intrusion is somewhat less compared to other types of seizures. The detention in Davis of the more than twenty individuals was for no other reason than to facilitate the taking of their fingerprints. Since no probable cause whatsoever existed for the detention it was deemed to be unreasonable, and, accordingly, the resulting fingerprints obtained were held inadmissible.
In Beightol v. Kunowski, 486 F.2d 293 (3 Cir. 1973), the Court of Appeals for the Third Circuit discussed the impact of United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973) upon Davis. Although the taking of fingerprints does not violate the privilege against self-incrimination, the unlawful detention of a person for the purpose of obtaining those fingerprints is still prohibited. The court in Beightol states: "The issue, then, is whether the detention on January 31, 1972 was lawful."
Thus we conclude from Beightol that the taking of fingerprints from a defendant while lawfully incarcerated does not violate the Fourth Amendment. The mere fact of lawful incarceration is a sufficient basis to permit the taking of prints. The prints taken from Whitfield on July 30, 1973, while lawfully incarcerated at the Philadelphia Detention Center were therefore admissible.
We see no merit to Whitfield's second contention that the admission of his major case prints violated his Fifth Amendment right against self-incrimination. The Supreme Court has held that the protection of the Fifth Amendment applies only to compelled testimonial or communicative evidence and not to mere identifying physical characteristics such as fingerprints. United States v. Dionisio, supra ; Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). We do not perceive any distinction between fingerprints and palmprints for either Fourth or Fifth Amendment purposes.
Lastly, defendant Whitfield argues that his Sixth Amendment right to counsel was violated by the admission of the July 30, 1973 prints. The taking of fingerprints has not been held to be a critical stage of the prosecution. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); Schmerber v. California, supra. Indeed since there was no Fourth Amendment violation and defendant had no right to withhold his prints under the Fifth Amendment privilege, we fail to see any requirement for the presence of counsel.
Whitfield next argues that we erred by refusing to supply him with a transcript of the preliminary hearing held on July 19, 1973, before the Honorable Richard A. Powers, III, United States Magistrate, at which time charges of theft in connection with the above offense were dismissed.
At the end of the suppression hearing and immediately prior to commencing the trial, counsel for Whitfield requested the Court to provide a transcript of the above hearing allegedly for the purpose of impeaching the testimony of F.B.I. Agent Dillard Howell. At the time the request was made counsel had available to him the tape recording of the hearing. We requested counsel, who listened to the tape during the suppression hearing, to make an offer of proof as to any inconsistent statements made by Agent Dillard Howell. Counsel was unable to make any such showing, and accordingly we denied the motion.
One of the essential elements of the crime of possession under 18 U.S.C. § 659 is that the defendant knew that the goods he possessed were stolen. Defendant Johnson alleges that we erred by instructing the jury that unexplained possession of recently stolen property can be an inference in light of surrounding circumstances that the defendant knew the goods were stolen. This instruction, Johnson contends, shifts the burden of proof to the defendant and requires him to bring forth testimony as to his innocence. Johnson cites United States v. Allegrucci, 258 F.2d 70 (3 Cir. 1958), for support of his contention. In Allegrucci the District Court instructed the jury that "possession of recently stolen goods cast upon those holding them the burden of explaining their possession, and a jury may infer guilty knowledge of the theft in the absence of explanatory facts and circumstances consistent with innocence." 258 F.2d at 74. The Circuit Court of Appeals found such language to be prejudicial error and reversed.
We believe the language used in our charge to the jury
in the instant case can be distinguished from the language used by the District Court in the Allegrucci case,
and that our instruction comports with the requirements of the Third Circuit Court of Appeals as expressed in United States v. Bamberger, 456 F.2d 1119, 1132-35 (3 Cir. 1972), cert. denied 413 U.S. 919, 93 S. Ct. 3067, 37 L. Ed. 2d 1040 (1973), and United States v. Rispo, 470 F.2d 1099, 1101-02 (3 Cir. 1973). The fingerprint evidence introduced by the government through the testimony of fingerprint expert James K. Howell allowed the jury to find that Johnson had exercised possession over the stolen goods. Our instruction permitted the jury to draw an inference in light of the surrounding circumstances that Johnson had knowledge that the goods in the back of the van were stolen. Such an inference does not shift the burden of proof upon the defendant to prove his innocence but merely leaves the jury free to either accept or reject the inference in whole or in part.
