United States v. Charles Ronald McElroy

im- might well have been cross-examination clear that the if were particularly

proper, not intended

evidence solicited credibility as defendant’s

impeach the Rispo,

witness. See (3d Cir.

F.2d Null,

In United States court found reversi-

(4th Cir. questioned prosecutor error

ble when charges on whether

character witnesses reputation. defendant’s

affected public pend- discussion of

Recognizing that adversely repu- affect

ing accusations could

tation, found the court nevertheless de- relevant because the

cross-examination reputation what the “is."

fense had asked I also that counsel

Id. at 1180. observe objection ground on the

never voiced was confined to evidence character Therefore, place. took time sales impli- reputation time

insofar as the

cated, testimony was admissible. that the cross-examination of conclude witnesses and the defendant

the character and, further improper comment to the does not

prosecutor’s Accordingly, trial. I would

warrant a new

affirm judgment district court. America, Appellee,

UNITED STATES McELROY, Appellant.

Charles Ronald

No. 79-2516. Appeals, Court of

Third Circuit.

Argued March

Reargued Nov. 17, 1981.

Decided March

Thomas S. White Robert L. (argued), Defenders, Lackey, Asst. Federal Public Schumacher, George E. Federal Public De- fender, Pa., Pittsburgh, appellant. D. J. (argued), Brysh, Sandra Jordan Paul Thieman, Frederick W. Asst. U. Attys., S. Cindrich, Robert Atty., Pittsburgh, J. U. S. Pa., for appellee. SEITZ, Judge

Before Chief and ALDI- SERT, ADAMS, GIBBONS, ROSENN, HUNTER, GARTH, WEIS, HIGGINBOT- SLOVITER, Judges. HAM and Circuit OPINION OF THE COURT WEIS, Judge. Circuit Property The National Stolen Act prohibits in interstate of forged appeal, checks. In this argues prosecution the defendant to prove had that the checks were altered they were taken over a state line. signa We conclude that if an unauthorized placed any point ture is on a check at movement, during interstate either before crossed, after border is stat ute has been violated. We find sufficient evidence to on support convictions two not, charging counts such offenses. We do however, support find adequate evidentiary for a conviction alleging a violation Dyer acquittal Act and direct an count.

The defendant was indicted for trans- from porting Youngs- two checks town, Ohio, to western vio- (1976)(counts lation of 18 U.S.C. & III). addition, charged he transporting a stolen automobile Pennsylvania to Ohio in violation (count II). A U.S.C. counts, returned all three guilty verdicts on imposed and the court concurrent sentences. charged in- II of indictment the basis of the Count forming checks car Savings the Dollar drawn on the defendant were dictment Youngstown, to Ohio. There was Company from Don Allen & Trust from labor union car been stolen and had direct to show where evidence discovery of early premis- 1977. On city after it left the dealer’s was driven theft, closed. the account was Pittsburgh. es in appeared defendant In the October the testi- counts was to all three Common in Pitts- agency Don Chevrolet at the Allen that the defendant FBI mony agent an an auto- and ordered burgh, Pennsylvania, Ohio, Liverpool, living in East admitted in $6,706. for He said his home was mobile were delivered during time the checks the Ohio, and that he Heights, Warrensville dealers. to the auto and boat following with a day return the cred- would reappeared payment. union check in He THE FORGED CHECK COUNTS I. was that the car to be promised and said only issue The concedes that defense effect, that signed titled in forms to com- us is whether the interstate before Savings a on the Dollar and tendered check jur- federal criminal requirement merce already in the Youngstown Bank of drawn This issue isdiction has been satisfied. $6,909. car was delivered to amount The no statutory interpretation, purely one defendant, and The check he drove off. that a com- having been made contention union, of those and was one satisfy would fail to clause nexus merce signature was Don Allen forged. The jur- for federal prerequisites constitutional Company Youngstown called bank the isdiction. un- following morning and learned that the closed, attempt ion account had been so states, part, 18 U.S.C. pertinent § made negotiate was to the check. or in- “Whoever, fraudulent with unlawful applicable The evidence to count III tent, interstate transports in the indictment a revealed method forged similar securities any ... ... commerce operation. In December the defend- .. .., to been . knowing . the same Beaver, went Rini in ant to Boat Sales impris- [sjhall fined ... forged ... be purchas- about inquired 10 of the same ... or both.”1 Section oned ing a boat. a telephoned He week later ‘interstate “The term provides, part, title told the that was to a going buy dealer he title, commerce’, in this includes as used trailer, a get boat and but had to check .. and an- one . between State commerce telephoned again from his credit union. He other State....” evening day on the of the same and asked con contends to The wait, proprietor stating to that he was to vict, prosecution had show that at rest stop Turnpike. on the Ohio it crossed a state forged check The Boat defendant arrived at Rini Sales argues if line. in a pickup bearing plates truck Pennsylva was taken from Ohio check he said was owned a friend. He deliv- occurred nia, forgery even if the actual ered a already imprinted by check check state, complete violation the latter writing machine. was given The defendant character because the interstate stating certificate trailer was to persisted. transportation registered away in Ohio and drove accepted the The trial court the boat and trailer. This had check also “transportation position charged that been stolen from union the signa- here, Pennsyl- forged. telephoned ture the within the destination proprietor vania, Youngstown following morning bank the be considered and, it is a continuation if learning the account had been interstate commerce of state.” closed, began out made no to cash the check. movement that attempt provides U.S.C. “any . term “securities” includes .. check.” We an variety important note surprisingly There little factual distinction check applying case law between Owens and case. In the for- hold that the opinions transactions. Most mer was no there evidence to show that the is satis- requirement defendant, a year-old, seventeen trans- if, negotiates fied after the defendant orders, ported money in altered or unal- cheek, it travels form, tered Jersey New to Louisiana. See, process. g., bank collection e. Pereira Here, by contrast, there is testimony v. United support findings of journeys by (1954); Newson, L.Ed. 435 the defendant from Ohio “There is no purpose for the engaging in commer- transporta- requirement physical of actual transaction, during cial which had the tion defendant and it is sufficient that possession. the checks in his a defendant cause instrument to be 279 p. See infra. the transported by negotiation process.” 981; Nevertheless, 2(b) (1976).

