Opinion
John R. Wilks, U. S. Atty., Fort Wayne, Ind., Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for plaintiff.
Max Cohen, Gary, Ind., for defendants.
MEMORANDUM OPINION
ALLEN SHARP, District Judge.
The indictment in this case filed on March 1, 1973 in Count II alleges that the defendants "on or about the 13th day of December, 1972 and continuing to on or about the 14th day of December, 1972 ... knowingly did have in their possession chattels of a value in excess of $100.00, that is 39,273 pounds of beef which had been embezzled and stolen while said chattels were moving as, were a part of, and constituted an interstate shipment of freight and express from Sioux City, State of Iowa, to Brooklyn, State of New York ... then knowing said chattels to have been embezzled and stolen ..." Count I made similar charges against the defendant Dan Veal covering the period from the 25th of September, 1972 to the 26th of September, 1972 in regard to 326 cases of liquor moving in interstate commerce from Louisville, State of Kentucky, to Buffalo, State of New York.
The indictment in this case purports to be under Title 18, United States Code, Section 659, which provides in pertinent part as follows:
On November 9, 1973 the defendants filed their motion to dismiss the indictment in this case because of the alleged failure of the indictment to state the specific place or facility from which said chattels were stolen and failure to sufficiently identify the goods and chattels in question.
Section 659 and its comparable predecessors have been a part of the federal criminal law for many years. There have been some slight modifications over the years principally adding the names of new kinds of facilities used to transport or convey goods in interstate commerce. The predecessor of this statute was interpreted more than fifty years ago in Grandi v. United States, 262 F. 123 (6th Cir. 1920), as follows:
As recently as three years ago the same court has cited and followed the reasoning in Grandi. See United States v. Privjansky, 415 F.2d 1045 (6th Cir. 1969).
One of the leading decisions on this subject is United States v. Wora, 246 F.2d 283, 286 (2d Cir. 1957), where the court stated:
Further insight into the legislative purpose of Section 659 is found in Dunson v. United States, 404 F.2d 447, 448 (9th Cir. 1968), cert. den. 393 U.S. 1111, 89 S.Ct. 925, 21 L.Ed.2d 808, where the court stated:
For a similar reading of Section 659 and the sufficiency of indictments brought thereunder see United States v. Couver, 472 F.2d 472 (9th Cir. 1973); United States v. Spivey, 448 F.2d 390 (4th Cir. 1971), cert. den. 405 U.S. 927, 92 S.Ct. 976, 30 L.Ed.2d 799.
The decision in United States v. D'Antonio, 342 F.2d 667 (7th Cir. 1965) appears to be in accord with the well reasoned decisions above cited and is in no way inconsistent therewith. Another recent decision from a District Court in this Circuit is also consistent therewith. See United States v. Hampton, 341 F.Supp. 481, 483 (E.D.Wis.1972) where the allegations of the indictment was in precisely the same language as found in the indictment here. Judge Gordon stated:
A good statement by which the adequacy of indictments brought under Section 659 and under similar statutes is found in United States v. Airdo, 380 F.2d 103 (7th Cir. 1967), where Judge Swygert, speaking for the court, stated:
In following the above line of cases one must readily admit that there is some authority to the contrary. See United States v. Manuszak, 234 F.2d 421 (3rd Cir. 1956), which was reaffirmed by the same Circuit in United States v. Allegrucci, 258 F.2d 70 (3rd Cir. 1958). It should be emphasized, however, that Manuszak was considered and specifically rejected in Wora, supra, Dunson, supra, and Spivey, supra. (It would also appear that Manuszak is consistent with Wolkoff v. United States, 84 F.2d 17 (6th Cir. 1936) but the same Circuit has later rejected the reasoning of both Manuszak and Wolkoff.)
It is also correct that there is some older authority below the Court of Appeals level for the defendants' position. See United States v. McCulloch, 6 F.R.D. 559 (ND Ind.1947), and United States v. Linderman, 20 F.R.D. 459 (DC Mont.1957). While both McCulloch and Linderman have their source in highly respected members of the Federal Judiciary it would seem that the more recent authority, above cited, from the several Circuits would represent the better and more current interpretation of Section 659 and the indictments thereunder. Therefore, this court respectfully declines to follow the reasoning in McCulloch and Linderman.
The question of the sufficiency of the description of the goods in both Counts of the indictment must now be considered. In Sterling v. United States, 333 F.2d 443, at page 445 (9th Cir. 1964), cert. den. 379 U.S. 933, 85 S.Ct. 333, 13 L.Ed.2d 344, the court states:
Based upon the above and foregoing authorities the court determines that the defendants' Motion to Dismiss is without merit and therefore the same is hereby denied.