTEEN

That, at or about 10:07 P.M. on the 17th day of
November, 1977, in the Northern District of Georgia and
elsewhere, the defendant James M. WILLIAMS, who then was
an employee of a corporation engaged in commerce as a
common carrier, namely, Yellow Freight Lines, Incorporated,
and who was riding in and upon a motortruck of Yellow
Freight Lines, Incorporated moving in interstate commerce
between Tennessee and Georgia, aided and abetted by the
defendant JosePpH H. STONE, JR., did embezzle, steal,
abstract and wilfully and knowingly convert to his own use
and the use of others property and assets of Yellow Freight
Lines, Incorporated used in such commerce, in whole or in
part, to wit, diesel fuel, in violation of Title 18, United States
Code, Sections 660 and 2.

COUNT FOURTEEN

That, on or about the 9th day of January, 1978, in the
Northern District of Georgia and elsewhere, the defendant
JAMES M. WILLIAMS, who then was an employee of a corpora-
tion engaged in commerce as a common carrier, namely,
Yellow Freight Lines, Incorporated, and who was riding in
and upon a motortruck of Yellow Freight Lines, Incorporated
moving in interstate commerce between Tennessee and Geor-
gia, aided and abetted by the defendant JoseEpH H. STONE,
Jr., did embezzle, steal, abstract and wilfully and knowingly
convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Sections 660 and 2.

A-40

COUNT FIFTEEN

That, on or about the 22nd day of January, 1978, in the
Northern District of Georgia and elsewhere, the defendant
James M. WILLIAMS, who then was an employee of a corpora-
tion engaged in commerce as a common carrier, namely,
Yellow Freight Lines, Incorporated, and who was riding in
a 4d upon a motortruck of Yellow Freight Lines, Incorporated
moving in interstate commerce between Tennessee and Geor-
gia, aided and abetted by the defendant JosepH H. STONE,
Jr., did embezzle, steal, abstract and wilfully and knowingly
convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Sections 660 and 2.

COUNT SIXTEEN

That, on or about the 23rd day of February, 1978, in the
Northern District of Georgia and elsewhere, the defendant
Lum T. TAYLOR, who then was an employee of a corporation
engaged in commerce as a common carrier, namely, Yellow
Freight Lines, Incorporated, and who was riding in and upon
a motortruck of Yellow Freight Lines, Incorporated moving
in interstate commerce between Tennessee and Georgia, did
embezzle, steal, abstract and wilfully and knowingly convert
to his own use and the use of others property and assets of
Yellow Freight Lines, Incorporated used in such commerce,
in whole or in part, to wit, diesel fuel, in violation of Title 18,
United States Code, Section 660.

COUNT SEVENTEEN

That, on or about the 4th day of March, 1978, in the
Northern District of Georgia and elsewhere, the defendant
James M. WILLIAMS, who then was an employee of a corpora-
tion engaged in commerce as a common carrier, namely,
Yellow Freight Lines, Incorporated, and who was riding in
and upon a motortruck of Yellow Freight Lines, Incorporated
moving in interstate commerce between Tennessee and Geor-
gia, aided and abetted by the defendant JosepH H. STONE,
Jr., did embezzle, steal, abstract and wilfully and knowingly

A-41

convert to his own use and the use of others property and
assets of Yellow Freight Lines, Incorporated used in such
commerce, in whole or in part, to wit, diesel fuel, in violation
of Title 18, United States Code, Sections 660 and 2.

