APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Adams, Van Dusen and Higginbotham, Circuit Judges.
Defendants Marvin Garber and Nicholas Denucci were charged in a four-count indictment with various offenses arising out of the theft of copper cathodes from the Northern Metal Company (Northern Metal) pier in Philadelphia, Pennsylvania, in March 1978. Count I charged that Garber and Denucci stole from Northern Metal's storage facility eight copper cathodes which were part of an interstate or foreign shipment of freight in violation of 18 U.S.C. § 659 (1976). Count II charged that they unlawfully had the same copper cathodes in their possession in violation of 18 U.S.C. § 659 (1976). Count III charged that they unlawfully removed copper cathodes from customs custody and control in violation of 18 U.S.C. § 549 (1976). Count IV charged that they conspired with each other to violate §§ 659 and 549 in violation of 18 U.S.C. § 371 (1976). After a lengthy trial, a jury found both Garber and Denucci guilty on all four counts. The district court sentenced each defendant to concurrent one-year terms of imprisonment on Counts I, II and III, and to a subsequent five-year term of probation on Count IV. The defendants were also ordered to make restitution. Garber and Denucci filed timely appeals, based on several legal claims. After considering each contention raised by the defendants, we affirm the § 659 conviction of theft from foreign commerce (Count I), reverse the conviction of receipt and possession of goods stolen from a foreign shipment (Count II), reverse the conviction of removal of goods from customs custody and control (Count III), and affirm the conviction of conspiracy (Count IV).
Cerro Sales Corporation (Cerro) represents the country of Chile in the sale of Chilean copper in the United States. Each year Cerro sells about 70,000 tons of Chilean copper to various corporations in the United States. In 1978 one of Cerro's long-term contracts required it to sell 1200 tons of copper cathodes*fn1 per month to Anaconda American Brass Company (Anaconda). One of the monthly shipments of copper consigned to Anaconda was enroute from Chile to Bridgeport, Connecticut, in February 1978 when the steamship company carrying the copper experienced labor problems at several locations, including Bridgeport. Under the ocean bills of lading, the steamship company had the right to divert the cargo to other ports. In this instance the steamship company chose to discharge the cargo in Philadelphia. Cerro found that the freight costs for shipping the copper from Philadelphia to Connecticut were prohibitive, making delivery to Bridgeport impracticable. Cerro was thus forced to try to find other buyers for the copper. In the interim the copper cathodes remained at the Northern Metal pier, where the cargo had arrived on February 22, 1978.
In the fourth week of March 1978, a number of cathodes disappeared during the night from the warehouse at Northern Metal's pier. During that week, Garber and Denucci, while on duty as Philadelphia police officers, drove their patrol cars onto the pier on several nights and parked next to the area where the copper was stored. At these times Garber was away from his assigned police district. Garber and Denucci always left the pier at the same time, approximately 20 to 30 minutes after they had arrived. Subsequent investigations revealed that traces of copper were found in the trunks of both defendants' patrol cars and on their police uniforms.
The defendants first challenge their conviction under § 659, asserting that the copper cathodes were not part of foreign or interstate commerce when they were stolen. They argue that the foreign shipment had come to an end when the cargo was unloaded in Philadelphia.