Id. at 18 To the U.S.C. the Owens opinion makes § effect, Sciortino, same see United v. States clear that the court govern- believed the (2d 1979); 601 F.2d 683 Cir. United required ment was prove that the money Ackerman, (7th v. States F.2d 393 122 orders had been forged in New Jersey, “pri- 1968). As the Appeals Cir. Court of for the or to their transportation.” Id. Newson, Tenth Circuit pointed out in “The at 471. And other appeals courts of read- of essence the offense the fraudulent ing Owens this broadly have followed itself scheme and the interstate element is any without examination of its validity. only provide included to constitutional Sparrow, See United States v. 635 F.2d 794 for the jurisdic- basis exercise of federal (10th Cir., 1980)(in banc); United v. States tion.” 531 F.2d at 98. Hilyer, (8th 1976). 543 F.2d 41 Cir. See also An emerged alternative method of Lee, v. (4th 485 F.2d 41 Cir. of another line cases beginning with It this line of cases that Castle United urges defendant upon us here. 1961). There, Cir. proved forged money orders in history We begin by examining the and Pennsylvania and later cashed them in Tex- language of 2314. It derives from 3 of § § question as. No about appli- raised Property Act. the National Stolen Ch. of cability 2314 in setting, that factual § there is no In doubt that 48 Stat. 794 aspect commerce was satisfied. Sheridan, 67 91 (1946), emphasized L.Ed. 359 the Court By the metamorphosis curious sometimes of the Act established scheme federal- law, seen in decisional some courts have built designed apprehend Castle into a requiring cooperation doctrine that if state the cheek was not collected through punish criminals “whose offenses are interstate banking system, the prosecution law, complete but who utilize under state must prove that the securities were of the channels interstate commerce to before being transported over a state line. getaway make a successful and thus make A coincidence of fact in thus Castle became punitive processes detecting the state’s jurisdictional element prosecution. of For 384, 67 impotent.” Id. at S.Ct. at 335. The example, Owens, in United said the transportation also of Court held, F.2d 467 1972), the court forged checks is not be torn from its analysis jurisdictional phase without setting given a status distinct from statute, forgery that if the money “The transportations. leg- other forbidden orders occurred in Louisiana where there history purpose [(of islative shows that the them, attempt an to cash no offense Act)] bring operators was to these under had occurred even though § substantially the false securities into same orders money had been stolen New Jer- sey. power applied others reach federal the point origin. and mon- made to Understand- goods, securities

