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CRM 1000-1499

1335. 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, 487 F.2d 828 (2d Cir. 1973). Actual knowledge by the defendant of the interstate or foreign commerce character of the stolen goods is not required as that is only a jurisdictional requirement. See United States v. Zarattine, 552 F.2d 753 (7th Cir. 1977); United States v. Houle, 490 F.2d 167 (2d Cir. 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 foreign shipment; (2) be part of an interstate or foreign shipment; or (3) constitute an interstate or foreign shipment. The use of the conjunction "or" between these clauses suggests that the criteria are disjunctive rather than conjunctive. See United States v. Astolas, 487 F.2d 275 (2d Cir. 1973). The test for determining whether a shipment is in interstate or foreign commerce is a practical one, and depends upon the relationship between the sender, the receiver, and the carrier, the indicia of interstate or foreign commerce (i.e., 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 Cir. 1979); United States v. Gates, 528 F.2d 1045 (5th Cir. 1976).

An interstate or foreign shipment basically commences when the shipper identifies the goods to be shipped, separates them from his other inventory, and has them ready for shipment. See Astolas, 487 F.2d 275; United 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 dominion and control over the goods. See United States v. Luman, 622 F.2d 490 (10th Cir. 1980); Gates, 528 F.2d 1045; Astolas, 487 F.2d 275; Winer v. United States, 228 F.2d 944 (6th Cir. 1956); Chapman v. United States, 151 F.2d 740 (8th Cir. 1945); O'Kelly v. United States, 116 F.2d 966 (8th Cir. 1941). If the carrier is the actual owner of the goods, the arrival and delivery to the destination site, regardless of an actual acceptance by the owner's destination agents, may terminate the shipment for purposes of 18 U.S.C. § 659. See United States v. Marshall, 501 F. Supp. 348 (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 unreported opinion. The Court held that as the jury had been properly instructed that it had to find there had been no final delivery in order to convict, its verdict 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 JM 9-61.300]