United States v. Charles Ronald McElroy

644 F.2d 274, 1981 U.S. App. LEXIS 19173
CourtCourt of Appeals for the Third Circuit
DecidedMarch 17, 1981
Docket79-2516
StatusPublished
Cited by13 cases

This text of 644 F.2d 274 (United States v. Charles Ronald McElroy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Ronald McElroy, 644 F.2d 274, 1981 U.S. App. LEXIS 19173 (3d Cir. 1981).

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

The National Stolen Property Act prohibits the transportation in interstate commerce of forged checks. In this appeal, the defendant argues that the prosecution had to prove that the checks were altered before they were taken over a state line. We conclude that if an unauthorized signature is placed on a check at any point during interstate movement, either before or after a state border is crossed, the statute has been violated. We find sufficient evidence to support the convictions on two counts charging such offenses. We do not, however, find adequate evidentiary support for a conviction alleging a violation of the Dyer Act and direct an acquittal on that count.

The defendant was indicted for transporting two forged checks from Youngstown, Ohio, to western Pennsylvania in violation of 18 U.S.C. § 2314 (1976) (counts I & III). In addition, he was charged with transporting a stolen automobile from Pennsylvania to Ohio in violation of 18 U.S.C. § 2312 (1976) (count II). A jury returned guilty verdicts on all three counts, and the court imposed concurrent sentences.

[276]*276The checks forming the basis of the indictment were drawn on the Dollar Savings & Trust Company of Youngstown, Ohio, and had been stolen from a labor union in that city in early 1977. On discovery of the theft, the account was closed.

In October 1978, the defendant appeared at the Don Allen Chevrolet agency in Pittsburgh, Pennsylvania, and ordered an automobile for $6,706. He said his home was in Warrensville Heights, Ohio, and that he would return the following day with a credit union check in payment. He reappeared as promised and said that the car was to be titled in Ohio, signed forms to that effect, and tendered a check on the Dollar Savings Bank of Youngstown already drawn in the amount of $6,909. The car was delivered to the defendant, and he drove off. The check was one of those stolen from the union, and the signature was forged. The Don Allen Company called the Youngstown bank the following morning and learned that the union account had been closed, so no attempt was made to negotiate the check.

The evidence applicable to count III of the indictment revealed a similar method of operation. In December 1978, the defendant went to Rini Boat Sales in Beaver, Pennsylvania, and inquired about purchasing a boat. He telephoned a week later and told the dealer that he was going to buy a boat and trailer, but had to get a check from his credit union. He telephoned again on the evening of the same day and asked the proprietor to wait, stating that he was at rest stop on the Ohio Turnpike.

The defendant arrived at Rini Boat Sales in a pickup truck bearing Ohio plates that he said was owned by a friend. He delivered a check already imprinted by a check writing machine. The defendant was given a certificate stating that the trailer was to be registered in Ohio and drove away with the boat and trailer. This check also had been stolen from the union and the signature forged. The proprietor telephoned the Youngstown bank the following morning and, learning that the account had been closed, made no attempt to cash the check.

Count II of the indictment charged that the defendant transported the car he had stolen from Don Allen to Ohio. There was no direct evidence to show where the car was driven after it left the dealer’s premises in Pittsburgh.

Common to all three counts was the testimony of an FBI agent that the defendant admitted living in East Liverpool, Ohio, during the time the checks were delivered to the auto and boat dealers.

I. THE FORGED CHECK COUNTS

The defense concedes that the only issue before us is whether the interstate commerce requirement for federal criminal jurisdiction has been satisfied. This issue is purely one of statutory interpretation, no contention having been made that a commerce clause nexus would fail to satisfy constitutional prerequisites for federal jurisdiction.

In pertinent part, 18 U.S.C. § 2314 states, “Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any ... forged ... securities . .., knowing the same to have been . .. forged ... [sjhall be fined ... or imprisoned ... or both.”1 Section 10 of the same title provides, in part, “The term ‘interstate commerce’, as used in this title, includes commerce between one State . .. and another State....”

The defendant contends that to convict, the prosecution had to show that the check was forged before it crossed a state line. The government argues that if the check was taken from Ohio to Pennsylvania, even if the actual forgery occurred in the latter state, the violation was complete because the interstate character of the transportation persisted.

The trial court accepted the government’s position and charged that “transportation within the destination state here, Pennsylvania, may be considered transportation in interstate commerce if it is a continuation of the movement that began out of state.”

[277]*277There is surprisingly little variety to the case law applying § 2314 to forged check transactions. Most opinions hold that the interstate commerce requirement is satisfied if, after the defendant negotiates a forged cheek, it travels interstate in the bank collection process. See, e. g., Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Newson, 531 F.2d 979 (10th Cir. 1976). “There is no requirement of actual physical transportation by a defendant and it is sufficient that a defendant cause the instrument to be transported by the negotiation process.” Id. at 981; 18 U.S.C. § 2(b) (1976). To the same effect, see United States v. Sciortino, 601 F.2d 680, 683 (2d Cir. 1979); United States v. Ackerman, 393 F.2d 121, 122 (7th Cir. 1968). As the Court of Appeals for the Tenth Circuit pointed out in Newson, “The essence of the offense is the fraudulent scheme itself and the interstate element is only included to provide a constitutional basis for the exercise of federal jurisdiction.” 531 F.2d at 98.

An alternative method of proof emerged from another line of cases beginning with Castle v. United States, 287 F.2d 657 (5th Cir. 1961). There, the government proved that the defendant forged money orders in Pennsylvania and later cashed them in Texas. No question was raised about the applicability of § 2314 in that factual setting, and there is no doubt that the interstate commerce aspect was satisfied.

By the curious metamorphosis sometimes seen in decisional law, some courts have built Castle

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Bluebook (online)
644 F.2d 274, 1981 U.S. App. LEXIS 19173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-ronald-mcelroy-ca3-1981.