A True Bill

/s/ GeorGce C. Warp
Foreman

WILLIAM L. HARPER
United States Attorney

RICHARD WILE
Assistant United States Attorney

A-42

Fitep: November 15, 1978

UNITED STATES DISTRICT COURT
For THE NORTHERN DISTRICT OF GEORGIA

EASTERN DIVISION

78 CR 843 VIOLATION:
TITLE 18, UNITED

UNITED STATES OF AMERICA STaTES CODE,
SECTION 660

7 r AND TITLE 40,
Tuomas C, MCCALL UNITED STATES
Cope, SECTION
20(7)(B)

THE SPECIAL MARCH 1978 GRAND JURY CHARGES:

From on or about October 13, 1976 to and including
December 16, 1977, at Chicago, in the Northern District of
Illinois, Eastern Division,

Tuomas C. Mc CALL, Jr.,

defendant herein, knowingly and wilfully did make and cause
to be made false entries in the accounts of a book of accounts
kept by the I}linois Central Gulf Railroad Company, a carrier
regulated by the Interstate Commerce Commission, by caus-
ing to be entered and recorded certain entries in said carrier’s
Overcharge Reserve Fund Account which purported to show
that certain checks totalling approximately $80,273.05 and
drawn on the bank accounts of said carrier were used to pay
expenses incurred in the business of said carrier, when, in
fact, said checks were not used for such purpose;

In violation of Title 49, United States Code, Section
20(7)(b).

A-43

COUNT TWO
THE SPECIAL MARCH 1978 GRAND JURY CHARGES:

On or about October 13, 1976, at Chicago, in the North-
ern District of Illinois, Eastern Division,

Tuomas C. Mc CALL, JrR.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft No. 380257, dated October
13, 1976, in the amount of approximately $5,000.00 payable
to Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT THREE

THE SPECIAL MARCH 1978 GRAND JURY CHARGES:

On or about October 22, 1976, at Chicago, in the North-
ern District of Illinois, Eastern Division,

Tuomas C. Mc CALL, JR.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft, No. 381122, dated October
22, 1976, in the amount of approximately $5,000.00 payable
to Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT FOUR
The SPECIAL MARCH 1978 GRAND Jury charges:

On or about December 3, 1976, at Chicago, in the North-
ern District of Illinois, Eastern Division,

A-44

Tuomas C. McCALL, Jr.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft, No. 383298, dated December
3, 1976, in the amount of approximately $8,400.00 payable to
Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT FIVE
The SpeciIAL MARCH 1978 GRAND JuRY charges:

On or about January 24, 1977, at Chicago, in the North-
ern District of Illinois, Eastern Division,

THomas C. MCCALL, JR.,

defendant herein, being an officer and manager of Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft, No. 385592, dated January
' 24, 1977; in the amount of approximately $6,420.00 payable
to Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT SIX
The SPECIAL MARCH 1978 GRAND JuRY charges:

On or about April 22, 1977, at Chicago, in the Northern
District of Illinois, Eastern Division,

Tuomas C. McCALL, JrR.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract

A-45

and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft No. 390420, dated April 22,
1977, in the amount of approximately $7,660.00 payable to
Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT SEVEN
The SPECIAL MARCH 1978 GRAND JuRyY charges:

On or about June 10, 1977, at Chicago, in the Northern
District of Illinois, Eastern Division,

THomas C. MCCALL, JR.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Gulf Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft No. 392768, dated June 10,
1977, in the amount of approximately $7,860.00 payable to
Meyer Industries;

In violation of Title 18, United States Code, Section 660.

COUNT EIGHT
The SPECIAL MARCH 1978 GRAND Jury charges:

On or about June 13, 1977, at Chicago, in the Northern
District of Illinois, Eastern Division,

Tuomas C. MCCALL, JrR.,

defendant herein, being an officer and manager of the Illinois
Central Gulf Railroad Company, a corporation engaged in
commerce, as a common carrier, did embezzle, steal, abstract
and wilfully misapply the money, funds and assets of the
Illinois Central Railroad, in whole or in part arising and
accruing from interstate commerce, namely, Illinois Central
Gulf Railroad Company Draft, No. 392770, dated June 13,

A-46

1977, in the amount of approximately $6,840.00 payable to
T & T Industries;

In violation of Title 18, United States Code, Section 660.

COUNT NINE
The SPECIAL MARCH 1978 GRAND Jury charges:

On or about June 17, 1977, at Chicago, in the Northern
District of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2135%3A1. Public record. Not legal advice.