dealing Id. may, We inter- therefore, 67 S.Ct. at 337. courts have found ey.” ably, therefore, under other sec- to decisions look after both before and state movement construing the an aid in tions of the Act as line crossed. state been in interstate meaning transportation juris A illustration federal persuasive commerce. movement over attaching diction not state language 2314 does exam found in an opinion border before inter- that the checks must be concept of for ining analogous title begins. Transporta- See eign commerce. U.S.C. § a broader tion in commerce has (2d Ajlouny, United States v. meaning.2 denied, - U.S. -, cert. proscribed acts The fraudulent (1981), cargo origi peculiar pose statute do not threat Doha, nating in New for York and destined intrastate, interstate, ac as contrasted with area Qatar, was in a customs control seized prohibited tivity, and it is obvious Holding cargo Brooklyn of a pier. already subject of state activities were under 2314 even was in out pointed As the criminal statutes. Court beyond the bor though it moved had not Sheridan, purpose of the National ders of mat States —or Act is to federal Property provide Stolen stated, “Congress ter the state —the court ex had been previously assistance in what moving goods not aiming only was at modifi clusively Legislative state affairs. boundary but also across a technical line this cations in Act have not altered to course shipments wanted reach Patten, United v. See States conclusion. ” Id. at crossing such a ... . 967, (D.P.R.1972). 968 The in F.Supp. 345 juris of federal continuing presence The language terstate commerce was included crossing after a line was exam diction state purely jurisdictional purposes Tobin, v. 687 United States ined in 576 F.2d be to out this con carry should construed denied, cert. Cir.), 1051, 99 v. Lud 439 gressional intention. United States U.S. de 731, wig, 523 F.2d 705 cert. 1975), (1978). 58 711 There Cir. L.Ed.2d S.Ct. nied, 1076, 861, 423 96 S.Ct. 47 L.Ed.2d companion U.S. court a section construed v. Scarborough see (1976); Act, 86 18 U.S.C. Property National Stolen 1963, 563, 97 52 431 U.S. (1976). speaks of stolen 2315 That section § Bass, v. (1977); 582 of, as, are or which goods “moving 515, 404 L.Ed.2d 488 92 S.Ct. com which constitute language differs Although merce.” we find no reason from § person A travels state who from one meaning in the factual apply a different another an purpose purchasing for the In Tobin the court presented context here. moving article in is the destination state so the movement of stolen long held that commerce, and the character of can be within state items the destination entering such a not cease trip upon does of the movement considered continuation destination state. It continues until state, began prerequisite achieved— that out of purpose journey been indeed, met. jurisdiction until a has been was likely more return §2315 Code, Federal Criminal 2. Neither Geo.Wash.L.Rev. the courts nor the commentators (1979); The thoroughly significance Quigley, Federal Criminal have examined the Epitaph Plan: An For The Well- Code Revision title-wide definition Dead, Stem, 459; in 18 U.S.C. Buried id. Commerce 10. The courts have examined § Inter- particular Clause Federalization Of in relation to of- Revisited —The definition Crime, charged, (1973); fense and the commentators Ariz.L.Rev. 271 Congress Scope Note, been Federal Criminal Jurisdic- more concerned with how far Of Clause, might go, gone. it has rather than how far tion Under The Commerce 1972 L.Fo- See, g., Pauley, Analysis Aspects e. of Some An rum 805. Proposed of Jurisdiction under S. automobile, establishing ability thus his approval cited with Tobin Garber, (3d Pitts- 626 F.2d the short distance between travel United States denied, - U.S. -, 1980), cert. The check burgh and the Ohio border. we (1981), where 860, 66 L.Ed.2d 802 on an Ohio bank. presented was drawn arrival in a delay after day that a 28 there purchase, the case of the boat .held finding require destination state did telephone fact of a call additional pur to rest for goods had come he was on the in which he stated defendant under 18 U.S.C. prosecution of a poses Beaver, Pennsyl- enroute Turnpike Ohio language jurisdictional statute with § Moreover, he arrived in a vehicle vania. Thus, to that in almost identical bearing plates. license Act, the Property under the National Stolen be may prerequisite interstate commerce stolen in The checks had been Ohio. even before a state border satisfied no inference could From time there continue some crossed and Pennsylvania were in drawn that the cheeks after in the destination state. trips before the defendant made of that unsupported speculation therefore, trip by the de- In this the convictions be require to nature does not fendant from Ohio out in another pointed him in inter- set aside. As we put transact business would Blair, The nature of this move- prosecution, state commerce. the instant he crossed change (3d ment did not n.3 very At the the border into Pennsylvania. evidence proposition least, his completed until he it continued hypothesis every must exclude reasonable transactions in the destination business rejected in Unit guilt inconsistent with travel, the during time state. At some Allard, (3d Cir.), ed the checks in a denied, cert. 353 U.S. delivered them to forged condition and later adhere (1957). We continue to L.Ed.2d 761 It is immaterial the car and boat dealers. circumstantial position, and to that “[t]he forged were in Ohio signatures whether the evidence does not alter nature of the [our] any point in If at in the Pennsylvania. Hamilton, conclusion.” United States in a interstate movement the check was 1972); (3d 457 F.2d condition, was satisfied. forged the statute Blair, 518. supra at conclude, therefore, the district We each find that on was free to jury The was not errone- charge jury court’s to the trip made a occasion the defendant ous. with him carrying Pennsylvania, Ohio to however, that argues, The defendant either in Ohio that was check any establish the evidence is insufficient to event before the but in in altered or transportation of the checks Cf. United travel terminated. interstate form, interstate tran unaltered much less 1206, 1212-13 Presler, contention, we must passing sit. on or cir- 1976) (no direct (4th Cir. is substantial sustain the verdict if there cumstantial, defendant actu- indicated that the evi support evidence to it. Of course We there- journey). ally made light in most dence must be viewed on counts I judgment fore conclude that Glasser v. government. favorable to the must be affirmed. and III States, 60, 80, U.S. (1942). 