United States v. Leppo

• Court: Court of Appeals for the First Circuit
• Decided: May 27, 1999
• Docket: 98-1604
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1604



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                           ERIC LEPPO,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]


Before



                     Torruella, Chief Judge,

           Aldrich and Cudahy, Senior Circuit Judges.


Francis J. DiMento with whom DiMento & Sullivan, James H.

Feldman, Jr., and Law Offices of Alan Ellis were on brief for

appellant.

     Jeanne M. Kempthorne, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.


May 27, 1999


ALDRICH, Senior Circuit Judge.  Eric Leppo was indicted

for and ultimately found guilty of causing the interstate

transportation of stolen commercial polyester film in violation of

18 U.S.C.  2314 and, see post, 2(b).  His appeal is from the

final judgment.  Nowhere in the record is there to be found any

expressed saving of rights.  In his brief defendant's statement of

the issue reads, "Was the evidence sufficient . . . ?"  The

government does not claim defendant did not adequately save this

question, and we accept.  Where the facts were agreed to, and the

court discussed legal adequacy with counsel at length, it would be

unfair to do otherwise.  However, we affirm.

  The first paragraph of  2314, and the one to which we

refer, presently reads as follows:

    Whoever transports, transmits, or transfers in

  interstate or foreign commerce any goods,

  wares, merchandise, securities or money, of

  the value of $5,000 or more, knowing the same

  to have been stolen, converted, or taken by

  fraud [shall be punished.]



This provision, lacking "cause," was enacted in 1948 in

consolidating several sections from the 1940 edition of the United

States Code.  See Act of June 25, 1948, ch. 645, 62 Stat. 683, 806. 

The relevant predecessor section had provided punishment for those

who cause such interstate transportation as well:  "Whoever shall

transport or cause to be transported in interstate or foreign

commerce any goods . . ."  18 U.S.C.  415 (1940) (emphasis added). 

"[C]ause" was transferred to  2(b) in the same act of 1948.  See

ch. 645, 62 Stat. at 684.  In 1951, without explanation, Congress

modified "causes" by adding "willfully":

     2 Principals

    (b)  Whoever willfully causes an act to be

  done which if directly performed by him or

  another would be an offense against the United

  States, is punishable as a principal.



Act of Oct. 31, 1951, ch. 655,  17b, 65 Stat. 710, 717.  Thus,

since 1948 the word "causes" has not appeared in  2314, appearing

instead in  2(b), and since 1951 it has there been modified by

"willfully."  Section 2314 applies to transporters;  2(b) to one

who willfully causes one to act.  See, e.g., quotation from United

States v. Scandifia, post.

  This case was tried to the court on defendant's

stipulation to the factual allegations in the indictment,

defendant's claim being that they were legally insufficient. 

Summarizing this agreement, defendant purchased quantities of

commercial polyester film delivered to his Massachusetts place of

business intending (successfully) not to pay for it.  He sold four

shipments to a Connecticut buyer, Ultra-Vac, who was ignorant of

the fraud.  It, or its designated trucker, took delivery in

Massachusetts of the shipments, each worth over $5,000, to be taken

to Connecticut.  Defendant had nothing to do with the shipment.  He

knew that this was the program, but disclaimed statutory coverage.

  In finding defendant guilty the court stated that it

acted under  2314 and rejected  2(b) because it was not recited

in the indictment.  In spite of this it went on to say that the

issue was "whether the defendant, quote, willfully caused, unquote,

the transportation across state lines."  Continuing, it stated that

"'willfully caused' means that the defendant must have the state of

mind of knowing that his conduct is creating a likelihood -- not a

certainty, but I would say a strong likelihood -- that the goods

will be transported across state lines as a result of his conduct." 

Thus self-instructed as to willfully caused, the court found it

existed.

