Interstate or Foreign Commerce Aspect of Shipment
The interstate or foreign commerce aspect of 18 U.S.C. § 659
relates to the time of theft, not to the time of the defendant's receipt or
possession of stolen property. See United States v. Tyers,
F.2d 828 (2d Cir. 1973). Actual knowledge by the defendant of the
foreign commerce character of the stolen goods is not required as that is
a jurisdictional requirement. See United States v. Zarattine,
F.2d 753 (7th Cir. 1977); United States v. Houle, 490 F.2d 167 (2d
1973); Tyers, 487 F.2d 828.|
Section 659 of Title 18 states three ways in which the commerce
requirement can be met: the goods can (1) be moving as an interstate or
shipment; (2) be part of an interstate or foreign shipment; or (3)
interstate or foreign shipment. The use of the conjunction "or" between
clauses suggests that the criteria are disjunctive rather than conjunctive.
See United States v. Astolas, 487 F.2d 275 (2d Cir. 1973).
test for determining whether a shipment is in interstate or foreign commerce
a practical one, and depends upon the relationship between the sender, the
receiver, and the carrier, the indicia of interstate or foreign commerce
waybills, shipping documents, etc.) at the time the theft occurs, and
preservation of Congressional intent. No single factor is conclusive in the
determination. See United States v. Wills, 593 F.2d 285 (7th
1979); United States v. Gates, 528 F.2d 1045 (5th Cir. 1976).
An interstate or foreign shipment basically commences when the
identifies the goods to be shipped, separates them from his other inventory,
has them ready for shipment. See Astolas, 487 F.2d 275;
States v. Parent, 484 F.2d 726 (7th Cir. 1973); United States v.
Sherman, 171 F.2d 619 (2d Cir. 1948). The necessary commerce character
continues until the shipment reaches its destination and is delivered to the
receiver (i.e., consignee) and the receiver accepts and takes complete
and control over the goods. See United States v. Luman, 622
490 (10th Cir. 1980); Gates, 528 F.2d 1045; Astolas, 487 F.2d
Winer v. United States, 228 F.2d 944 (6th Cir. 1956); Chapman v.
States, 151 F.2d 740 (8th Cir. 1945); O'Kelly v. United States,
F.2d 966 (8th Cir. 1941). If the carrier is the actual owner of the goods,
arrival and delivery to the destination site, regardless of an actual
by the owner's destination agents, may terminate the shipment for purposes
U.S.C. § 659. See United States v. Marshall, 501 F.
(N.D.Ga. 1980). (Note: The district court's judgment of acquittal
notwithstanding the verdict was reversed on September 23, 1981 by the United
States Court of Appeals for the Fifth Circuit in an unpublished and
opinion. The Court held that as the jury had been properly instructed that
had to find there had been no final delivery in order to convict, its
implicitly resolved that issue against the defendant, and, as there was
sufficient evidence to support it, it should not have been set aside.)
[cited in USAM 9-61.300]