United States v. Robert Dahle Sparrow

McWILLIAMS, Before BARRETT McKAY, Judges. 7, 1976, September Sparrow On BARRETT, Judge. applied Oregon duplicate for a certificate of title (Sparrow) appeals Sparrow Robert Dahle Thereafter, Oregon and transfer. an title jury of two counts of inter his conviction Sparrow’s was issued in name and sent to a falsely state of made or Bank, as showing Bank lienholder. forged violation of 18 security in U.S.C.A. submitting of a false 2314 and one count 9, 1976, Smith, September On Gerald statement in violation of 18 to a bank U.S. Bank, manager Sparrow of called to chеck dispositive 1014. The facts are not C.A. § Oregon on the Sparrow status of the title. dispute. related the title to Smith that certificate had been but that applied for the car had 26, 1976, Sparrow May contacted the

On reported been stolen theft and the Utah, of the Sandy, branch Walker Bank insurance company. Thereafter (Bank) Smith to Company and Trust secure fi- company called the insurance to nancing of a used confirm purchase for the 28, May Sparrow reported. Cadillac. On re- the loss had been Subse- Bank quently ceived a loan from in amount of title was received $8,700 purchase effecting to the car. In the Bank. loan, an Bank recorded its lien officer of on April grand On jury handed original Oregon the back of the certificate charging Sparrow down an indictment as of title for the which had vehicle been en- follows: Sparrow purchaser.

dorsed over to as its Sparrow Bank then allowed to take the title that he

certificate in order could refile it in I COUNT his own name in Idaho. day On or about between the 28th July Sparrow applied On for an day May, of and the day 12th doing, Idaho title for the car. In so he July, ROBERT DAHLE SPARROW original Oregon submitted the certificate of transport did car, title for the endorsed over to him as Utah, Sandy, from within the Central Bank, however, purchaser. longer Utah, Boise, Division of the District to recorded on the of the title back certificate Idaho, made, forged a falsely and altered was, time, as a Sparrow lienholder. at that security, is, title to a 1976 Cadillac listed as both the owner and lienholder. vehicle, Coupe knowing DeVille the same

Although listing made, as both owner falsely to have questioned, and lienholder was altered; Idaho all in violation of Section issued certificate was to him on or Title United Code. July July about On Sparrow traded the Cadillac for a new II COUNT Chevrolet Monza at Streater Chevrolet Sparrow warranted, Lake City. Salt by a day September, On or 8th about the sale, bill of that the Cadillac was free and 1976, ROBERT DAHLE SPARROW did any clear party part third interests. As transport to or cause be deal, Sparrow $2,846.00 received a Salem, Oregon, interstate commerce from check for the difference in value of the two Utah, Sandy, within the Central Divi- cars. Utah, sion of the a falsely District made, forged is, security, and altered On August although he had al- Coupe a title to a 1976 Cadillac DeVille ready it, Sparrow traded notified his insur- vehicle, knowing the same to have been ance company that Cadillac was stolen altered; on August A claim all in was filed allеged for the loss violation of Title police and the Section were also notified. States Code. Owens, States v. III