86 L.Ed. 680 THEFT COUNT II. THE AUTO that the defendant testimony There was prohibits of title 18 Section lived in that he told the auto salesman commerce of a in interstate transportation from his get that he intended to a check alleged Here it is motor vehicle. union, stolen he wanted the car credit and that the automobile stole re- the defendant titled in When the defendant Ohio. a worthless Allen’s, gave Allen when he so in an from Don turned to Don did II, support to count and there- Again, the defendant sufficient payment.3 check govern- challenges sufficiency, fore, charge should not have been sub- transportation of in inter- fail- evidence jury. ment’s to the The mitted never the auto was a re- state commerce because object ure instruction bars instructions, seen Ohio. Fed.R. proper trial under acquittal, direct an Crim.P. so we must in inter- transportation concept see Burks v. United jurisdic- the same carries state commerce here as it does with re- significance tional reasons, it For similar spect judgments on counts I Accordingly, the necessary for the been would not have judgment and III will be affirmed. the automobile prove vacated, the matter count II will border. Ohio-Pennsylvania crossed the court for to the district will be remanded of Appeals for Like United States Court acquittal. judgment entry Circuit, Fifth does necessar- think the offense “[w]e ADAMS, Chief Judge, Circuit with whom actual, driving physical ily require part joins, concurring Judge SEITZ the accused. The across a state line dissenting part. and, transportation offense is interstate requisite assuming presence affirmance majority’s I concur with the driv- purpose, any knowledge guilty transporting McElroy’s conviction wholly the state of ing, whether within checks in interstate commerce. destination, or from and origin, state find, however, company I must to, step if in the done as substantial McEl- when it reverses majority with the furtherance of intended Act, Dyer roy’s conviction under is, think, within the act.” journey we U.S.C. § States, 229 F.2d Barfield v. United the offense of comprise Three elements motor Nevertheless, was instruct Dyer vehicles, the in the offense embodied ed, government, objection without (1) government must establish Act. The that to convict it had to be satisfied that stolen; (2) that the vehicle was “across, the line the car driven state it in interstate com- transported We from one to another.” find that knew, merce; that the defendant support there is insufficient evidence it, that the vehicle time he this instruc defendant’s conviction under v. Gres- stolen. been See United States tion. There is no evidence of record that 1978). ham, 106 taken to Ohio. automobile ever sufficiency of challenge is no to the There never it left Don The vehicle was seen after of the first and government’s proof Allen’s lot. purchased third elements. An automobile pur- is “stolen” for with a worthless check may argued jury It could be that Act, poses Dyer of the see United States v. intended to title found the defendant 407, 416, 77 Turley, 352 U.S. car in from the perhaps infer Moreover, (1957). possession L.Ed.2d he fact that he lived there that would take the jury vehicle be sufficient for Nevertheless, may it home him. we con- with knowledge, guilty the inference of draw clude this is insufficient establish F.2d see actually Barfield United the fact the car was driven McElroy Because completely into Ohio. the record Since that, when he drove possession of the automobile point, silent this we conclude under Chevrolet, Allen he evidence was in- off it from Don given, instruction denied, (3d Cir.), cert. Acquiring possession F.2d of a vehicle this fash- meaning ion renders it “stolen” within the Dyer Wilson, Act. United States of an may presumed, be the absence provides record a sufficient basis from to have had exculpatory explanation, that, which a jury might infer at the time was stolen. knowledge that the car McElroy departed from Pittsburgh dealer, automobile he contemplated driving issue is whether the only remaining the stolen vehicle into the State of Ohio. from the evidence jury might have inferred Moreover, argued while it that the McElroy injected in the record that design facts are consistent with a on the the stream of inter- automobile into part of McElroy to use the automobile ex- majority state commerce. The acknowl- clusively in Pennsylvania, perhaps to edges that the in order to prosecution, make there, dispose the record is completely offense, out this need component of the barren of evidence to show that show that the defendant was in control of McElroy’s intent. time it the vehicle at the crossed a state boundary, or even that the car actually out majority correctly points moved from one into another. As judge’s trial instructions may have led the long inaugurated as the defendant an in- that, jury convict, to believe in order to tended interstate journey, has violated they satisfy would have to themselves that Nonetheless, the Act. majority appar- the stolen vehicle actually crossed the bor- ently concludes that the evidence in the der between Pennsylvania and Ohio. Un- case at bar fails to demonstrate that McEl- majority’s interpretation der the own automobile, roy’s stolen in Act, Dyer probably instruction miscon- was ever bound for Ohio. strued advantage 2312 to the de- fendant. But while the fail- Although the issue not completely free ure to make timely objection might pre- doubt, govern- would hold that taking exception clude it from to the in- ment proffered adequate sup- evidence to Court, struction agree before this I do not port the jury’s verdict. When McElroy with the majority prosecutor’s si- obtained the car from Don Allen Chevrolet lence disposition should affect our of McEl- in Pittsburgh, he advised the salesman that roy’s claim to have been convicted on insuf- he lived in Ohio and that he intended to ficient light evidence. In the trial register the automobile in McElroy Ohio. judge’s charge, the verdict manifests the paid for the car with checks stolen from a jurors’ McElroy conclusion union office in Youngstown, Ohio. After fortiori, the stolen car into Ohio. A arrest, his McElroy admitted to an FBI verdict judgment, logically reflects the en- agent that, at the time of the alleged of- lines, tailed from the crossing of state fense, he resided in East Liverpool, Ohio. McElroy inaugurated journey. an interstate addition, the evidence at trial indicated Because proof proposition of this latter suf- that, Corvette, after obtaining the McElroy fices to transporta- establish the interstate returned to Ohio and some time later ven- Act, because, tion element of the Dyer tured back into Pennsylvania purchase in my opinion, properly could infer boat with another stolen check. McElroy evidence that embarked these Admittedly, items of evidence do venture, on an interstate I would not dis- not show conclusively McElroy drove jury’s turb the conclusion that vio- the stolen vehicle into Ohio. But a court lated § reviewing a jury regard verdict must the Accordingly, I dissent from Part II of the evidence in the light most favorable to the majority opinion. government, see Glasser v. United 60, 80, 86 L.Ed. GARTH, Judge, concurring Circuit (1942), accept and must as established dissenting. all reasonable inferences sup- tend to port jury’s determination, the see United I majority’s concur with the decision to Briddle, States v. 1337-38 McElroy’s vacate conviction and to enter a (8th Cir. I believe that the evidence judgment acquittal of on Count II. I dis- they the crossed the state line. The of at time majority’s affirmance