The government is still required to prove each element of the crime beyond a reasonable doubt. As long as there exists proof of the basic facts, in this instance possession of the recently stolen goods, the law in this Circuit permits such an instruction to be given to the jury.
We are satisfied that no error was committed which would require the granting of a new trial.
We are also satisfied that the weight of the evidence is sufficient to support the jury's verdicts of guilty on both Counts II and III of the indictment.
Although our determination of the Whitfield and Johnson motions obviates the need to address the next allegation of error, because of the paucity of authority in this circuit and the vigor with which it was argued, we believe that this issue merits discussion.
Defendants contend that we erred by refusing to charge the jury that "knowledge by the defendant of the interstate character of the shipment is an essential element of conspiracy to possess goods stolen from interstate commerce."
The circuits are in complete agreement that no such showing is required for a defendant to be convicted of the substantive offense. However, when the charge is conspiracy a divergence of opinion emerges. Since the Court of Appeals for this circuit apparently has not yet had occasion to decide this issue, we must turn to the views held by some of the other circuit courts.
The dispute focuses upon (1) whether knowledge on the part of the defendant of the interstate nature of the goods is viewed as an element of scienter, requiring proof of defendant's anti-federal intent, either actual or implied, or (2) the interstate nature of the goods constitutes a mere prerequisite for establishing federal jurisdiction. The former view, if adopted, involves further dissection and requires a determination as to whether the anti-federal intent necessary to support the conspiracy conviction can be established (1) only by specific or actual knowledge on the part of the defendant that the goods involved are of an interstate nature, or (2) by merely showing the defendant's disregard for the nature or source of the goods.
Counsel for defendants would require the government to prove that Whitfield and Johnson had actual knowledge of the interstate nature of the goods and in support of such contention cite U.S. v. Vilhotti, 452 F.2d 1186 (2 Cir. 1971), cert. denied 406 U.S. 947, 32 L. Ed. 2d 335, 92 S. Ct. 2051 (1972). In Vilhotti, the Second Circuit reversed a conspiracy conviction
because the trial judge refused, "as requested by counsel, to charge the jury that in order to convict for conspiracy, they would have to find that the defendants not only knowingly bought, received or possessed goods which were stolen but that defendants knew that they were stolen from interstate commerce." 452 F.2d at 1189. The Vilhotti court then proceeded to note the government's concession that cases in the Second Circuit have uniformly held that a conspiracy to violate 18 U.S.C. § 659 and similar statutes requires the specific intention to buy, receive or possess goods which defendants know were stolen from interstate commerce. 458 F.2d at 1189.
More recently, in U.S. v. Alsondo, 486 F.2d 1339 (2 Cir. 1973) cert. granted U.S. v. Feola, 416 U.S. 935, 94 S. Ct. 1932, 40 L. Ed. 2d 285, 42 U.S.L.W. 3573 (1974), the Second Circuit again dealt with the same issue but with respect to a different substantive statute. In Alsondo, defendants were charged, inter alia, with violation of 18 U.S.C. § 111, assaulting a federal officer, and 18 U.S.C. § 371, conspiracy to commit the above offense. The jury returned verdicts of guilty and the defendants appealed alleging the trial judge erred in his charge to the jury.
The court reversed, holding that specific knowledge of the official federal capacity of the intended assault victims must be proved to establish the alleged conspiracy though not required to convict for the substantive offense.
A better view is held by the Eighth Circuit as expressed in Nassif v. U.S., 370 F.2d 147 (8 Cir. 1966). In Nassif, defendants were found guilty of violating 18 U.S.C. § 659, stealing, taking and carrying away with intent to convert goods out of interstate commerce, and 18 U.S.C. § 371, conspiracy to commit the substantive offense. Although the court acknowledged the necessity for the prosecution to establish that the scope of the conspiracy included an anti-federal intent, it did not require that such intent be proven only by actual knowledge on the part of the defendant that the goods were involved in interstate commerce. Rather, the court allowed the anti-federal intent or knowledge that the goods were stolen from interstate commerce to be inferred or implied:
"Co-conspirators seeking illicit gain from conversion of another's property seldom become selective as to whether the goods they steal flow in commerce or not. Clearly, if the plan was to steal merchandise only from a known defined local source Nassif might have been guilty of conspiracy to steal or conceal, which only a state may punish. But if the scheme is to steal goods, wherever they may be found, and in fact, goods are stolen from interstate commerce, then we feel the scope of the conspiracy can be broad enough to imply intent to commit a federal crime."