  While the court erred as to  2314 rather than taking

these words from  2(b), the error, word-wise, was harmless.  The

words applied automatically to  2314 because  2(b) is a general

definitional statute.  See United States v. Sabatino, 943 F.2d 94,

99-100 (1st Cir. 1991).  Our question, therefore, is whether the

court's interpretation of those words was correct.  We add, in

passing, that it was narrower than the government's, which is that

no knowledge is necessary.

  Because of wide national disagreement on this important

subject, we will start with circuits that support the government's

position.  We begin with the Eighth.  In United States v. Ludwig,

523 F.2d 705 (8th Cir. 1975), the district court had convicted

defendants under  2314 of causing two converted checks to be

transported in interstate commerce by presenting them for payment. 

The cashing bank and the drawee bank were in the same state and

defendants had no knowledge or notice that their clearing practice

involved interstate transportation of the checks.  See id. at 706. 

Defendants argued that the government's failure to prove reasonable

foreseeability should have resulted in their acquittal, but the

court concluded that such proof was not necessary.  See id. at 706-

707.  For this it relied in part on Pereira v. United States, 347

U.S. 1 (1954), but without noticing its clear language.  The

Pereira Court had obtained the word "cause" not from  2314 (first

paragraph), but from  2(b):

    [I]t is not necessary to show that petitioners

  actually mailed or transported anything

  themselves; it is sufficient if they caused it

  to be done.  18 U.S.C. (Supp. V)  2(b).



Id. at 8.  At the same time, while making no mention of  2(b)'s

word "willfully," it clearly based "caused" on defendant's

knowledge and intent:

    When Pereira delivered the check, drawn on an

  out-of-state bank, to the El Paso bank for

  collection, he "caused" it to be transported

  in interstate commerce.  It is common

  knowledge that such checks must be sent to the

  drawee bank for collection, and it follows

  that Pereira intended the El Paso bank to send

  this check across state lines.



Id. at 9.  This finding of knowledge and intent was, of course,

precisely inapplicable to Ludwig.

  On Ludwig's facts the District of Columbia Circuit

followed Ludwig's resolution.  See United States v. Scarborough,

813 F.2d 1244, 1245-46 (D.C. Cir. 1987).  The Tenth Circuit, on the

other hand, faced the same situation as that in Pereira, and cited

it to support its affirmance.  It went on to say, however, as the

court in Ludwig did, that actual knowledge of the interstate

transportation was not required.  See United States v. Newson, 531

F.2d 979, 981 (10th Cir. 1976).

  In United States v. Lennon, 751 F.2d 737 (5th Cir. 1985),

the Fifth Circuit, necessarily faced with  2(b), it having been

cited in the indictment, held that it could be disregarded as "mere

surplusage," permitting it to rely on the "[s]ection 2314 . . .

'causing' provision" that required no knowledge, noted in Ludwig. 

Id. at 741.  There was, of course, no such in the relevant first

paragraph.

  Recently, in United States v. Lack, 129 F.3d 403 (7th

Cir. 1997) the Seventh Circuit charged defendant under  2314 in

connection with the interstate clearing of stolen checks.  The

court cited Pereira, and on the facts was correct in its decision. 

But it also cited with approval Ludwig's denial that  2314

"requires that the defendant have knowledge of the interstate

transportation or that such transportation be reasonably

foreseeable to him."  Id. at 410.

  We have cited these cases to indicate the mistreatment of

this subject and not to influence our own decision.  Some thirty-

five years ago we took notice that a similar transportation statute

(stolen firearms, 15 U.S.C.  902(g)), except that willfulness was

not needed, did require knowledge, or at least reasonable grounds

to know.  See Nicolopoulos v. United States, 332 F.2d 247, 248 (1st

Cir. 1964).  For this we relied on Pereira v. United States without

noting, presumably since neither mentioned nor relevant,

willfulness.  See id.  What knowledge is required to make

willfulness?