COUNT 1972) his conten- supportive day September, about the 8th On or the Court supra, observed: tion. Utah, Divi- 1976, Sandy, in the Central it is unlaw Under U.S.C.A. ROBERT District sion any person transport “in inter ful for knowingly did make DAHLE SPARROW falsely foreign any or commerce state security materially in a false statement a altered, made, or forged, counterfeited previ- on a loan as collateral submitted stamps, knowing or the securitiеs tax Bank and the Walker ously obtained from made, falsely forged, ” to have same been Branch, a Company, Sandy, Utah Trust counterfeited; altered, or . . It is . then deposits of were the which bank that the of prove obvious commission Deposit the Insurance Federal insured portion offense this of section an purpose of influenc- Corporation, for the the the Government must show that its regarding action bank ing the of said in its instrument traveled interstate Coupe 1976 Cadillac security interest in a forged or altered condition. The difficul vehicle, that ROBERT in DeVille detecting ty proving of and the locale of repre- SPARROW stated and DAHLE security of forgery the alteration or the regis- had that the vehicle sented engendered presumption has a in aid stolen in in the and tered State Judge Story As in proof. early as Idaho, when in truth and in the State pre a there a jury structed that exists fact, as ‍​‌​​​​‌‌​‌‌​​​​‌‌​‌​‌‌​‌‌​​‌‌‌‌​‌‌​​​‌​​​‌‌​​‌​‌‍ROBERT DAHLE SPARROW sumption forged that instrument knew, there the 1976 Cad- and well then in where it was first found its altered the registered in vehicle had been illac оr state uttered. States v. Brit in the Idaho and sold State State ton, C.C.D.Mass.1822, Fed.Cas. Utah; all in Section violation (No. 14,650). Applying II, this rule to Code. Vol. Title [R. case, presumption the instant a arises pp. 1-2.] money that the five orders which the (1) that: appeal Sparrow contends On to utter false attempted defendant were that the certificate is no evidence there made and in Louisiana. Of in I was altered before Count title described course, correctly as the Government interstate; (2) the certifi- bеing notes, presumption this does not obtain a in Count II was not described cate reasonably indicate when circumstances forgery made document within out that alteration or occurred 2314; (3) meaning of he was denied jurisdiction side the where instrument counsel; (4) the effective assistance of first its state or found in support does not a verdict of evidence See, g., e. Castle v. United uttered. guilty to Count III. 5 Cir. 287 F.2d 657. In the instant case the Government advances I. allegedly several circumstances which as government that Sparrow contends suage probative pre force of this presented no evidence that certificate of affirmatively beyond show sumption I title described Count was altered before money a reasonable doubt five being transported Sparrow interstate. ar- journey did not make an interstate orders gues that under 2314 a violation occurs pristine state. 460 F.2d at in their transports party when in interstate brief, foreign “any falsely reply Sparrow further con- In his forged, altered or counterfeited securities” circumstance relied on tends that sole pre- and that Government failed to establish to overcome the by the Government certificate was al- the certificate of title referred to in that the title sumption e., Idaho, prior being I was trans- than i. his altered rather tered Utah commerce, e., thereof, ported in interstate i. is without possession from continued Boise, here, a resi- Sandy, merit, Utah Idaho. as he maintained cites when 1975), cert. in Idaho and insured the car with an dence agent. (1976) insurance the court Idaho wherein observed: adopt supra. We decline to authority The case indicates thereto, hold, contrary that a § We enacting the Na- Congress intent of proof may be obtained without conviction provide Property tional Act was to Stolen was altered to move commerce, when, here, whereby authority could means ment possession punish depriva- thereof is not chal unlawful continued be invoked to import lenged. Sparrow misapprehends which, by virtue of their property tions of The “essence of the offense is character, escape might and the inter the fraudulent scheme itself of the states. As prosecutorial efforts solely to afford state element” is included in United Supreme stated Court jurisdiction. principle This was Sheridan, 67 v. 329 U.S. States by this in United enunciated in detail Court (1946), in 91 L.Ed. 359 S.Ct. Newson, v. States statutory predecessor reference to the 1976): 2314: charge under sec to the substantive As preventing Congress had in mind have beеn consistent tion the courts completion further frauds or the cashing a check or holding the in partially executed. But it also frauds state, on a in one drawn money order contemplated coming to the aid of the state, competent evi bank in another detecting punishing states in and crimi- would of ne the instrument dence complete are nals whose offenses under in interstate com cessity have to travel law, state but who utilize the channels requirement of actual merce. There is оf interstate commerce to make a suc- by a defendant transportation physical get away cessful and thus make the cause it is sufficient that defendant and detecting punitive processes state’s and transported by the instrument to be the impotent. process. Pereira v. United negotiation Lyda v. subsequent In the cases of 74 98 L.Ed. S.Ct. 1960), 464 279 F.2d 435; Gundersen, Cir., v. 9 United States emphasized the Fifth the broad 960; Roby, 10 518 F.2d respect reach of 2314 with to unlawful clearly 499 F.2d 151. It is also estab deprivations reach limited property, knowledge inter lished that actual of the transpor only by subsequent the fact of transportation state of the instrument on tation in interstate commerce: part required. the is not defendant * ** Masters, Cir., is, 9 of the statute United States v. aim 1060; Powers, Cir., course, 9 437 prohibit States the use of interstate 1160; Mingoia, 2 transportation goods facilities for hav- Cir., 424 F.2d 710. The essence of the ing qualities. certain unlawful This re- offense is the fraudulent scheme itself congressional purpose to reach flects a only and the interstate elеment is includ wrong- ways by all which an owner is for provide ed to a constitutional basis fully deprived of use benefits * * * jurisdiction. the exercise of federal Unit property. Con- the use of his Roselli, Cir., ed States v. 9 terms was gress by the use of broad 27 cert. S.Ct. person to make clear that if a trying [Emphasis supplied.] L.Ed.2d 828. property by unlaw- deprived of his * * * fraud, by ful means swin- dling, by by rightful- conversion one as set forth analysis of Our subsequent trans- possession, ap consistently Newson, supra, has been portation goods of such courts, Unit as articulated plied by many as a crime. prohibited commerce was F.2d 705 Ludwig, 523 ed congressional state movement of certificates of observations as to These was, times, ac- conclusion that at all the central means of lead intent of interstate At all requirement complishing design. the criminal merely to 2314 was intended times, Sparrow either in posses- actual constitutional basis for exer supply a sion of or constructive control of the aptly power. As stated of federal cise title, сertificates the documents which he in United States v. Ro the Ninth Circuit fraudulent, misrepresented exhibited in selli, (9th Cir. true, course states in the of their inter- Not state movements above outlined. (1971): L.Ed.2d did conceive fraudulent * * * aimed at the section 2314 is he scheme in but consummated the theft, fraud, counterfeiting evils of scheme in state false and fraudu- regulation not at the of interstate representation validity lent transportation. Suppression of move- subject false certificates of altered and/or theft and frаud is ment of fruits of title, employed fi- he to obtain documents suppress- means end of only the criminal advantage by nancial means of ing theft and fraud themselves. The language with agree fraud. We thus conditioning the reason for stat- sole Willis, employed in United States upon use of prohibitions utes’ 1976) that “all § is to a constitutional provide commerce requires transport is Defendant either that power. for the exercise of federal basis cause in interstate or to be interstate mere- Since security forged so deter- commerce the [as linchpin jurisdiction for and the place] at particular mined some time and culpa- in terms of relationship, bears knowing it made or falsely was [or underlying criminal bility, to the acts p. 382. altered].” objects it the of follows which are government the should not have to that II. transport in prove that was Sparrow contends that certificate of way reasonably foreseeable. Of any II title described in Count was not for course, is in accord this conсlusion with or gery falsely made document within statute, wording of which does meaning charged Count II 2314. any requirement by its terms include not September Sparrow on about foreseeability as to reasonable the in- duplicate caused a title certificate to be element the offense. terstate More to Bank in sent from know cases important, appellate several have been ing falsely the same to have transpor- held that fact of interstate noted, supra, As it is forged and uttered. tаtion, more, without is sufficient under to prior months uncontested several p. the statute. 707. time, July Spar this on or about standard, Applying this we hold that the Cadillac for a new row had traded presented the Government sufficient evi City, cash in Salt Lake Utah. Chevrolet and dence to sustain conviction under Nonetheless, argues inasmuch Sparrow I. Even if we assume that prop Oregon certificate as the not, fact, alter/forge did the certificate “is itself it is genuine, and it erly drafted of title Utah presentation to his ‘falsely made’ within ‘forgery’ altered/forged the certificate in its condi Sparrow relies on meaning 2314.” of § tion in Idaho where he the re-is obtained States, v. United course, which, sued certificate did not reflect the Bank’s security in the 1976Cad (1955), wherein 99 L.Ed. 745 $8,700.00, illac of fraudulent still the entire we stated: in encompassed scheme by the three-count statutes, words As in criminal used dictment had both its consumma origin and homoge “forged” are “falsely made” and inter- ‍​‌​​​​‌‌​‌‌​​​​‌‌​‌​‌‌​‌‌​​‌‌‌‌​‌‌​​​‌​​​‌‌​​‌​‌‍tion in the District Utah name, neous, ing an assumed Crim’s actions partaking They of each other. always con intent. synonymously have tended to establish fraudulent spurious strued to describe a or fictitious v. United 201 F.2d 33 Kreuter making distinguished from a false or They likewise tended to fraudulent statement. The words relate establish a scheme to defraud. United genuineness of execution and not falsi Scott, v. 457 F.2d 848 Moore, ty of content. 1972), cert. 93 S.Ct. 738; D.C., 60 F. United States Went (1972). Crim’s ac 52; O’Neil, C.C., worth & Territory 11 F. tions further caused the checks to move 525; Gutierrez, P. De N.M. violation of People, Rose v. 171 P. Colo. 2314, supra. Kreuter v. United Seсtion 1918C, 1193; Ford, L.R.A. State v. 89 Or. 1967), cert. 121, 172 802; Kramer, People P. 352 Ill. denied, 390 590; State, 185 N.E. Graham v. (1968). [Emphasis supplied]. 369; Tex.Cr.R. 51 S.W.2d Words & 527 F.2d at Phrases, p. Making application case, Sparrow In the knew instant this construction of the words as em titling of the Cadillac in his name ployed in Section it has been uni falsely genuine made and could not be formly held that a check drawn a true longer inasmuch as he no owned the vehicle existing maker on an “falsely bank is not and had not several owned for months. “forged” meaning made” or within the Crim, supra, Spаrrow’s As in actions tended statute, though even there were no to establish fraudulent intent scheme funds the account of the drawer in the defraud, which, Crim, bank; as we noted in and, drawee that an indictment or Newson, citing to our su affirmatively information which describes pra, is the essence of a 2314 violation. made and circumstances, this Sparrow’s argu manner states no federal Under offense un these der Section 2314. 216 F.2d at pass 763. ments do not muster. Sparrow also cites to our United States v. draft, money The mere fаct that a Crim, (10th 1975), 527 F.2d 289 Cir. cert. order, title, here, is or certificate of such as 47 not, itself, genuine, preclude does in and of (1976), supportive as posi of his 2314 conviction. In United States v. § disagree. Crim, tion. We supra, we Williams, (10th 1974), we 498 F.2d 547 Cir. Marteney, supra. clarified ‍​‌​​​​‌‌​‌‌​​​​‌‌​‌​‌‌​‌‌​​‌‌‌‌​‌‌​​​‌​​​‌‌​​‌​‌‍We left no room observed:

for doubt that Sparrow’s defendants in situ Appellant’s argument that the trial ation could be convicted under 2314. We Crim, supra giving proffered stated in court erred in not : setting instruction that which the forth statutes, As used in criminal the words appellant cоmmonly refers to as the ac- “falsely “forged” made” and are homoge cepted “forged” apparent- definition of is They neous. have been used to describe a predicated “spurious and, proposition on the that since making”, fictitious as such, “genuineness money relate to the blank genuine, order was execu States, appellant’s tion”. subsequent spurious, United 216 fictitious (10th unauthorized execution of it 348 did not 99 L.Ed. (1955). constitute making. or false This knew argument Crim at the execution of the checks is without merit. There is sub- signature that of “Cole” was falsely stantial evidence in the record that Wil- genuine, made and not since he was no liams did not have authority possess “Cole”; longer using the name order; such the money that he was not autho- knowledge may imputed be to him. rized sign his name payee, as Tasher, United States v. purported drawer had no authority to Furthermore, 1972). sign sign order; the money that the amount in the state where the instrument curred had been showing thereon money or altered condi check was first fоund of a stolen by means there placed Lee, and/or 485 F.2d at the execution tion. United States and that protector; spurious 46; was at money order States F.2d making of 45 - supplied]. 469; States, [Emphasis Conley v. United and fictitious. p. 551. 1928); v. Brit (C.C.D.Mass. ton, 24 Fed.Cas. Williams, is uncontested supra, it As in Lewis, also United States v. See authority to not have Sparrow did that 1977). In this 903 n. 1 set forth in request the title or even possess the document was first found case II, already had sold as he inasmuch Count in Idaho and no evidence altered condition cirсumstances, these the vehicle. Under suggest introduced to it was altered maker, the State drawer or leaving Utah. before the certificate of authority to draft without asserts, Thus, giving If, rise to the “essence of Sparrow’s majority actions title. the . the fraud- making only 2314 is and/or offense” under § the “execution 232, any viola- scheme, Maj. Op. and ficti- spurious . . were . ulent [title] become a federal law could tious”. of a local tion interstate merely by the incidental offense III. before, dur- after or perpetrator of a travel carefully considered have We concept, This activity. ing the criminal We hold allegations of error: remaining interesting, contrary is though collectively individually and they are instance, authority. For weight of merit. without purport not 2314 does established AFFIRM. WE larceny, punish but they goods after McKAY, Judge, dissenting: been stolen. Loman v. United have I 1957). The (8th Cir. 328-29 held that specifically has Ninth Circuit majority holds that a 2314 convic- The rath- passing but “proscribes not the transporting in interstate com- tion for forged checks.” transportation of er the or altered merce Gilinsky v. United security may proof be obtained without added). 1966) (emphasis was altered to its being transported in interstate commerce. the root Circuit, incidentally, is The Ninth majority misapprehends major by the upon source of the idea relied 2314 but also the limitations import § of federal element ity that the interstate construing criminal statutes. inherent justify the exer solely to crimes is included than a jurisdiction rather cise of federal majority