sent any point at majority III. here holds I and McElroy’s convictions on Counts “[i]f was the check in the interstate movement condition, was satis- a the statute forged in I. Maj. fied.” op. at 279. requirements of nec- The the clarification with in point agreement To I am full this under 18 conviction essary support I colleagues majority, who form the my overriding is concern U.S.C. § have to be agree that checks too the do reads: part, in case. relevant § this In they from when cross forged in condition Whoever, in- or fraudulent with unlawful it is view my one state another. In tent, in or transports checks were in which state the immaterial made, forged, al- any falsely commerce they ultimately are found forged, providing or tered, securities tax or counterfeited state differ- forged to be in a instruments to have been stamp, knowing the same they originated. ent the state where altered, made, forged, or counter- falsely (cid:127) to the Thus, than to this too adhere ... be fined not more extent feited shall ” than announced to- $10,000 “anti-Sparrow not more ten construction imprisoned However, adherence day by majority. years, both. end our in- interpretation to this cannot majority opinion analyzing The in its quiry By limiting analysis this in case. statute, only on the issue of wheth- focuses statute, e., forgery i. to the element forged er to be the checks involved had forged, in the checks were the state which (here one they crossed from ele- majority failed to address the Ohio) (here Pennsylvania). to another state requires proof it ment of which disagrees majority court transported was who the defendant en banc decision, the recent Tenth Circuit who to be checks or caused the checks Sparrow, 635 F.2d 794 transported in commerce —in this 1980) (en banc) reversing Pennsylvania. case from Ohio to Sparrow, States v. required Assuming1 majori- which held that the statute I have read the I am proof already forged respect, checks were ty’s opinion correctly majority’s majority’s analy- “assuming” 1. I am feet that I have found in the that under the analysis, gery solely charge, jury which on the for- concentrates sis. the district Under court’s statute, evidence of element of could have found that interstate commerce Pennsylva- requirement checks drawn in Ohio but found in satisfied if the were checks nia would (which be sufficient to sustain a conviction. undisputed), is drawn in Ohio found Thus, majority opinion, Ias read the way Pennsylvania (which undisput- their into “transporting” is deemed ed), element of the statute by McElroy Pennsylva- and were carried to be subsumed within and satisfied (which undisputed), though nia also even “forgery” acknowledge that element. Yet I McElroy transported existed that had addressing sufficiency Pennsylvania. checks from Ohio to dis- majority opinion discusses inferences that a charged point trict at one that: court brought could draw transportation within the destination state Pennsyl- (transported) the checks from Ohio to here, Pennsylvania, may be considered trans- Maj. op. vania. If that discussion portation in interstate if is a it require proof transport- is intended to of a began continuation of the movement that out element, ing forgery element well as then I as of state. majority disagreement have no with the as to charged: It then standard, only sufficiency its the evidence to the Now, but you if believe that the Government applied that standard. How- has shown that Defendant ever, my reading majority opinion leads they the checks while were in condi- me to it believe that has erred the standard tion within the State subscribes, apparent- it to which because has requirements of the law are satisfied if that construction, ly by its read out of 2314 the of interstate com- transports words, element . .. in inter- “[w]hoever merce. other the check had to and had to state ... commerce ”. ... originate at sometime in charge by given transported in have been sylvania in Penn- the district court sometime ambiguity case suffers in and de- order to effect interstate com- same analysis and the find no in obliged authority to dissent from its the cases dispensing it has with in prove result which reached. a need to a case such as this

