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UNITED STATES v. BIANCO
August 12, 1976
UNITED STATES OF AMERICA
ALBERT BIANCO, FREDERICK WAYNE FASICK
The opinion of the court was delivered by: BRODERICK
Constitutionality of 18 U.S.C. § 2314.
The defendant contends that 18 U.S.C. § 2314 is unconstitutional. The portion of § 2314 under which the jury found him guilty makes it a crime to:
transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5000 or more, knowing the same to have been stolen, converted, or taken by fraud . . . .
The defendant's argument is that the mere possession of stolen goods within the State of Pennsylvania, without more, is a crime exclusively within the jurisdiction of the state of Pennsylvania; therefore, he contends that 18 U.S.C. § 2314 violates the Tenth Amendment of the Constitution in that it deprives states of the powers expressly reserved or necessarily implied to them. In making this argument, the defendant misconstrues the essential import of this statute. Section 2314 does not make the mere possession of stolen property a federal crime but does make it a federal crime to transport in interstate commerce stolen property knowing it to have been stolen. In Russell v. United States, 119 F.2d 686 (8th Cir. 1941), the Eighth Circuit specifically rejected the argument that the predecessor statute of 18 U.S.C. § 2314
violated the Tenth Amendment. The defendant does not take issue with the Russell holding; his sole argument is that the Supreme Court has never ruled on the question. Russell, however, relies upon Brooks v. United States, 267 U.S. 432, 45 S. Ct. 345, 69 L. Ed. 699 (1925), and cites Brooks for the proposition that: "there can be no doubt of the power of Congress to make transportation in interstate commerce of stolen articles a crime." 119 F.2d at 688. The Supreme Court in Brooks considered the question of Congress's power to "[forbid] and [punish] the use of such [interstate] commerce as an agency to promote immorality [and] dishonesty . . ." 45 S. Ct. at 346, and said:
Congress may properly punish such interstate transportation by anyone with knowledge of the theft because of its harmful result and its defeat of the property rights of those whose [cars] against their will are taken into other jurisdictions. 45 S. Ct. at 346-347.
The defendant contends that the Court abused its discretion and erred when it ruled that certain limited information concerning the defendant's recent conviction could be introduced by the government to impeach him if he took the stand. The defendant was convicted by a jury in a New Jersey state court of breaking and entering, assault and armed robbery several weeks prior to this trial. Before ruling, the Court permitted both sides to present oral argument and permitted the defendant, outside the presence of the jury, to take the stand and present his testimony to assist the Court in determining whether the prejudicial effect of the impeachment testimony outweighed its probative value. After discussing with both attorneys the Court's interpretation of Rule 609(a) of the Federal Rules of Evidence and the cases bearing on the question, and giving them additional opportunity for oral argument, the Court ruled as follows:
I have carefully considered Rule 609(a), the Committee notes which explain the Rule, the testimony of the defendant Fasick, and the cases I referred to previously. I am ruling that the government may introduce the prior conviction of armed robbery and breaking and entering to impeach the defendants if the defendants should take the stand. I base this ruling on the part of Rule 609(a) of the Federal Rules of Evidence which states that the evidence of a conviction of a crime may be admitted if the crime involved dishonesty or false statement. My understanding of the word "dishonesty" as used in Rule 609(a) is that it includes the crimes of armed robbery and breaking and entering which are crimes for which the defendants have been found guilty in New Jersey. I think that evidence of these convictions is relevant to attack the defendants' credibility. My interpretation of Rule 609(a) is that I have no discretion to exclude evidence of crimes of dishonesty when used for impeachment purpose. I refer also to then Judge Burger's opinion in Gordon v. United States, [127 U.S. App. D.C. 343], 383 F.2d 936 (1967), and Judge Ganey's opinion in United States v. Remco, 388 F.2d 783 (3rd Cir. 1968), which, although written before the adoption of the Federal Rules of Evidence, are guides to the type of crimes which reflect adversely on a man's honesty and integrity.
Judge Burger includes stealing as a crime which would reflect adversely on a man's dishonesty.
I have also considered this as a felony which could only be admitted under Rule 609(a) subsection (1) wherein the Court has discretion. After hearing the defendant's evidence outside the presence of the jury, the Court determines that the probative value of admitting his recent conviction outweighs the prejudice to the defendant.
I am ruling, however, that the conviction for assault cannot be brought out. Assault is not a crime of dishonesty. In the exercise of my discretion, I think the prejudice to the defendants resulting from the government's introduction of the conviction for assault would outweigh its probative value under the facts and circumstances of this case.
The United States Attorney shall not go into any details of the prior conviction but shall be limited to bringing out: (1) That the defendant was found guilty of armed robbery and breaking and entering; (2) the date ...
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