United States v. Samuel Kenneth Garafola

471 F.2d 291

UNITED STATES of America, Plaintiff-Appellee,
v.
Samuel Kenneth GARAFOLA, Defendant-Appellant.

No. 72-1362.

United States Court of Appeals,
Sixth Circuit.

Nov. 29, 1972.

John D. O'Connell, Detroit, Mich., for defendant-appellant.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before WEICK, EDWARDS and MILLER, Circuit Judges.

PER CURIAM.

1

Appellant in this case was convicted after jury trial in the Eastern District of Michigan, Southern Division, on a charge of conspiring with three others, in violation of 18 U.S.C. Sec. 371 (1970), to steal a trailer load of liquor which was moving in interstate commerce. On this appeal he concedes participation in the conspiracy alleged, but argues that he was not guilty of any federal offense, since he claims he did not know that the goods to be stolen were moving in interstate commerce.

2

There is ample testimony in this record that the trailer load of liquor which appellant conspired to steal (and did help illegally to move out of the freight yard) was in fact in interstate shipment and no appellate issue is presented on this score. Our issue concerns only the concept of scienter.

3

In dealing with a conviction for transporting stolen goods which were moving in interstate commerce, in violation of 18 U.S.C. Sec. 2314 (1970), this court recently held that the government had to prove that in fact the goods were in interstate commerce when stolen, but that it did not have to prove that the transporter knew that the stolen goods were actually in interstate commerce. United States v. White, 451 F.2d 559 (6th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S. Ct. 1522, 31 L. Ed. 2d 804 (1972); see also United States v. Wages, 458 F.2d 1270 (6th Cir. 1972). This holding, however, does not answer the problem of our instant appeal, since conceptually the federal crime of conspiracy does require proof of an intent, actual or implied, to violate a federal law.

4

On this score this court has adopted the following rule:

5

As for this conspiracy charge it was necessary to show that the conspiracy encompassed an anti-federal intent, or that its scope was sufficiently broad as to include an anti-federal intent, i. e. intent to steal from interstate commerce, or to steal goods without regard to their source. Nassif v. United States, 370 F.2d 147, 152 (8th Cir.). It is beyond dispute that the conspiracy involved in this case was sufficiently broad. United States v. Cimini, 427 F.2d 129, 130 (6th Cir.), cert. denied, 400 U.S. 911, 91 S. Ct. 137, 27 L. Ed. 2d 151 (1970).

6

See also Nassif v. United States, 370 F.2d 147 (8th Cir. 1966).

7

The language just quoted from our court's opinion in Cimini is directly applicable to and decisive of the principal issue in this case.

8

As for the trial judge's charge, when it is taken in context, we find no reversible error.

9

The judgment of the District Court is affirmed.