one, (1) that: either the checks were caused II. to transported by McElroy be between Ohio McElroy and that with Pennsylvania, jurispru- As I understand the current the Pennsyl- checks travelled from to Ohio interpreting the dence of cases the vania. requirement interstate of that statute fall

into two groups. discrete In our of ne- present neither proof gotiation nor in in- proof these in which first of are cases the terstate Here present. commerce is component by interstate is satisfied the ne- negotiated through check has check been gotiation of a check drawn in one state and procedures. contrary, clearance cases, To the the presented another. In those in in I proofs upon Counts and III reveal that Newson, which United v. checks, receiving the the boat car deal- representative, is the ers did not sense deposit them. In that the mere is negotiation a check deemed to negotiated cheeks were never and thus nev- provide proof of be- er satisfied the interstate be- requirement negotiation, cause the defendant’s act of they cause in never became involved check a check procedure clearance which is inter- clearance procedures.2 state in has scope, triggered. been Thus in such cases has caused the Nor does the disclose McElroy record transported check to be in interstate com- actually or transported carried the checks merce, though even he himself has not from Pennsylvania.3 undisput- Ohio to It is physically transported the check from one ed that were an checks drawn on Ohio state to another. bank, undisputed and it McElroy possessed Pennsylvania, them in but The second group of cases are those record is brought devoid of as to who where the defendant actually transport- the checks Ohio Pennsylvania, from to cheek, ed the whether in a or un- McElroy’s pos- indeed how came they into condition, another, from one state to in Pennsylvania. session thus satisfying the requirement. That situation reflected in cases such as record, enough As I read the there is not Lewis, beyond evidence for have found 1971); Sparrow, supra. doubt, resolving reasonable all inferences ” Thus, even adopting “anti-Sparrow in- favor of the government, see Jackson terpretation which majority adopts, I Virginia, prove merce. So the Government must route which checks would have travelled transported Defendant they the checks involved in process entered the bank collection Counts 1 indictment Pennsylvania. The indictments read “cause to commerce between Ohio and Ohio, transported be . .. from ... ... Penn- prove place but need not in Ohio from sylvania. Moreover, ...” the indictments are which the checks started or from where the conjunctive drawn in the and thus would re- Defendant started. quire proof by McElroy App. 234a-236a transported transported caused be appears paragraph It to me that the last forged checks in interstate in- commerce. The charge quote closely I which above more pertinent part: dictments both read position resembles the which I have taken than CHARLES WIL- RONALD McELROY a/k/a position majority, advocated but JONES, LIAM did with unlawful fraudu- quoted when it is combined with the earlier intent, transport lent and cause to be trans- instruction, suggest charge I is not ported Youngs- in interstate commerce from charge clear. ap- Nowhere in the does there town, Ohio, pear Western unequivocal to the District Penn- McElroy an statement sylvania, falsely transport certain made and forced himself had to from checks Pennsylvania. security (emphasis added) ... forgotten It should recognize majority that as to this issue the having not indicted for caused the checks to be my differs view of the evidence.

