The United States of America v. Max Benjamin Berger, Sheldon Polakoff, Morris Satz
338 F.2d 485
2d Cir.
1964
Check Treatment

*2 KAUFMAN, and Before WATERMAN Judges, DIMOCK, District and Circuit Judge.* Judge. WATERMAN, Circuit stealing of Defendants were convicted car, which from a railroad part shipment, in of an interstate were of con- of 18 violation U.S.C. § offense, spiring to commit this federal They violation 18 U.S.C. were § years imprisonment on sentenced count, the to run concur- each rently. sentences appeal All three defendants judgments of conviction under 659, claiming U.S.C. § an were not stole shipment. appeals Defendant Satz also judgment of from the conviction under 371, claiming U.S.C. there was § proof knowingly par- insufficient ticipated that he conspiracy. affirm We appeal on the first branch and do not reach the second. undisputed relating facts of 18 fol-

violation U.S.C. are as May 10, lows: On 1961 the New York gondola empty Central Railroad plant car beside the of the Anaconda Company Buffalo, American Brass New York. Anaconda filled the car with slag scrap brass brass refinery copper to a where the contained in the brass would be reclaimed. The Company prepared lading a bill of which specified delivery New York Cen- tral Island Railroad at a sid- Long Island, York. These according transactions occurred con- tinuing arrangement between Anaconda and the New York Central. Atty., Curtin, T. S. Western John U. May 11, yard On conductor Crimi, (Charles F. York

Dist. of New picked up York the New Central ap- Atty., counsel), for Asst. U. S. car, and, pursuant private loaded to a pellee. agreement with at two of the least de- Y., Dillon, Lackawanna, A. N. John fendants, the car from its nor- diverted Berger. nearby premises mal Company. Klocke, Skillen Iron and Condon, Jr., Condon, Metal There John W. 66,640 pounds Haley, the defendants O’Donnell, stole Ange F. Lambert &

