Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-CR-721 - Nicholas J. Bua, Judge.
Before Tone and Bauer, Circuit Judges, and Morgan, District Judge.*fn*
The four appellants in these consolidated appeals were found guilty of theft from interstate shipments in violation of 18 U.S.C. § 659. The only substantial question presented is whether the articles stolen were "goods or chattels moving as or which are a part of or which constitute an interstate . . . shipment of freight, express, or other property" within the meaning of that statute. We hold that they were and affirm the convictions.
Count 1 of the indictment charged all four defendants with theft of 14 appliances from a loading platform at Spiegel, Inc. at Chicago, Illinois, on July 5, 1977. Count 2 charged defendant Wills with the theft of two appliances from the same platform on the same date. After a bench trial all defendants were found guilty.
There was substantial evidence that the goods in question were stolen by the defendants from the Spiegel's loading platform as charged in the indictment. Except for a contention by Wills that he did not participate in the theft charged in Count 1, the defendants' contentions relate to questions other than whether they stole the goods.
We discussed the interstate commerce requirements of 18 U.S.C. § 659 at some length in United States v. Parent, 484 F.2d 726, 729-731 (7th Cir. 1973), Cert. denied, 415 U.S. 923, 94 S. Ct. 1427, 39 L. Ed. 2d 479 (1974), and we need not repeat what was said there. In that opinion we quoted with approval the following passage from United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970):
The determination of whether a shipment is in interstate commerce at a given time is essentially a practical one, depending upon the relationship between the consignee, consignor, and carrier, the indicia of interstate commerce at the time of the theft occurs, and the preservation of the congressional intent.
We then added that, "No single factor . . . is conclusive in the determination." 484 F.2d at 729.
It is unnecessary that the goods in question leave the shipper's facility or be actually moving in interstate commerce at the time of the theft. United States v. Williams, 545 F.2d 1036, 1039 (6th Cir. 1976); United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973), Cert. denied, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305 (1974); See United States v. Gollin, 176 F.2d 889, 893-894 (3d Cir.), Cert. denied sub nom. Richman v. United States, 338 U.S. 848, 70 S. Ct. 89, 94 L. Ed. 519 (1949). In Williams, the goods were stolen from the shipper's "loading and shipping facilities." United States v. Williams, supra, 545 F.2d at 1039. As explained in Astolas, the language of the statute itself suggests that § 659 reaches such thefts:
The scope of the phrase "moving as or which are a part of or which constitute an interstate or foreign shipment" is plainly to be inferred from the list of places from which theft is proscribed. These places include not only railroad cars and tractor-trailers and other modes of transportation, but any "station, station house, platform or depot * * *." It was intended that a theft from commerce could be committed before the goods were placed on board, and after they are taken off a carrier; it is not required that a shipment be in motion.
487 F.2d at 279; See also United States v. Parent, supra, 484 F.2d at 729-731.
The evidence upon which the interstate commerce issue turns was as follows. Spiegel, a catalog merchant with annual sales of approximately $360,000,000, received and filled three kinds of customer orders: direct mail orders, telephone orders, and catalog store orders. After receiving an order, Spiegel personnel transmitted to a computer the ordered item's catalog number, description, and price, the customer's name, and the destination to which the item was to be shipped. The computer then scheduled the filling and shipment of the order and generated a sales slip and shipping label showing the consignee and his address, the carrier, the date of shipment, and various other data.
The sales slip and shipping label were then delivered by messenger to the area of the warehouse where the ordered item was stored, which, for the goods involved in the instant case, was the upper floors of Spiegel's West Pershing Road facility. At that point an order picker examined the sales slip and shipping label, picked the packaged item from storage, and delivered it to a checker station. Using a computer terminal connected to the central computer, the checker made sure the item picked was the one ordered, weighed it on an electronic scale connected to the computer terminal, and inserted the shipping label into the computer terminal's printer.
The computer calculated a transportation charge and caused it to be printed on the label, which was then affixed to the package containing the ordered item. At the same time the computer billed the customer and credited the account of the common ...