  We have considered this question on occasion, using words

like "deliberately," United States v. Andrade, 135 F.3d 104, 110

(1st Cir. 1998), "awareness," United States v. Cowden, 545 F.2d

257, 263 (1st Cir. 1976), and "aware," United States v. Van Dusen,

431 F.2d 1278, 1281 (1st Cir. 1970).  At the same time, "willfully"

is a strong word, particularly when it has been added by special

amendment to limit the meaning of "causes."  See ante.  We note two

sister circuits which, unlike the others cited, at least require

the government to prove knowledge or reasonable expectation and 

suggest where mere knowledge or expectation may not be enough.

  In United States v. Scandifia, 390 F.2d 244 (2d Cir.

1968) vacated on other grounds sub nom Giordano v. United States,

394 U.S. 310 (1969), the defendant was convicted of willfully

causing interstate transportation of counterfeit securities, a

violation of the third paragraph of  2314, which also relies on

 2(b) for its "causing" alternative.  In affirming the conviction,

the court rejected any suggestion that ignorant causation-in-fact

was sufficient to support a conviction, and outlined its

requirement:

    In the absence of some evidence that Scandifia

  intended, knew, or could have reasonably

  foreseen that the innocent persons to whom he

  entrusted the bonds would take them across

  state lines, we question whether the jury

  would have been justified in concluding that

  he did more than provide others with the

  opportunity to do that which the law forbids. 

  And, to provide an opportunity would not seem

  ipso facto to brand one as the causer. 

  Moreover, the causer as a principal has been

  eliminated from 18 U.S.C.  2314, and since

  the 1951 amendment, 18 U.S.C.  2(b) has

  required that the defendant wilfully cause the

  forbidden act to be done.



Id. at 249 (citation omitted; first emphasis added).  Defendant had

an interest and was very close to the opportunity, so he was

properly convicted, but might there be a known opportunity too

remote to the defendant's interest to count against him?

  Suppose a jeweler is selling stolen diamond rings to bona

fide purchasers.  He might select buyers from away for safety's

sake.  But suppose he indifferently offered to all comers, without

inquiry or regard to their addresses.  Would he come within the

statute with respect to those customers who showed a "strong

likelihood" that they came from another state, if that transporting

was a mere happenstance?  Suppose the seller knew the buyer of a

stolen painting planned it for his local home, but also knew, or

should have known, that the buyer's trucker's route would detour

over the state line and back.  Willful?

  The opinion in United States v. Berlin, 472 F.2d 13 (9th

Cir. 1973) contains interesting thoughts.  That case involved

 2312, the Dyer Act, so-called, covering interstate transportation

of stolen automobiles.  The court remarked that sometimes personal

property was apt to cross state lines quite apart from any concern,

purpose, or interest of the seller, concluding that only what was

of the seller's interest or purpose in the particular operation

should count.

      Section 2(b) does, as appellants

  contend, have overtones of agency, and, in our

  judgment, the willful causation to which it

  refers must be purposeful rather than be based

  simply upon reasonable foreseeability.



Id. at 14.  The court, however, with which we readily agree, felt

this limitation would not help its defendants, as their operation

was manifestly designed to handle stolen cars for out-of-state

buyers.  See id. at 15.  Would it help this defendant?

  The word "willfully" was not mentioned in Pereira, let

alone defined, but if we were moved to find ourselves free to adopt

the Berlin limitation, or, more exactly, requirement, it would not

help defendant.  It is true that the district court's expressed

finding that defendant willfully caused the interstate

transportation contained no statement that it was intentional, or

served his purpose, but neither was there a relevant exception

taken.  Defendant saved his rights, we have accepted, in his

stipulation, "Defendant contests the legal conclusion that the

jurisdictional interstate commerce element is met."  This he

paraphrased in his brief as the issue:  "Was the evidence

sufficient?"  The answer to that question is clear even within the

Berlin rule.  The agreed facts warranted an inference that, in

picking an out-of-state buyer on four occasions, defendant, with

hot goods, affirmatively intended to distance them from himself. 

An acceptable inference is evidence of record.  That the court

failed to find it is not an issue raised in this appeal.

  Affirmed.