United States v. Charles Ronald McElroy

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.

*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.”

*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 into a doctrine requiring that if the cheek was not collected through the interstate banking system, the prosecution must prove that the securities were forged before being transported over a state line. A coincidence of fact in Castle thus became a jurisdictional element of prosecution. For example, in United States v. Owens, 460 F.2d 467 (5th Cir. 1972), the court held, without analysis of the jurisdictional phase of the statute, that if the forgery of money orders occurred in Louisiana where there was an attempt to cash them, no offense under § 2314 had occurred even though the money orders had been stolen in New Jersey.

We note an important factual distinction between Owens and this case. In the former there was no evidence to show that the defendant, a seventeen year-old, had transported the money orders, in altered or unaltered form, from New Jersey to Louisiana. Here, by contrast, there is testimony to support findings of interstate journeys by the defendant from Ohio to Pennsylvania for the purpose of engaging in a commercial transaction, during which he had the checks in his possession. See p. 279 infra.

Nevertheless, the Owens opinion makes clear that the court believed the government was required to prove that the money orders had been forged in New Jersey, “pri- or to their interstate transportation.” Id. at 471. And other courts of appeals reading Owens this broadly have followed it without any examination of its validity. See United States v. Sparrow, 635 F.2d 794 (10th Cir., 1980) (in banc); United States v. Hilyer, 543 F.2d 41 (8th Cir. 1976). See also United States v. Lee, 485 F.2d 41 (4th Cir. 1973). It is this line of cases that the defendant urges upon us here.

We begin by examining the history and language of § 2314. It derives from § 3 of the National Stolen Property Act. Ch. 333, 48 Stat. 794 (1934). In United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946), the Court emphasized that the Act established a scheme of federal-state cooperation designed to apprehend and punish criminals “whose offenses are complete under state law, but who utilize the channels of interstate commerce to make a successful getaway and thus make the state’s detecting and punitive processes impotent.” Id. at 384, 67 S.Ct. at 335. The Court also said that the transportation of forged checks is not to be torn from its setting and given a status distinct from other forbidden transportations. “The legislative history shows that the purpose [(of the Act)] was to bring operators in these false securities into substantially the same reach of federal power as applied to others *278dealing in stolen goods, securities and money.” Id. at 389, 67 S.Ct. at 337. We may, therefore, look to decisions under other sections of the Act as an aid in construing the meaning of transportation in interstate commerce.

The language of § 2314 does not state that the checks must be forged before interstate transportation begins. Transportation in interstate commerce has a broader meaning.2

The fraudulent acts proscribed by the statute do not pose any threat peculiar to interstate, as contrasted with intrastate, activity, and it is obvious that the prohibited activities were already the subject of state criminal statutes. As the Court pointed out in Sheridan, the purpose of the National Stolen Property Act is to provide federal assistance in what previously had been exclusively state affairs. Legislative modifications in the Act have not altered this conclusion. See United States v. Patten, 345 F.Supp. 967, 968 (D.P.R.1972). The interstate commerce language was included purely for jurisdictional purposes and should be construed to carry out this congressional intention. United States v. Ludwig, 523 F.2d 705 (8th Cir. 1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86 (1976); see Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

A person who travels from one state to another for the purpose of purchasing an article in the destination state is moving in interstate commerce, and the character of such a trip does not cease upon entering the destination state. It continues until the purpose of the journey has been achieved— indeed, more likely until a return has been made to the point of origin. Understandably, therefore, the courts have found interstate movement both before and after a state line has been crossed.

A persuasive illustration of federal jurisdiction attaching before movement over a border may be found in an opinion examining the analogous title 18 concept of foreign commerce. See 18 U.S.C. § 10. In United States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981), cargo originating in New York and destined for Doha, Qatar, was seized in a customs control area of a Brooklyn pier. Holding that the cargo was in foreign commerce under § 2314 even though it had not moved beyond the borders of the United States — or for that matter the state — the court stated, “Congress was not aiming only at stolen goods moving across a technical boundary line but also wanted to reach shipments in the course of such a crossing ... . ” Id. at 837.

The continuing presence of federal jurisdiction after a state line crossing was examined in United States v. Tobin, 576 F.2d 687 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978). There the court construed a companion section of the National Stolen Property Act, 18 U.S.C. § 2315 (1976). That section speaks of stolen goods “moving as, or which are a part of, or which constitute interstate or foreign commerce.” Although this language differs from that in § 2314, we find no reason to apply a different meaning in the factual context presented here. In Tobin the court held that so long as the movement of stolen items within the destination state can be considered a continuation of the movement that began out of state, the prerequisite of §2315 jurisdiction was met.

*279Tobin was cited with approval in United States v. Garber, 626 F.2d 1144 (3d Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 860, 66 L.Ed.2d 802 (1981), where we .held that a 28 day delay after arrival in a destination state did not require a finding that goods had come to rest for the purposes of a prosecution under 18 U.S.C. § 659, a statute with jurisdictional language almost identical to that in § 2315. Thus, under the National Stolen Property Act, the interstate commerce prerequisite may be satisfied even before a state border is crossed and may continue some time thereafter in the destination state.