Without question, a conviction under § 659 can only be sustained if there is evidence that the stolen items were goods "moving as or which are a part of or which constitute an interstate or foreign shipment of freight."*fn2 There is no requirement of literal movement; goods which are part of or constitute an interstate or foreign shipment are covered by the statute even if not in motion at the time of the theft. United States v. Gollin, 176 F.2d 889, 893 (3d Cir.), cert. denied sub nom. Richman v. United States, 338 U.S. 848, 70 S. Ct. 89, 94 L. Ed. 519 (1949); United States v. Wills, 593 F.2d 285 (7th Cir.), cert. denied, 441 U.S. 964, 99 S. Ct. 2413, 60 L. Ed. 2d 1070 (1979); United States v. Williams, 559 F.2d 1243 (4th Cir. 1977); United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973), cert denied sub nom. Edin v. United States, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305 (1974). The test for determining whether goods are part of an interstate or foreign shipment is a practical one based on common sense and administered on an ad hoc basis. United States v. Astolas, 487 F.2d at 279. In order to make this determination, courts look to a variety of factors, such as the relationship between the consignee, consignor, and carrier; the indicia of interstate or foreign commerce at the time of the theft; and the preservation of the congressional intent in enacting this statute. United States v. Gimelstob, 475 F.2d 157, 164 (3d Cir.), cert. denied, 414 U.S. 828, 94 S. Ct. 49, 38 L. Ed. 2d 62 (1973); United States v. Gates, 528 F.2d 1045, 1047 (5th Cir.), cert. denied, 429 U.S. 839, 97 S. Ct. 110, 50 L. Ed. 2d 101 (1976); United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970); United States v. Astolas, 487 F.2d at 279. The delivery of goods to a carrier before the theft occurred, if applicable, and the physical location of the shipment when stolen are important considerations, United States v. Astolas, 487 F.2d at 279, but no one factor is conclusive. United States v. Parent, 484 F.2d 726, 729 (7th Cir. 1973), cert. denied, 415 U.S. 923, 94 S. Ct. 1427, 39 L. Ed. 2d 479 (1974). Rather, each case must be evaluated on its own particular facts, United States v. Gimelstob, 475 F.2d at 164, recognizing that § 659 was designed to promote the flow of goods in interstate and foreign commerce, and that "the carrying out of this purpose is not to be hampered by technical legal conceptions." United States v. Waronek, 582 F.2d 1158 (7th Cir. 1978), quoting United States v. Astolas, 487 F.2d at 279.
Both parties agree that the copper cathodes involved in this case constituted a foreign shipment at least until the ship docked in Philadelphia. They also agree that a foreign or interstate shipment does not lose its characteristic as such "until it arrives at its final destination and is there delivered." United States v. Yoppolo, 435 F.2d 625, 626 (6th Cir. 1970). Garber and Denucci contend, however, that once the shipment of copper was diverted to Philadelphia and it became clear that the copper cathodes could not be delivered to their original destination in Connecticut, Philadelphia became the final destination of that particular shipment. The Government, on the other hand, argues that Philadelphia was only a temporary stop, occasioned by an unforeseen change in route by the shipping company.*fn3 The Government emphasizes that the evidence demonstrated that Cerro did not seek to have the copper delivered to Philadelphia, did not intend to keep it there, intended to sell all the copper cathodes it imported, and at the time of the theft was seeking another party to replace Anaconda as purchaser of that specific lot of copper. We believe that a common sense view of the facts in this case requires us to agree with the Government's position. Although, at the time of the theft, Cerro did not have another specific purchaser in mind, there was uncontradicted evidence that Cerro had no use for the copper cathodes at its dock in Philadelphia, and was attempting to sell the shipment to companies located elsewhere.
Despite this evidence, the defendants vigorously assert that Philadelphia must be viewed as the final destination of the copper. Their primary argument is that the cathodes remained in Philadelphia for such an extended period of time that the shipment could not have been considered temporarily delayed. The cases explicitly hold that in determining whether interstate or foreign commerce is involved under § 659, the crucial time is the time of the theft. United States v. Gollin, 166 F.2d 123 (3d Cir.), cert. denied, 333 U.S. 875, 68 S. Ct. 905, 92 L. Ed. 1151 (1948); United States v. Tyers, 487 F.2d 828 (2d Cir. 1973); cert. denied, 416 U.S. 971, 94 S. Ct. 1995, 40 L. Ed. 2d 560 (1974); Winer v. United States, 228 F.2d 944 (6th Cir.), cert. denied, 351 U.S. 906, 76 S. Ct. 695, 100 L. Ed. 1442 (1956); United States v. Hardaway, 455 F. Supp. 226 (N.D.Ill.1978), aff'd, 593 F.2d 285 (7th Cir.), cert. denied, Wills v. United States, 441 U.S. 964, 99 S. Ct. 2413, 60 L. Ed. 2d 1070 (1979). Delays enroute do not deprive shipments of continued characterization as interstate or foreign so long as the goods have not yet reached their destination, United States v. Augello, 452 F.2d 1135, 1141 (2d Cir. 1971), cert. denied, 406 U.S. 922, 92 S. Ct. 1787, 32 L. Ed. 2d 122 (1972), and the shipper or carrier intends to resume the journey. United States v. Maddox, 394 F.2d 297 (4th Cir. 1968).
