United States v. Dove

629 F.2d 325

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 12, 1980
• Docket: Nos. 79-5297 to 79-5299
• Status: Published

Opinions

JAMES DICKSON PHILLIPS, Jr., Circuit Judge:

David Coleman Dove appeals his conviction under 18 U.S.C. § 2315 for the receipt of stolen goods moving in interstate commerce; Robert B. Johnston, Jr. appeals his conviction under 18 U.S.C. § 2314 for the transportation of stolen goods in interstate commerce; and Jackie H. Morrow appeals his conviction under 18 U.S.C. § 2312 for the transportation in interstate commerce of a stolen motor vehicle. Appellants contend that the goods in question had lost their status as “stolen” within the meaning of the statutes before the goods came into their possession, and that they were entrapped. We affirm the convictions of Dove and Johnston, but believe that the motor vehicle transported by Morrow had effectively been recovered between the time of its theft and the time that he transported it, and accordingly reverse his conviction.

I

“Operation Ambush,” an undercover investigation of the trafficking of stolen automobiles in South Carolina, began in February 1978, when the Federal Bureau of Investigation obtained the cooperation of Gene Tillman Baker. For Baker the alternative to cooperation was prosecution for transporting a stolen bulldozer from Georgia. The F.B.I. set Baker up in a used car business, Apache Auto Sales, in West Columbia, South Carolina. There Baker was to cultivate contacts and develop information about the trafficking of stolen automobiles.

Baker managed to ingratiate himself with George Lovell Hutto. Hutto was involved in an automobile theft ring operating out of the West Columbia and Lamar, South Carolina areas. In mid-March 1978, Baker purchased a stolen 1974 Chevrolet Nova from Hutto for $300.¹ After F.B.I. agents had photographed the car and taken its vehicle identification number, Baker placed it on the lot of Apache Auto Sales. There it remained for a little over a month. In April 1978, Baker negotiated the sale of the Nova to Jackie H. Morrow and his brother, Jerry Lee Morrow.² The Morrows paid $400 for the car and returned with it to their home in Alabama.

In addition to his involvement in automobile theft, Hutto aspired to involvement in the theft of heavy equipment. Hutto did not know how to operate heavy equipment, however, nor did he have the equipment to transport it. Baker provided the knowledge and the equipment that Hutto lacked. The F.B.I. instructed Baker not to initiate any criminal activity, but to assist Hutto in stealing anything that Hutto wished to steal. It was with the assistance of Baker that the two bulldozers here in question were stolen. Both bulldozers were stolen from construction sites, one in Martinez, Georgia, the other in Murraywood, South Carolina. In each case Hutto initially spotted the accessible bulldozers, then Hutto and Baker returned with Baker’s truck and three-axle trailer. Baker started the bulldozers with a skeleton key and maneuvered them onto the trailer. The two men shared the driving of the truck.

Hutto negotiated the sale of these bulldozers in separate transactions to defendants Dove and Johnston. Baker was present on both occasions. Hutto told both. Dove and Johnston that there was “no paper work” connected with the sale. It also appears that the bulldozers were sold for approximately one quarter their market value.

II

A.

Defendants argue that the goods here in question — the two bulldozers and the 1974 Nova — were not “stolen” at the time they took possession of them, because of the control exercised over the goods by Baker as an operative of the F.B.I. They rely in this on United States v. Cohen, 274 F. 596 (3d Cir. 1921). In Cohen an employee of an express company discovered that the address of the consignee of a package had been replaced by the address of the defendant. The company went through with the delivery. After accepting delivery of the package, the defendant was arrested. Following earlier English common law cases, the court held that Cohen had not received stolen goods:

When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost, and the subsequent delivery of the property by the owner or agent to a particeps criminis, for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime, for in a legal sense he does not receiye stolen property.

Id. at 599.

