112 F.2d 635 (4th Cir. 1940)
In 1940, the United States Court of Appeals for the Fourth Circuit heard an appeal from a conviction and sentence of Max Backun under an indictment charging him and one Zucker with transporting stolen merchandise of a value in excess of $5,000 in interstate commerce, knowing it to have been stolen, in violation of the National Stolen Property Act.1
Zucker pleaded guilty and testified for the prosecution after being apprehended at a pawnshop in Charlotte, North Carolina, in possession of a large quantity of silverware, a portion of which was shown to have been stolen a short while before.2 He testified that he purchased all of the silverware from Backun in New York, partly on credit, that Backun had the silverware concealed in a closet and in the cellar of his residence, that there was no sale for second-hand silverware in New York but a good market for it in the South, that Backun knew of Zucker’s custom to travel in the South, and that Backun sold to him for $1,400 silverware shown by other witnesses to be of much greater value, with a part wrapped in a laundry bag identified by means of a laundry ticket as having been in the possession of Backun.3
As bearing upon Backun’s knowledge that the stolen silverware was to be transported by Zucker in interstate commerce, Zucker testified that Backun knows he goes on the road, that he told Backun he wanted to go on the road with it, and that Backun knew that and that was the reason he wanted to sell it to him.4 Not all of the property found in possession of Zucker and acquired by him from Backun was shown to be stolen property, which was established only as to such part as was identified by the witnesses Jeffries, McCracken, McPherson, Shelhorse, Coleman, and Kibler, who fixed the value of the property they identified at considerably less than $5,000.5
The witness Littlejohn valued the entire lot of silver in possession of Zucker at $10,000 and a portion identified by persons in Charlotte at $6,000 or $7,000, but there was no evidence to show that any part of the silver was stolen except that identified by the witnesses on the trial, and there was evidence that a Mrs. Dewar and a Mrs. Ragland, who did not testify at the trial, came to Charlotte and identified silver the value of which was not shown.6 The case reached the Fourth Circuit after Backun’s conviction in the trial court, where he raised contentions including lack of evidence connecting him to the transportation, insufficient proof of the statutory value, and improper admission of the laundry ticket.7
Whether there was evidence that Backun had anything to do with the transportation in interstate commerce?8
One who aids, abets, counsels, commands, induces, or procures the commission of an offense is guilty as a principal under 18 U.S.C.A. § 550.9 Guilt as an accessory depends on aiding and assisting the perpetrators. A seller who knows the purchaser intends to use the goods in the commission of a felony and whose will assents to the commission by making the sale is guilty of aiding and abetting.10
Yes. The established facts demonstrate that Backun sold the stolen silverware to Zucker knowing Zucker intended to transport it in interstate commerce to the South.11
Zucker testified that he told Backun he wanted to go on the road with it and that Backun knew that and that was the reason he wanted to sell it to him. Backun concealed the silverware and sold it at a grossly inadequate price partly on credit precisely because there was no market in New York but a good market in the South where Zucker traveled.12
By making the sale under these circumstances Backun caused the transportation in interstate commerce just as certainly as if that transportation had been a term of the contract of sale.13
There was sufficient evidence that Backun aided the transportation in interstate commerce.14
Related opinions on this issue
Circuit Judge Soper concurred in the result reached by the majority opinion on the transportation issue.15 Although Soper authored no separate opinion, his concurrence in the overall result indicates agreement that the evidence was sufficient to show Backun knowingly facilitated the interstate movement of stolen goods by selling them to Zucker under circumstances where transportation to southern markets was the clear purpose of the transaction.16 This alignment with the majority reinforces that criminal liability extends to sellers who actively enable known violations of the National Stolen Property Act through sales made with full awareness of the buyer’s interstate plans.17
Whether there was sufficient evidence that the property shown to have been stolen was of a value of $5,000 or more?18
To sustain a conviction under the National Stolen Property Act there must be substantial evidence that the stolen property transported in interstate commerce was of a value of $5,000 or more.19
No. The established facts show that only the portion identified by the witnesses Jeffries, McCracken, McPherson, Shelhorse, Coleman and Kibler was proven stolen and those owners fixed its value at considerably less than $5,000.20
Littlejohn valued the entire lot at $10,000 and a Charlotte portion at $6,000 or $7,000 but lacked sufficient knowledge of silverware values and provided no evidence that the additional silver identified by Mrs. Dewar and Mrs. Ragland was stolen.21
There was not sufficient evidence that the stolen property was of a value of $5,000 or more.22
Related opinions on this issue
Circuit Judge Soper concurred in the result that the conviction must be reversed.23 Although he provided no separate opinion or additional reasoning, Soper’s agreement with reversal reflects acceptance of the majority’s determination that the prosecution failed to prove the stolen silverware met the statutory value threshold of $5,000.24 His concurrence highlights the strict evidentiary requirement under the National Stolen Property Act and supports remanding the case for retrial or state proceedings where the value element cannot be established from the existing record.25
Whether the laundry ticket identifying the laundry bag in which the silverware was wrapped was improperly admitted in evidence?26
A laundry ticket issued in the ordinary course of business that bears a number corresponding to that on the bag is admissible. It falls within the principles under which exceptions to the hearsay rule are admitted, namely necessity and circumstantial guaranty of trustworthiness.27
No. The established facts establish that the laundry ticket was issued in the ordinary course of business. It bore a number corresponding to that on the bag. Under the laundry's method of business, this indicated that the bag was delivered to Backun. This supplied a circumstance of probative value for the jury.28
The laundry ticket was not improperly admitted in evidence.29