In the instant case, at the time the thefts began, the copper had been in Philadelphia for 28 days.*fn4 The defendants argue that this demonstrates that there was more than a brief delay in the journey.*fn5 Under the circumstances present in this instance, we do not perceive 28 days to be such an extended length of time that it necessarily converts a temporary destination into a final one. In United States v. Augello, 452 F.2d 1135 (2d Cir. 1971), a shipment first entered the United States when it arrived at the docks in New York. Its final destination was a warehouse located elsewhere within the state of New York. It was stolen 11 days after arrival while enroute to the warehouse. The court held that this shipment, though somewhat delayed, was still in foreign commerce at the time of the hijacking.*fn6 Moreover, United States v. Maddox, 394 F.2d 297 (4th Cir. 1968), upon which Garber and Denucci rely, is not to the contrary. In Maddox, a sugar broker regularly purchased large quantities of sugar from Puerto Rico. The sugar was shipped to Baltimore and stored temporarily in a warehouse. Maddox stole bags of sugar from the warehouse over a three-month period. The court upheld his conviction under § 659, despite Maddox's claim that the sugar in the warehouse had lost its character as foreign or interstate commerce. The court stated:
"The deposit of cargo in a warehouse may under certain circumstances constitute a coming to rest, marking the termination of an interstate or foreign shipment. At other times, however, the stop-off at the warehouse may be only a pause in the course of an uncompleted journey. Standing alone, the removal of goods to a warehouse is not conclusive; nor is the consignee's power to divert the goods from the intended interstate commerce. See Champlain Realty Company v. Town of Brattleboro, 260 U.S. 366, 43 S. Ct. 146, 67 L. Ed. 309 (1922). These are merely factors to be considered, but there is no rigid rule of law that mandates a holding either way. The answer in any particular case must depend on a factual assessment."
". . . There is no absolute requirement that the flow of commerce be continuous if there is the clear intention to resume after a brief pause."
Id. at 299-300. After reviewing the record, the court concluded that the sugar was part of a "continuing, though interrupted, shipment in commerce." Id. at 300. Garber and Denucci seize on the statement in Maddox that the flow of commerce may be interrupted so long as there is the intention to resume the journey after a brief pause. The linchpin of their argument is that 28 days cannot be considered a brief pause. Our reading of Maddox does not lead to such an inelastic definition of "brief pause." First, we point out that Maddox is silent as to the length of time the sugar had been in the warehouse at the time of the theft. Second, we note the Maddox court's remonstration that there are no rigid rules in determining whether goods have come to rest, and that ad hoc decisions must be made based on the particular facts of each case. In light of these considerations, we conclude that the 28 days the copper cathodes were in Philadelphia before the time of the theft did not in themselves deprive the shipment of its foreign character.*fn7
Furthermore, in a slightly different context courts have often ruled that a substantial delay in one state does not necessarily cause an item to lose its interstate character. For example, to support a conviction under 18 U.S.C. § 2313 (1976), which outlaws the sale or receipt of stolen vehicles, the Government must show that at the time of the crime the vehicle in question was moving in the "stream of interstate or foreign commerce" and had not yet come to rest within a state. United States v. Hiscott, 586 F.2d 1271, 1274 (8th Cir. 1978). In United States v. Baker, 452 F.2d 21 (5th Cir. 1971), cert. denied, 405 U.S. 974, 92 S. Ct. 1195, 31 L. Ed. 2d 248 (1972), a truck was stolen and transported across state lines to its destination state. It remained there for three months and was used personally during that time by a dealer in stolen goods. He "revealed no intention of keeping it," however, and sold it to Baker. Id. at 24. The court upheld Baker's conviction under § 2313, stating:
"Admittedly, (the dealer) had the vehicle in his possession for three months. Time, however, is not conclusive but rather one of the facts to be considered in determining whether a vehicle is in interstate commerce. We cannot say, as a matter of law, that the vehicle in this case lost its interstate character."
Id. Similarly, in United States v. Tobin, 576 F.2d 687 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S. Ct. 731, 58 L. Ed. 2d 711 (1978), the defendants attacked as invalid their convictions under 18 U.S.C. § 2315 (1976) for receiving and selling stolen property which was moving in interstate or foreign commerce by emphasizing that two years had elapsed since the stolen items had crossed state lines and entered the destination state. They argued that this definitively proved that the stolen items had come to rest and thus had lost their interstate character. The court ruled that simply because goods reach the state where they are intended to be sold does not deprive the goods of their interstate character. Id. at 692. Rather, so long as the transfer of goods can be considered a continuation of the movement that began outside the state, the interstate commerce jurisdictional requirement is fulfilled. Id. Additionally, long delays do not necessitate a finding that items left ...