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UNITED STATES v. MCNAIR

April 21, 1972

UNITED STATES of America
v.
Kenneth Maurice McNAIR


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Defendant was originally charged under a two count indictment alleging first, that defendant received goods unlawfully removed from customs custody knowing the same to have been unlawfully removed, *fn1" and second, that the defendant threw the cassette tape player-radio which was the subject of this indictment into the Delaware River, or aided and encouraged that throwing, in violation of 18 U.S.C. § 2232, § 2.

 Trial was held on March 8, 1972, before this Court. No evidence was introduced which would justify a conclusion, beyond a reasonable doubt, that the defendant had been the person in the unruly crowd which gathered who threw the radio, or that defendant aided or abetted that throwing, and so defendant was acquitted of Count 2 by this Court. Defendant was convicted as to Count 1 however, but in his post-trial motions, defendant has raised some serious questions regarding the propriety of some of this Court's rulings at trial on the competence and admissibility of certain evidence presented by the Government. This memorandum is being written to examine these objections more fully.

 The relevant portions of 18 U.S.C. § 549 read as follows:

 
"Whoever, maliciously enters any bonded warehouse or any vessel or vehicle laden with or containing bonded merchandise with intent unlawfully to remove therefrom any merchandise or baggage therein, or unlawfully removes any merchandise or baggage in such vessel, vehicle, or bonded warehouse or otherwise in customs custody or control; or
 
Whoever receives or transports any merchandise or baggage unlawfully removed from any such vessel, vehicle, or warehouse, knowing the same to have been unlawfully removed --
 
Shall be fined not more than $5,000 or imprisoned not more than two years, or both.".

 Under the terms of 18 U.S.C. § 549, the evidence in this case must establish a number of things beyond a reasonable doubt:

 
1. That something was removed from customs custody;
 
2. That the removal was unlawful -- this term in this statute has been interpreted to mean that the taking was done with felonious intent analogous to common law larceny, and not simply in contravention of some existing law or regulation. United States v. O'Brien, D.C. Mich., 255 F. Supp. 755 (1965), Affd. 365 F.2d 601 (6th Cir., 1966), Hughes v. United States, 338 F.2d 651 (1st Cir., 1964);
 
3. That defendant received the article; and
 
4. That defendant knew it was unlawfully taken. (Defendant need not have exact technical knowledge that it was in customs custody, merely that it was feloniously taken. See United States v. O'Brien, supra.)

 The Government's theory of the case at trial was as follows:

 
1. That the Sugura Maru was a Japanese freighter;
 
2. That the Sugura Maru was tied up at Pier 80 on the day in question;
 
3. That part of the cargo in the hold of the Sugura Maru was Weltron Solid State 8-track stereo portable ...

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