The can cite no case where a Maj. the crime. See substantive element of 2314 conviction was sustained without § majority quotes Op. at 231. The proof security prior that the was altered 979, (10th Newson, 981 531 F.2d States movement in interstate commerce. Three Roselli, hand, 1976) 432 circuits, Cir. and United States recognized on the other have (9th 1970), F.2d cert. security transported must be across 891 Cir. that the 401 state lines a or altered condition. 91 S.Ct. 27 (8th Hilyer, (1971). However, 543 F.2d 43 postures the factual Lee, 1976); 485 F.2d poor Cir. both them Newson and Roselli makе (4th 1973); United v. precedent 45-46 Cir. In for here. presented the issue (5th 1972). cases, 460 F.2d 469 Cir. both transportation interstate Furthermore, pre rebuttable there is a subjects securities they after were the forgery or alteration oc sumption proscribed activity was established.1 Newson, money orders cashed in system 1. In stolen banking payment Reserve sota: in Minne- for processed through Colorado were the Federal testimony de- There was clear 236 Count II

The issue in both cases whether the knowledge must have actual defendant II, again In discussing majority However, transportation. the interstate argument relies on the that “a scheme to finding knowledge actual ... is the of a defraud essence transportation required is not for conviction 234. Maj. Op. 2314 at § violation.” Again, requires 2314 inexorably does not lead 2314 more evil § than an § obtaining essence. action conclusion that the interstate element of Oregon title disposing certificate after 2314 is not substantive. the car even may constitute state crime or Lyda v. United 464 a stat- violation of another criminal 1960), upon (5th majority, relied ute, but a violation is not of prohibiting the aim of the statute as defines Because the certificate of title use “the of interstate facili executed, it genuinely was not a or goods having qual ties for certain unlawful made for purposes The view ities.” Fifth Circuit did include even under Tenth Circuit Marteney case. See acquire this which were to later unlawful goods 1954). “Tell- prohib its qualities. The statute terms ing a lie become forgery does not because it “transportpng] foreign in interstate or its Windsor, writing.” Re Best reduced to 6 altered, forged, any falsely Eng.Rep. (1865) (Black- & S. securities,” counterfeited U.S.C. burn, J., concurring). altering of securi forging not the which have interstate. ties majority acknowledges The our decision place where the scheme is conceived or we Marteney where held that the words impact where its ultimate will fall is not “forged” “falsely “gen made” relate to important by made the statute. A broad falsity of execution and not uinеness. congressional intent ferret out the evils content.” problem 763. The lurk, they of theft and fraud wherever even comes in majority’s discussion two established, unequivocally if is not determi decisions, Crim, subsequent United States v. native. A criminal can defendant suffer penalties of a statute when his 425 U.S. 47 L.Ed.2d 755 specific conduct satisfies the terms used in Williams, (1976) and United States v. the statute. The rule is clear that a crimi 1974). Wil Crim and terms; nal statute is to its it “must limited distinguishable clearly liams are from both strictly any ambiguity be construed and the facts of this case. In signеd be Crim the defendant checks with a lenity.” must resolved in favor of Unit longer using. name he was The false 396, 411, Enmons, ed States v. signature made the instruments fraudulent (1973); S.Ct. Likewise, in the “spurious, execution. Campos-Serrano, United States v. fictitious and unauthorized execution” was (1971); 30 L.Ed.2d at the core of decision in Williams. Fisher, 1143, 1145 United States v. other Marteney, on the hand, recognized this court that there could Because in this there is no evidence case be no violation of 2314 because “both that the title certificate was altered Utah warehouse and the check receipt true-name Idaho, prior to being be; there was no taken to are they purport what . . nei showing ther violated. I would of them 2314 was are false or [sic] execution, although their false they may be reverse Count I. procured negotiation fendant ille- to conclude checks of the stolen obtained from instruments, gal thereby causing gambling operations Angeles were their Los transportation. Vegas. then at 980-81. In Roselli Las 432 F.2d 531 F.2d 890. jury the court found evidence for sufficient particularly All consequences in this of these seem Similarly, at 763. in fact.” duly exe that we unnecessary title was in view fact case, the certificate certificate proved by Oregon properly pled officials. ‍​‌​​​​‌‌​‌‌​​​​‌‌​‌​‌‌​‌‌​​‌‌‌‌​‌‌​​​‌​​​‌‌​​‌​‌‍have sustained the cuted purported it to be. III, what precisely which carries a itself conviction under Count underlying the document Only sentence, the facts two-year as well as six concurrent were false. (four five-year six-year and two sentences sentenсes) accompanying in an case. See fraudulent exe between The distinction Sparrow, v. Robert D. No. United States is unmistak falsity of content cution and (10th 1979). 78-1882 Cir. also United See opin reasoned several well ably drawn in (10th Sparrow, v. In United States from other circuits. ions 936, 1972), cert. 93 S.Ct. U.S. Cir.), Jones, cert. de 1913, (1973). L.Ed.2d nied, 53 L.Ed.2d 97 S.Ct. instance, it was (1977), for determined reasons, For these I would reverse as a to the defendant that checks issued I and II. convictions Counts compa of a alterations result of fraudulent forged or were not ny’s payable accounts Although 2314. such