Because law enforcement officers hold recaptured stolen goods in trust for the true owner, the courts have uniformly held the police to be agents of the owner for purposes of the rule. See, e. g., People v. Rojas, 55 Cal.2d 252, 358 P.2d 921, 925, 10 Cal.Rptr. 465, 469 (1961); United States v. Cawley, 255 F.2d 338, 340 (3d Cir. 1958). The courts have not held the police to a duty immediately to take possession of goods known to be stolen, however. Thus a distinction has emerged between the actual recovery of stolen goods and the mere observation of those goods for the purpose of apprehending the persons who take possession of them. In Copertino v. United States, 256 F. 519 (3d Cir. 1919), a case that preceded Cohen, two railroad detectives.discovered two copper bars that had been stolen from the railroad and hidden in a cemetery immediately adjacent to the tracks. One of the detectives went for assistance while the other watched the bars from a railroad car 200 to 300 feet away. While awaiting his partner’s return, the detective secreted in the railroad car observed the defendants drive up and load the bars into their automobile.

The court rejected the defendants’ contention that the discovery of the bars constituted a recovery:

The detectives did not take or attempt to take the stolen copper in their possession; they did not exercise or attempt to exercise any control or dominion over it. The most that they did was to watch it, presumably to see what would happen to it, if anything, and to prevent its eventually being carried away, until the “relief” for which they had sent could arrive. The copper had not, therefore, come into either the actual or constructive possession of the owner.

Id. at 521.

There is no blinking the inconsistency of the modern cases in applying this distinction between surveillance and actual recovery. The government relies heavily on United States v. Egger, 470 F.2d 1179 (9th Cir. 1972). There the defendant, Egger, was a lawyer representing a bank robber. Egger passed a note from his client to his client’s co-defendant. The note instructed the co-defendant, who was free on bail, to retrieve from a safe deposit box a portion of the stolen money and give it to Egger. Egger knew of the contents of the note and of the safe deposit box. He did not know, however, that his client’s co-defendant had agreed to cooperate with the prosecution. F.B.I. agents went with the co-defendant to retrieve the money. After the agents had counted the money and recorded the serial numbers, the co-defendant delivered it to Egger.

The court held that the case was more like Copertino than Cohen :

The F.B.I. never assumed “actual, physical possession” of the stolen property. To be sure, a government agent traveled with Beverly [the co-defendant], counted the money, and recorded serial numbers, but these actions were performed as a form of observation and surveillance rather than as possession on behalf of the rightful owner. The stolen money was not being returned to its owner when the government agent counted the money instead of asking Beverly to count the bills and call out their serial numbers.

Id. at 1181.

The court seemed more moved by the fact that the defendant was made no less culpable by the role of the F.B.I. agents, and expressed concern for the effect of a contrary result on covert police work. “Extension of the common-law rule to bar this prosecution would serve no useful purpose,” the court said, “and would merely create a fringe benefit for criminals.” Id. at 1181.

Defendants, on the other hand, refer to Egger as “discredited,” and rely instead on United States v. Monasterski, 567 F.2d 677 (6th Cir. 1977). There police arrested three teenagers caught stealing tires from a boxcar. The three agreed to cooperate with the police and carry through with their intended disposition of the tires. The police marked the tires for identification and provided a van for their transportation. In reversing the conviction of the man to whom the teenagers delivered the tires, the court conducted an independent review of the Cohen holding, and concluded that it was still valid:

All would agree that at some point in time the goods in this case ceased being stolen goods. We must decide at what point the goods lost that status in contemplation of the law. We feel the best and only workable rule is the common law rule — viz, the goods lost their stolen character immediately upon being recovered by the owner or his agent. Trying to choose some later point in time to support the conviction in this case would necessitate a strained reading of the words involved and would yield unnecessary uncertainty.

Id. at 681 (footnote omitted).