284 States, 437 evidence. Sanabria McElroy transport- (1979), that

L.Ed.2d 560 Pennsylvania. 2170, 43 ed from Ohio to 98 57 L.Ed.2d the checks U.S. S.Ct. determined from this all that can be From an errone Thus, why understand I fail to relevant to the record, at the times McElroy by made the district evidentiary ruling ous case, never left Penn- in this charged events deprived be deemed to court should completely equivo- record is sylvania. The opportunity of its “fair government whom or where or from cal as to how it could assemble.” whatever offer checks, nothing obtained McElroy Burks, at at 347 U.S. from which a in the record appears quoted Louisiana, - of in Hudson v. State beyond infer a reasonable reasonably could at -, 972. While it is U.S. S.Ct. at McElroy brought himself doubt that have a fair government must true that Pennsylvania. checks from Ohio to my no ease to proof, to offer its opportunity McElroy telephone made a mere fact to hold that a so far as knowledge gone he was in stating call Ohio to a dealer of erroneous exclusion district court’s is insufficient way on the claimed as a may be government evidence that he was indeed in my view to infer Thus, in opportunity. of that fair denial time, when there particularly at that is sufficient evi considering whether there that he drove into the boat testimony conviction, in we are uphold dence to App. end street. at dealer’s lot from dead the evidence ad only to consider structed McElroy deliber- undisputed 77A. It is evi by mitted the trial court. Since the boat and car dealers ately misled view, in my dence in this case is insufficient Thus, it is not reasonable to respects. other acquittal of judgment I conclude that a concerning his in- infer that his statements must be entered. return to Ohio and his state- tentions to the convic- I vacate consequently would to his then whereabouts were ments as judgments of of entry tions and direct purpose. for the same made acquittal on all three counts. III. insufficient Having found the evidence HIGGINBOTHAM, Jr., Circuit LEON A. conviction on I McElroy’s