[*] Sitting by designation. meaning statute, car within car. then from the waste brass weighing shipment begins, they do to a but continued station, give guidance by analogy.1 the ear not even contents of where the *3 pounds. addition, weigh 116,060 as one of our the decisions in to were found points out, 140,000 capacity court from the car was cases other areas rated The of the law as pounds. such taxation are likewise guide interpretation an unreliable to the weighing Shortly or after the before Fox, of this statute. United States v. ear, waybill the was made of the (2 1942); accord, 126 F.2d 237 Cir. freight agent indicat- York Central New Yohn, 232, United v. States 275 F. 233-34 ing routed would be (L. Hand, (S.D.N.Y.1921) J.), aff’d, 280 Jersey. through Weehawken, New (2 1922); F. 511 Moynihan, Cir. United v. States proceeded its destination car to 529, (3 1919). 258 F. 532 Cir. only prescribed the This was the route. routing York used the New Central approaching In the defendants’ Long shipments to from Buffalo the contentions, we must remember that we Island Railroad on Island. The dealing statute, are with a criminal Central, however, on New York had file strictly that criminal statutes are to be Commis- Interstate Commerce the construed, States, Yates v. United 354 providing for sion two other tariffs 310, 298, 1064, U.S. 77 S.Ct. 1 L.Ed.2d wholly within York State routes (1957), 1356 but we also must be mindful points. between two these Congress pro has here undertaken to promote tect and the flow in contend that the The defendants commerce, terstate and that this under not of an interstate stole were taking They hampered is to not technical at the the theft. time legal conceptions. argument grounds. Cf. North American their base three SEC, 686, 705, First, yard Co. v. 327 U.S. 66 as the who took S.Ct. conductor the 785, (1946). 90 premises L.Ed. shipper’s 945 car from the intend- throughout prop- ed it from its to divert agree We do not that the inter purpose plundering er route the journey delayed was until after the begun contents, its had its the ear not place theft took because the intent of the journey took when the theft yard conductor was to divert car the place. Second, car would as the have proper from its until course it could be overweight consequently been would plundered. person That was also em shipper if have to the been returned the ployee ship carrier to whom the the lightened load, had not thieves the per meant to deliver car and the was act journey car not on an interstate yard under color of receiving the his officeas a Third, when theft occurred. as the the conductor in ear. the These through not state was de- another enough beginning facts are mark the upon theft, cided until the after the car of the interstate from mo the begun had not its interstate premises ment the car the the place. when theft took shipper. knowledge, support To our this There is first some conclu- present case under 18 sion Fox, supra. U.S.C. 659 we reach § here United v. States case, also, per- these issues. are a number of oth There which, concerning point er cases son who received (8 1938), Sherman, denied, v. 171 F.2d 619 310 United States Cir. cert. 303 U.S. 931, (2 1948), denied, 763, (1938); Cir. cert. 337 58 S.Ct. 82 1118 U.S. L.Ed. Sharp (1949); States, (5 69 L.Ed.2d 1738 v. United 280 F. 86 S.Ct. 93 Fox, (2 1922), denied, States v. 126 237 Cir. U.S. United F.2d cert. 260 43 1942); Gollin, Lowery (1922); Cir. 166 S.Ct. L.Ed. United States 485 denied, (3 1948), States, (7 F.2d 123 Cir. cert. United 271 F. 946 Cir. 1921). 333 U.S. 68 S.Ct. L.Ed. (1948); States, Wolk v. F.2d United par- years imprisonment shipper in carrier later behalf under these judgments. ticipated judgment court did theft. Satz’s convic possibility pro bother discuss tion under long 18 U.S.C. did not delayed might have this fact this sentence. it is un Therefore journey. necessary peruse exceeding of the interstate for us start ly lengthy trial record determine agree Likewise, do proof whether there was sufficient journey began after the interstate knowingly participated Satz spiracy. Any in the con place took for the reason that theft regard would, error in this overweight prior theft car was worse, for better or as harm be classified *4 and would have been returned the States, less. Lawn v. United 355 U.S. jurisdiction shipper. of The criminal 339, 359, 311, 78 2 L.Ed.2d S.Ct. 321 shipment a inter States the United over (1958); Hirabayashi States, United ought conception not in its be state 85, 1375, 320 U.S. 63 S.Ct. 87 L.Ed. destroyed simply an unforeseen because (1943); Cardillo, United States v. stop shipment happenstance the could 1963) ; (2 316 F.2d 614 Cir. United crosses line. before it a state Cordo, (2 States v. 186 F.2d Finally, agree that not the we do 1951), denied, cert. Cir. 340 U.S. journey was start the interstate de (1951). S.Ct. L.Ed. 686 layed until after because not the theft Affirmed. designate did until then carrier the ship particular route for this interstate DIMOCK, Judge (dissenting). enough shipper is that de ment. It the goods they were stolen before had carriage, goods to for livered the carrier they in left the state which were deliver- route, having specified not an intrastate toed the carrier. had Since subsequently and that chose the carrier crossed a state line at the time the in the reasonable interstate only theft the basis for a determination judgment, pur of its exercise commercial shipment was an interstate one by authority in it the suant vested would to be have intention. someone’s shipper which would to choose the route conveniently goods get any to their had most the No one that intention the less would should destination. Whether travel interstate the beginning mark of the in suffice to the time the theft. That intention arose when, theft, time the car terstate from the after the the carrier issued shipper’s waybill premises do not the we an interstate and thus the chose Up now decide. interstate route. only to that time the shipper. intention was that of the true, is the defendants It as expressed by shipper This was the when spoke out, point Fox that United States prepared lading giving it destination, the bill of the journey, intended be of “an interstate Siding, Is- “Nichols outset,” 126 F.2d such the land,” routing, and the “N.Y.C.-L.I. RR prescribed that But feel intent the proved Delvy.” had If the Government only an intent the this rule need lading the theft and bill to their ultimate destination. travel would have had to have been dis- case from the out There need be an intent just shipment, as if it had missed. travel an interstate set originally rolling two been one between is distinction un Of course this route. necessary points in thereafter the same state but ordinary case, such in as again and back diverted Fox, destination in which ultimate track, of an in the because obstruction shipment in a differ interstate intrastate for was state. ent Thus, for interstate the remainder. fact, shipment judgments plain was in- in here We conclude waybill a issued and until was 659should trastate under U.S.C. conviction interstate thereafter. were sentenced be sustained. Defendants My indulge brought applica- brethren the fiction that The facts out in the post-theft completely tion decision the carrier demonstrate so I what regard shipment route the made the as interstate the unsoundness of the affirm- ab ance initio. In the that I am constrained to for re- vote past, hope fictions been have useful ameli- consideration in the orating injustices my persuad- law. I un- course of am it brethren will be willing, however, ed. vote the use prison novel fiction to send man to appears one of defendants It years. I would reverse dismiss was B. before the arrested F. I. the indictment. decision made to route the thereupon with the It rested interstate. Rehearing. On Petitions for had decide or not he carrier to whether Dillon, Lackawanna, New guilt John A. His a federal crime. committed Berger. York, depended upon whether carrier would favor of an rather exercise in York, Haley, Buffalo, F. Lambert of- than an intrastate route the choice *5 Satz. fered its tariffs. Ange O’Donnell, Condon, Kloeke, & My point is not that the arrest was Buffalo, York, appellant Pola- New My point facts of unlawful. is that the koff. one of case of defendants afford perfect giv- a illustration of the error PER CURIAM: ing retroactive effect to a decision rehearing by petitions for Defendants’ route a in interstate rather panel are denied. than The fact intrastate commerce. that position F. B. was in a influence I. colleague’s of our view dissent places emphasis this decision further disposition majority from this we of the this case as illustration of error. required are that we would Putting ease, presented aside the open wish to leave doors so that federal here, shipper of a who knows the cus- agents, by suggesting post- a course of tom of carrier to his interstate and route crime conduct after criminal’s ac might thereby who be considered to in- tivity, could a create federal crime shipment, tend an I satis- am activity be that would otherwise shipper fied that a who names intra- language opin a state crime. The of our thereby stamps state destination as in- this; permit specify ion does not we trastate so much of the as takes interstate route be chosen place actually before his carrier makes the carrier “in the reasonable exercise an election to route interstate. While judgment.” And, its commercial more my it is belief thus that so much of the over, possibility is no here there intrastate, that conclusion is tampered chosen route could have been unnecessary. It suffices the most the Federal Bureau of Investi said that can be is that the character gation, by anyone else, or uncon journey was undecided the time testimony tradicted was that the carrier of the theft. The burden Government’s always cars routed its from Buffalo was not to show that its character was way Weehawken, Island undecided but show that it inter- Jersey. though state. Even it be established DIMOCK, Judge (dissent- choosing had a the carrier custom of ing) : published a interstate tariff route instead published Defendants have moved for a rehear- intrastate tariff appeal of their from conviction if there be a rule of law that shipper designate theft commerce and does not one of who rehearing published held en banc. tariff routes vests authority published carrier to choose the carrier, for the

route most convenient fact that at the time remains or intended

theft no mortal knew I would be interstate. ought employ- think that leave the predestination

ment of the doctrine of

to the ecclesiastical courts. America,

UNITED STATES of Plaintiff-Appellee, Domenick D’AGOSTINO

Domenico a/k/a Dagostino, D’Agostino, Domenick a/k/a *6 Niagara Falls, York, Defendant- Appellant.

No. Docket 28794. Appeals

United States Court Circuit. Second

Argued Sept. 23, 1964.

Decided Nov.