It did not matter that the defendant had the “precise culpable state of mind” necessary for a conviction:

Our law does not punish bad purpose standing alone . . .; instead we require that mens rea accompany the actus reus specifically proscribed by statute. It is one of the most fundamental postulates of our criminal justice system that conviction can result only from a violation of clearly defined standards of conduct. We must apply this principle evenhandedly and not be swayed by our attitudes about the moral culpability of a particular defendant.

Id. at 683. The court specifically rejected Egger as the product of “tortured reasoning.” Id. at 683.

The ease most like the instant one on its facts is Barnes v. United States, 313 A.2d 106 (D.C.App.1973). There a wholesale liquor distributorship plagued by employee theft hired a private investigator to work in an undercover capacity. The investigator was assigned to work as the helper of a salesman suspected of theft. After delivering two fewer cases of vodka to one customer than the customer had ordered, the salesman drove to the store of the defendant. The defendant agreed to purchase the two extra cases. The investigator then delivered the vodka to the back of the defendant’s store while the salesman collected from the defendant.

The court held that the participation of the investigator in the crime did not constitute recovery of the vodka:

Fairley was hired by the owner as an undercover agent to cooperate with suspected thieves for the purpose of detecting them in the commission of a crime. Consistent with this purpose and in response to Spriggins’ [the driver] order, he delivered the stolen vodka to appellant. At that time he was acting under Sprig-gins’ direction as part of Spriggins’ general criminal design. This delivery was therefore performed as a form of observation and surveillance rather than as a recovery of property on behalf of the rightful owner. Accordingly, we are of the opinion that the vodka was still stolen property when received by appellant.

Id. at 109.

B.

In applying this body of law we do not pretend that the cases speak with one voice and make inevitable the result we reach. We look instead to the purpose of the rule and of the distinction between “recovery” and “observation.” There must come a time when goods recaptured by the police cease being “stolen” in contemplation of the law. On the other hand, that principle should not be applied in such a way that “the difficulties in apprehending criminals in cases such as this would be immeasurably increased, and without reason.” Copertino, 256 F. at 521.

With respect to the two bulldozers, we agree with the court in Barnes that stolen property does not lose that status because of the participation of an undercover agent in the crimes of another. Baker was at all times acting under the general criminal design of Hutto. Baker’s possession of the bulldozers, whether or not in the immediate presence of Hutto, was not recovery for the owner but part of that criminal design. The conduct of Baker in the theft and sale of the bulldozers should be viewed as a form of observation.

We see no basis on which to hold that the Nova purchased by Morrow retained its status as “stolen,” however. Baker bought the car from Hutto with funds provided to him for that purpose by the F.B.I. When Hutto sold the car he lost all connection with it. The car sat on the Jot of Apache Auto Sales in the actual and exclusive possession of the F.B.I. and its operative, Baker, for over a month. Morrow undoubtedly believed that he was buying a stolen car. We agree with the court in Monasterski, however, that that bad purpose, standing alone, will not support a conviction.

Ill

Dove and Johnston also argue that they were entrapped. It is only the inducements of government agents, however, that give rise to an entrapment defense. United States v. Perl, 584 F.2d 1316 (4th Cir. 1978). Dove and Johnston were induced to purchase the bulldozers by Hutto. Baker’s involvement as a silent partner in the transaction does not change the essential “private entrapment” nature of this argument.

Believing that the motor vehicle transported by Morrow was not “stolen” within the meaning of the statute, we reverse his conviction. We find no error with respect to the convictions of Dove and Johnston, and accordingly we affirm their convictions.

AFFIRMED IN PART; REVERSED IN PART.

1 . Morrow argues that the Nova was not “stolen” to begin with, but was an “insurance give-up.” It appears that most of Hutto’s, “thefts” were in fact with the assistance of the owner, who then filed fraudulent insurance claims. Because we hold that the Nova had, in any event, lost its status as “stolen” by the time Morrow took possession of it, we need not address these contentions.

2 . Jerry Lee Morrow also was convicted of violating 18 U.S.C. § 2312, but does not appeal.