sustain Counts dissenting in Judge, concurring III, judgments vacate the I would part. judgments acquit conviction and enter majority’s I concur with so much is vacated due to tal. When a conviction of con- judgment vacates the decision which jeopardy double bars insufficient judgment entry and the viction States, a retrial. Burks v. United U.S. I dissent from Two. acquittal Count Hud (1978); 57 L.Ed.2d S.Ct. the convictions on majority’s affirmance of Louisiana, -, son State - U.S. Though Judge and Three. Counts One (1981). Even if 67 L.Ed.2d 30 thoughtful opinion, Weis has written erroneously excluded evi the district court Judge expressed believe the views had prove dence that would Sparrow, McKay checks in interstate indeed 1980) (in 796-797 F.2d 794 at commerce, prevent would jeopardy double statement of law banc), the correct express new trial. Burks states that “it should 2314: to U.S.C. reviewing make no difference re- of the statute plain meaning court, deter [T]he than the trial court rather to show that prosecution Id. quires be insufficient.” mined the evidence to condi- was in a or altered security If the at passage. tion at the time of its judgment district court had entered criminal statute rule is clear that a acquittal in this terms; strictly “must be to its even if limited appeal, would have right ambiguity must be construed, was tainted district court’s decision lenity.” in favor of resolved its erroneous exclusion 396, 411, Enmons, question this I believe v. On there is some States 410 U.S. (1973); 35 L.Ed.2d ambiguity. wording sug- of the section S.Ct. Campos-Serrano, v. United States also see held, is a gests, as other courts have that it 471, 474, check forged that must be v. United States (1971); L.Ed.2d 457 lines, across state not a check that is later Fisher, (10th 1143, 1145 Cir. forged. majority’s analysis, Under the on 1972). hand, transport- the other if one individual interpreted The three circuits which unforged ed an check across state lines and meaning. it given all section have person, forged it to a who handed second Sparrow; v. See street, the check and carried it across Cir., (8th 1976); Hilyer, person the second could be convicted of Owens, F.2d 467 forged of a check in inter- Lee, Cf. United States 1972). state commerce. This is a reasonable inter- Indeed, at oral F.2d 41 pretation, apparent. but not the most con- argument government in this majority’s analogy Section is which ceded that the section under not determinative. 2315 holds Section indi- the check be in a required was indicted “receiving,” “selling,” viduals liable for or state forged state when it crossed lines. as, “storing” forged security “moving or the ma- support interpretation, of its of, constitute, part which is or which inter- purpose of the jority relies on the broad state commerce.” Unlike the act of “trans- bring op- Act “to Property National Stolen “sale,” portation,” the or “receipt” “stor- into erators these false securities substan- occur, age” forgeries obviously cannot power the same reach of federal tially circumstances, except across unusual in stolen applied dealing goods, to others Thus, interpretation lines. broader securities, Majority Opinion and money.” special clause included in that section 277, quoting United States v. Sheridan, as, of, is —“moving or which or which 332, 337, 379, 389, 67 329 U.S. 91 L.Ed. logical. constitute” —is No such broad in- agree government I terpretation impelled by language possesses authority under the Constitu- prosecute McElroy tion and the Act to even Section 2314. Because criminal statutes though forged the check not have been must lenity,” be “resolved favor of when it crossed state lines. But this broad interpret prohibition would on trans- purpose by prosecution satisfied under forged in interstate com- porting check provisions other Act. Section 18 require merce under 2314 to move- Section criminally any 2314 also holds liable U.S.C. ment of the check across state lines. person who “with unlawful or fraudulent Thus, it, judge’s as I see the district court intent, in interstate or transports im- charge on Counts One and Three was commerce, tool, thing implement, proper. falsely making, used or fitted to be used in govern- I do Finally, not believe forging, altering, counterfeiting any se- ” prohibited retrying ment should be curity stamps... Transportation or tax . counts. From defendants on these two of the unsigned by McElroy check across record, my review of the there was substan- state lines with forging the intent of jury tial evidence for a to infer that standard, would have satisfied this and the check involved in Three had been Count intent of the Act. Unfortunately, McElroy brought Pennsyl- it was into forged before charged was not this paragraph. under Thus, vania. retrial of the defendants Thus, question we must address is not contravene the Double this count would not whether the federal could have One, on the As to Count Jeopardy Clause. prosecuted McElroy under the Act for his hand, insufficient probably other there was actions, could, which it but clearly whether law, evidence, as a matter of specific which McElroy section under activity. indicted reached that infer that the check had been commerce. The ab- it entered interstate however, of such is attribut-

sence objection made

able to an unmeritorious which, opinion, my

the defendant the court. Its deci-

improperly sustained that had been prof-

sion excluded evidence government

fered to establish the juris- in interstate commerce

dictional nexus. the exclusion of this Since

jurisdictional evidence on Count One was objec- solely

attributable defendant’s

tion, prosecu- not find that another would prohibited

tion on Count One Jeopardy

Double Clause.1

UNITED STATES STEEL CORPORA

TION, Company, Inland Steel Bethle Corporation, Employers,

hem Steel Peti

tioners,

NATIONAL RELATIONS LABOR

BOARD, Respondent, Engineers

District 2 Marine Beneficial As

sociation — Associated Maritime Offi

cers, AFL-CIO, Engi District Marine

neers Beneficial Associatio n —Associat Officers, AFL-CIO, Safety

ed Maritime Plan,

and Education United Steelwork America,

ers of Intervenors.

No. 80-1477. Appeals,

United States Court of

Third Circuit.

Argued Nov.

Decided March assemble,’ Supreme proof 1. The Court’s recent decisions in Hud bars offer whatever it could Louisiana, -, charge.” son v. State of - U.S. retrial on the same Hudson State (1981), Louisiana, - U.S. at -, 67 L.Ed.2d 30 and Burks v. 101 S.Ct. at States, quoting 437 U.S. Burks v. United 437 U.S. at (1978), preclude would not retrial of at 2150. merely opportunity defendant. These cases hold “that did not have a “fair to offer what trial,’ proof a reversal ‘due to a failure of ever it could assemble.” opportunity where the state received a ‘fair

Case Details

Case Name: United States v. Charles Ronald McElroy

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 17, 1981

Citation: 644 F.2d 274

Docket Number: 79-2516

Court Abbreviation: 3rd Cir.