In this case, therefore, a trip by the defendant from Ohio to Pennsylvania to transact business would put him in interstate commerce. The nature of this movement did not change the instant he crossed the border into Pennsylvania. At the very least, it continued until he completed his business transactions in the destination state. At some time during this travel, the defendant transported the checks in a forged condition and later delivered them to the car and boat dealers. It is immaterial whether the signatures were forged in Ohio or in Pennsylvania. If at any point in the interstate movement the check was in a forged condition, the statute was satisfied. We conclude, therefore, that the district court’s charge to the jury was not erroneous.

The defendant argues, however, that the evidence is insufficient to establish any transportation of the checks in altered or unaltered form, much less interstate transit. In passing on this contention, we must sustain the verdict if there is substantial evidence to support it. Of course the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

There was testimony that the defendant lived in Ohio, that he told the auto salesman that he intended to get a check from his credit union, and that he wanted the car titled in Ohio. When the defendant returned to Don Allen’s, he did so in an automobile, thus establishing his ability to travel the short distance between Pittsburgh and the Ohio border. The check he presented was drawn on an Ohio bank. In the case of the boat purchase, there is the additional fact of a telephone call from the defendant in which he stated he was on the Ohio Turnpike enroute to Beaver, Pennsylvania. Moreover, he arrived in a vehicle bearing Ohio license plates.

The checks had been stolen in Ohio. From the evidence, no inference could be drawn that the cheeks were in Pennsylvania before the defendant made the trips from Ohio, and unsupported speculation of that nature does not require the convictions be set aside. As we pointed out in another § 2314 prosecution, United States v. Blair, 456 F.2d 514, 517 n.3 (3d Cir. 1972), the proposition that the government’s evidence must exclude every reasonable hypothesis inconsistent with guilt was rejected in United States v. Allard, 240 F.2d 840 (3d Cir.), cert. denied, 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957). We continue to adhere to that position, and “[t]he circumstantial nature of the evidence does not alter [our] conclusion.” United States v. Hamilton, 457 F.2d 95, 98 (3d Cir. 1972); United States v. Blair, supra at 518.

The jury was free to find that on each occasion the defendant made a trip from Ohio to Pennsylvania, carrying with him a check that was forged either in Ohio or Pennsylvania, but in any event before the interstate travel terminated. Cf. United States v. Presler, 610 F.2d 1206, 1212-13 (4th Cir. 1976) (no evidence, direct or circumstantial, indicated that defendant actually made interstate journey). We therefore conclude that the judgment on counts I and III must be affirmed.

II. THE AUTO THEFT COUNT

Section 2312 of title 18 prohibits the transportation in interstate commerce of a stolen motor vehicle. Here it is alleged that the defendant stole the automobile from Don Allen when he gave a worthless *280check in payment.3 Again, the defendant challenges the sufficiency, of the government’s evidence of transportation in interstate commerce because the auto was never seen in Ohio.

The concept of transportation in interstate commerce carries the same jurisdictional significance here as it does with respect to § 2814. For similar reasons, it would not have been necessary for the government to prove that the automobile crossed the Ohio-Pennsylvania border. Like the United States Court of Appeals for the Fifth Circuit,

“[w]e think the offense does not necessarily require the actual, physical driving across a state line by the accused. The offense is interstate transportation and, assuming the presence of the requisite knowledge and guilty purpose, any driving, whether wholly within the state of origin, state of destination, or from and to, if done as a substantial step in the furtherance of the intended interstate journey is, we think, within the act.”

Barfield v. United States, 229 F.2d 936, 939 (5th Cir. 1956).

Nevertheless, the jury was instructed, without objection from the government, that to convict it had to be satisfied that the car was driven “across, the state line from one state to another.” We find that there is insufficient evidence to support the defendant’s conviction under this instruction. There is no evidence of record that the automobile was ever taken to Ohio. The vehicle was never seen after it left Don Allen’s lot.

It may be argued that the jury could have found the defendant intended to title the car in Ohio, and perhaps infer from the fact that he lived there that he would take it home with him. Nevertheless, we conclude that this is insufficient to establish the fact that the car was actually driven into Ohio. Since the record is completely silent on this point, we conclude that, under the instruction given, the evidence was insufficient to support count II, and therefore, that charge should not have been submitted to the jury. The government’s failure to object to this instruction bars a retrial under proper instructions, Fed.R. Crim.P. 30, so we must direct an acquittal, see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Accordingly, the judgments on counts I and III will be affirmed. The judgment on count II will be vacated, and the matter will be remanded to the district court for the entry of judgment of acquittal.

. 18 U.S.C. § 2311 (1976) provides that the term “securities” includes “any .. . check.”

. Neither the courts nor the commentators have thoroughly examined the significance of the title-wide definition of interstate commerce in 18 U.S.C. § 10. The courts have examined the definition in relation to the particular offense charged, and the commentators have been more concerned with how far Congress might go, rather than with how far it has gone. See, e. g., Pauley, An Analysis of Some Aspects of Jurisdiction under S. 1437, the Proposed Federal Criminal Code, 47 Geo.Wash.L.Rev. 475 (1979); Quigley, The Federal Criminal Code Revision Plan: An Epitaph For The Well-Buried Dead, id. at 459; Stem, The Commerce Clause Revisited — The Federalization Of Interstate Crime, 15 Ariz.L.Rev. 271 (1973); and Note, The Scope Of Federal Criminal Jurisdiction Under The Commerce Clause, 1972 L.Forum 805.

. Acquiring possession of a vehicle in this fashion renders it “stolen” within the meaning of the Dyer Act. United States v. Wilson, 436 F.2d 122, 124 (3d Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971).