The United States of America v. Max Benjamin Berger, Sheldon Polakoff, Morris Satz ( 1964 )

WATERMAN, Circuit Judge.

Defendants were convicted of stealing goods from a railroad car, which goods were part of an interstate shipment, in violation of 18 U.S.C. § 659, and of conspiring to commit this federal offense, in violation of 18 U.S.C. § 371. They were sentenced to five years imprisonment on each count, the sentences to run concurrently. All three defendants appeal from the judgments of conviction under 18 U.S.C. § 659, claiming that the goods they stole were not part of an interstate shipment. Defendant Satz also appeals from the judgment of conviction under 18 U.S.C. § 371, claiming that there was insufficient proof that he knowingly participated in the conspiracy. We affirm on the first branch of the appeal and do not reach the second.

The undisputed facts relating to the violation of 18 U.S.C. § 659 are as follows: On May 10, 1961 the New York Central Railroad left an empty gondola car beside the plant of the Anaconda American Brass Company in Buffalo, New York. Anaconda filled the car with brass slag and scrap brass for shipment to a refinery where the copper contained in the brass would be reclaimed. The Company prepared a bill of lading which specified delivery by the New York Central to the Long Island Railroad at a siding on Long Island, New York. These transactions occurred according to a continuing arrangement between Anaconda and the New York Central.

On May 11, 1961 the yard conductor of the New York Central picked up the loaded car, and, pursuant to a private agreement with at least two of the defendants, diverted the car from its normal route to the nearby premises of the Skillen Iron and Metal Company. There the defendants stole 66,640 pounds of brass waste from the car. The car then continued its journey to a weighing station, where the contents of the ear were found to weigh 116,060 pounds. The rated capacity of the car was 140,000 pounds.

Shortly before or after the weighing of the ear, a waybill was made out by the New York Central freight agent indicating that the shipment would be routed through Weehawken, New Jersey. The car proceeded to its destination by the prescribed route. This was the only routing used by the New York Central for shipments from Buffalo to the Long Island Railroad on Long Island. The New York Central, however, had on file with the Interstate Commerce Commission two other tariffs providing for routes wholly within New York State between these two points.

The defendants contend that the goods they stole were not part of an interstate shipment at the time of the theft. They base their argument on three grounds. First, as the yard conductor who took the car from the shipper’s premises intended throughout to divert it from its proper route for the purpose of plundering its contents, the ear had not begun its interstate journey when the theft took place. Second, as the car would have been overweight and consequently would have been returned to the shipper if the thieves had not lightened its load, the car was not on an interstate journey when the theft occurred. Third, as the route through another state was not decided upon until after the theft, the car had not begun its interstate journey when the theft took place.

To our knowledge, this is the first case under 18 U.S.C. § 659 to present these issues. There are a number of other cases concerning the point at which, within the meaning of the statute, an interstate shipment begins, but they do not even give guidance by analogy.¹ In addition, as one of the decisions in our court points out, cases from other areas of the law such as taxation are likewise an unreliable guide to the interpretation of this statute. United States v. Fox, 126 F.2d 237 (2 Cir. 1942); accord, United States v. Yohn, 275 F. 232, 233-34 (S.D.N.Y.1921) (L. Hand, J.), aff’d, 280 F. 511 (2 Cir. 1922); United States v. Moynihan, 258 F. 529, 532 (3 Cir. 1919).

In approaching the defendants’ contentions, we must remember that we are dealing with a criminal statute, and that criminal statutes are to be strictly construed, Yates v. United States, 354 U.S. 298, 310, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), but we must also be mindful that Congress has here undertaken to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions. Cf. North American Co. v. SEC, 327 U.S. 686, 705, 66 S.Ct. 785, 90 L.Ed. 945 (1946).

We do not agree that the interstate journey was delayed until after the theft took place because the intent of the yard conductor was to divert the car from its proper course until it could be plundered. That person was also an employee of the carrier to whom the shipper meant to deliver the car and was acting under the color of his office as a yard conductor in receiving the ear. These facts are enough to mark the beginning of the interstate journey from the moment the car left the premises of the shipper.

There is some support for the conclusion we reach here in United States v. Fox, supra. In that case, also, the person who received the goods from the shipper in behalf of the carrier later participated in the theft. The court did not even bother to discuss the possibility that this fact might have delayed the start of the interstate journey.

Likewise, we do not agree that the interstate journey began only after the theft took place for the reason that prior to the theft the car was overweight and would have been returned to the shipper. The criminal jurisdiction of the United States over a shipment interstate in its conception ought not to be destroyed simply because an unforeseen happenstance could stop the shipment before it crosses a state line.

Finally, we do not agree that the start of the interstate journey was delayed until after the theft because not until then did the carrier designate an interstate route for this particular shipment. It is enough that the shipper delivered goods to the carrier for carriage, not having specified an intrastate route, and that the carrier subsequently chose an interstate route in the reasonable exercise of its commercial judgment, pursuant to authority vested in it by the shipper to choose the route which would most conveniently get the goods to their destination. Whether even less would suffice to mark the beginning of the interstate journey from the time the car left the shipper’s premises we do not now decide.

It is true, as the defendants point out, that United States v. Fox spoke of “an interstate journey, intended to be such from the outset,” 126 F.2d 237, 238. But we feel that the intent prescribed by this rule need only be an intent that the goods travel to their ultimate destination. There need not be an intent from the outset that the goods travel by an interstate route. Of course this distinction is unnecessary in the ordinary case, such as Fox, in which the ultimate destination of the interstate shipment is in a different state.

We conclude that the judgments of conviction under 18 U.S.C. § 659 should be sustained. Defendants were sentenced to five years imprisonment under these judgments. Satz’s judgment of conviction under 18 U.S.C. § 371 did not prolong this sentence. Therefore it is unnecessary for us to peruse the exceedingly lengthy trial record to determine whether there was sufficient proof that Satz knowingly participated in the conspiracy. Any error in this regard would, for better or worse, be classified as harmless. Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Cardillo, 316 F.2d 606, 614 (2 Cir. 1963); United States v. Cordo, 186 F.2d 144, 147 (2 Cir. 1951), cert. denied, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686 (1951).

Affirmed.

1 . United States v. Sherman, 171 F.2d 619 (2 Cir. 1948), cert. denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed.2d 1738 (1949); United States v. Fox, 126 F.2d 237 (2 Cir. 1942); United States v. Gollin, 166 F.2d 123 (3 Cir. 1948), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151 (1948); Wolk v. United States, 94 F.2d 310 (8 Cir. 1938), cert. denied, 303 U.S. 658, 58 S.Ct. 763, 82 L.Ed. 1118 (1938); Sharp v. United States, 280 F. 86 (5 Cir. 1922), cert. denied, 260 U.S. 730, 43 S.Ct. 92, 67 L.Ed. 485 (1922); Lowery v. United States, 271 F. 946 (7 Cir. 1921).