falsely made under § pre or false could constitute fraud

conduct

tenses, company checks as issued were, there execution and genuine

were

fore, at 355-56. forgeries. not States, 272 F.2d Cunningham v. United

See 1959); 793-94 BROWN, Plaintiff-Appellant, James Brown, (2d 542-43 States, 172 F.2d 1957); Wright v. United 1949); Pines v. United 311-12 SCHIFF, Defendant-Appellee. Steven ROBERTS, Jr., Granville States, 370 also Gilbert v. United U.S. See Petitioner-Appellant, 655-59, 8 L.Ed.2d 750 82 S.Ct. (1962);2 Supplemented, 41 A.L.R. 1529, 51 A.L.R. 568. A.L.R. WELDON, James J. run con today’s Not does decision Respondent-Appellee. language 2314 and the trary to 79-1620, 79-1899. Nos. circuits, implic othеr uniform decisions of convening without itly overturns Appeals, United States Court practice when en banc as is our reconsider Tenth Circuit. addition, majori our cases. ing Dec. 1979. Submitted strict construction ty violates the rule of “The fact that applied to criminal statutes. Decided Jan. particular activity may be within the policy general classification and same [by a criminal does

those covered statute] necessarily bring it within the ambit of prohibition.” criminal Railroad, & Maine

Boston (1965).

85 S.Ct. Columbia, City Bouie v.

See

351-54, 1697, 12 (1964). (citing, ‍​‌​​​​‌‌​‌‌​​​​‌‌​‌​‌‌​‌‌​​‌‌‌‌​‌‌​​​‌​​​‌‌​​‌​‌‍Although dealing 2314. 370 U.S. at 82 S.Ct. 1399 the court in Gilbert was Marteney; g., concept v. United 18 U.S.C. e. Greathouse with the under 1948)). approval had it cited with cases which given construction. the same

Case Details

Case Name: United States v. Robert Dahle Sparrow

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 10, 1980

Citation: 614 F.2d 229

Docket Number: 78-2017

Court Abbreviation: 10th Cir.