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June 20, 1973



Author: Rosenn

Before SEITZ, Chief Judge, VAN DUSEN and GIBBONS, Circuit Judges



ROSENN, Circuit Judge.

This appeal of a conviction for aiding and abetting the theft of a shipment in interstate commerce presents the challenging question of whether a defendant who engineered the theft can be found guilty when his co-defendant, charged with being the crime's principal, is acquitted because he may have been an innocent dupe. Two related questions are involved: (1) was any crime committed when the proof failed to demonstrate that the charged principal had felonious intent; and (2) was there an unconstitutional constructive amendment of the indictment if the evidence is viewed as proving that the defendant charged with aiding and abetting was in fact the principal? We hold that a crime was committed, and that appellant Bryan was proven guilty as charged. The judgment of the district court will, therefore, be affirmed.


Appellant Bryan and co-defendant, Echols, were tried in a non-jury trial in the Eastern District of Pennsylvania on a two count indictment. The first count charged that Echols stole 950 cases of scotch whiskey from Pier 80 in South Philadelphia, in violation of 18 U.S.C. § 659. The second count, which incorporated by reference the allegations of the first count, charged that Bryan aided and abetted Echols in committing the offense alleged in the first count, in violation of 18 U.S.C. § 2 and § 659. The district court found Echols not guilty on Count I because it had "... considerable difficulty in concluding beyond a reasonabey doubt that defendant Echols had the required criminal intent." The court, however, had no such difficulty in finding Bryan guilty on the second count.

Bryan was a terminal manager of Fowler and Williams Freight Lines. U.S. Lines had carried the scotch whiskey, consigned to the Pennsylvania Liquor Control Board, from Glasgow to Philadelphia. An authorization to pick up the whiskey, together with a copy of the bill of lading, was sent by that consignee to Fowler and Williams. These documents were placed on Bryan's desk. Later Echols appeared at the U.S. Lines pier with these documents, driving a stolen tractor equipped with fake decals and disguised as one belonging to Fowler and Williams. U.S. Lines became suspicious of a possible hijack and called the Fowler and Williams dispatcher to verify if he had sent someone to pick up the shipment of whiskey. When informed that the dispatcher knew nothing about the shipment, U.S. Lines informed the police and the F.B.I. On instruction of an F.B.I. agent, the whiskey was released to Echols, who drove to a diner, where he waited for an hour. Echols made two telephone calls, waited for a further period, and eventually returned the tractor and the whiskey-laden trailer to the U.S. Lines pier.

A polaroid photograph of a Fowler and Williams tractor, on the back of which was printing which described the color scheme of a genuine Fowler and Williams tractor, was found inside the cab of the stolen tractor. The printing was identified as Bryan's. He admitted to the F.B.I. that he had taken the photograph.

Bryan did not testify. Echols, however, took the stand and testified that an unidentified man telephoned him and told him to come to Philadelphia for a truck driving job. He went to the headquarters of Teamsters Local 107. Outside that headquarters an unidentified man asked him to drive a tractor and trailer in substitution for one James Morris and to use Morris' name when picking up the load. He was taken to the stolen tractor, given the papers, directed to Pier 80, and told to take the trailer to a designated diner where someone would meet him. He went to Pier 80, picked up the trailer and drove to the diner. When no one met him there, he returned to Pier 80 where he was arrested. He could identify none of the persons who spoke to him or gave him instructions.

The district court could not find beyond a reasonable doubt that Echols, when removing the liquor, was anything more than an innocent dupe. It concluded, however, that the whiskey had in fact been stolen, and that Bryan, by supplying the Pennsylvania Liquor Control Board authorization, the copy of the bill of lading, and the photograph of a genuine Fowler and Williams tractor, was guilty of aiding and abetting the theft as charged in Count II.

In his original brief on appeal, Bryan, although not taking issue with any factual findings of the district court, contended that the conviction was legally erroneous in three respects: (1) there was no unlawful taking of the goods as they were voluntarily turned over to Echols; (2) no theft was committed because Echols never exercised dominion over the goods with a criminal intent; and (3) Bryan could not be found guilty of aiding and abetting when Echols, the charged principal, was acquitted. After consideration by a panel, the appeal was submitted for reconsideration en banc. Further briefing was requested on the question:

Since Echols was not found guilty, is the district court judgment of conviction on Count 2 against Bryan so inconsistent with the terms of the indictment as to contravene the Fifth Amendment requirement of indictment by grand jury?

In answer to this question, appellant argued that he was convicted of a crime for which he was not indicted, that crime being participation in the theft as the principal.


We first consider appellant's contention that no crime was committed because U.S. Lines consented to Echols' taking of the shipment of scotch whiskey, although it suspected he was not authorized to do so. The crime alleged here is violation of 18 U.S.C. § 659, which provides penalties for, inter alia, "[whoever] embezzles, steals, or unlawfully takes, carries away, or conceals... from any... platform or depot... with intent to convert to his own use any goods... which constitute an interstate... shipment of freight." The crime of stealing under 18 U.S.C. § 659 has been given a broad construction, free from the technical requirements of common law larceny. United States v. DeNormand, 149 F.2d 622, 624 (2d Cir. 1945).*fn1 A trial court instruction that the jury need only find "an unlawful taking of the goods by the defendants," was found sufficient in DeNormand. The consent to the removal of the goods by U.S. Lines personnel in this case does not demonstrate the absence of an unlawful taking. In reviewing the record to determine if there was an unlawful taking, the relevant question involves not the state of mind of personnel of U.S. Lines, but rather the state of mind of defendants.*fn2

We therefore find no difficulty in reconciling our conclusion that a crime was committed here with the statements in United States v. Cohen, 274 Fed. 596, 597 (3d Cir. 1921),

To constitute "stealing" there must be an unlawful taking... with intent to convert to the use of the taker and permanently deprive the owner. and in Vaughn v. United States, 272 Fed. 451, 452 (9th Cir. 1921), that in a ...

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