Opinion
CR. 09-30010-CBK, 2009 DSD 3.
March 17, 2009
ATTORNEYS: Mikal G. Hanson, Assistant United States Attorney, Pierre SD, Attorney for Plaintiff.
Edward G. Albright, Assistant Federal Public Defender, Pierre SD, Attorney for Defendant.
REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION TO DISMISS COUNT I OF THE INDICTMENT
Defendant, Robert Schiradelly ("Schiradelly"), has filed a Motion to Dismiss Count I of the Indictment and Memorandum in support thereof. Plaintiff, United States of America ("Government"), has filed a Response to Schiradelly's Motion. Because the dismissal Motion is a dispositive one, the Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.
I.
Schiradelly is charged with one count of larceny and two counts of assaulting, resisting or impeding a federal officer. Count I alleges that on or about July 20, 2008, at Eagle Butte, South Dakota, in Indian country, Schiradelly unlawfully took and carried away, with the intent to steal and purloin, a 2004 Pontiac Grand Am vehicle belonging to Billion Automotive, of a value of more than $1,000, in violation of 18 U.S.C. §§ 1153 and 661.
According to investigative reports, Schiradelly was arrested after allegedly driving a 2004 Grand Am, with dealer plates on it, at a high rate of speed on the Cheyenne River Sioux Indian Reservation, while being pursued by tribal law enforcement officers. The pursuit began on the Reservation after a convenience store clerk called tribal police and reported that a red Grand Am had driven off without paying for gasoline. Schiradelly is accused of using the Grand Am to forcibly assault, resist, oppose, impede, intimidate and interfere with Merrill Bruguier and Robert Woods, two tribal officers, contrary to 18 U.S.C. § 111 (Counts II and III of the Indictment). The vehicle is alleged to have been stolen from Billion Automotive, a car dealership, in Sioux Falls, South Dakota, and thereafter driven to the Reservation.
II.
Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides for consideration, prior to trial, of "any defense, objection, or request that the court can determine without a trial of the general issue." Under subsection (b)(3)(B) of the Rule, "the court may hear a claim that the indictment . . . fails to invoke the court's jurisdiction or to state an offense."
To withstand a motion to dismiss, an indictment must allege that the defendant committed acts which, if proven, would constitute a violation of the law under which he has been charged. United States v. Polychron, 841 F.2d 833, 834 (8th Cir.), cert. denied, 488 U.S. 851 (1988). If the acts alleged in the indictment do not constitute a criminal offense then the indictment should be dismissed. Id.
"An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Sampson, 371 U.S. 75, 78-79 (1962). A court should refrain from considering evidence outside the indictment when passing on the indictment's legal sufficiency. United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006); see also United States v. Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005) ("there is no federal criminal procedural mechanism that resembles a motion for summaryjudgment in the civil context"). In "limited circumstances" however, the court may dismiss a charge at the pretrial stage where the operative facts are undisputed and the government fails to object to consideration of such facts in making the determination regarding a submissible case. United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994). Pretrial dismissal based on undisputed facts is a determination that "as a matter of law, the government is incapable of proving its case beyond a reasonable doubt and is the rare exception," not the rule. Id. Dismissal under this exception is not made on the basis of a lack of evidence to support the government's case, but because undisputed evidence shows that, as a matter of law, the defendant could not have committed the offense for which he was indicted. Todd, 446 F.3d at 1068.
For the reasons discussed below, Count I of the Indictment is not insufficient as a matter of law and is therefore not subject to outright dismissal prior to trial.
III.
Count I of the Indictment alleges that Schiradelly took and carried away the Grand Am "at Eagle Butte, in Indian country, in the District of South Dakota" in violation of §§ 1153 and 661. Because the vehicle was allegedly taken from a location (Sioux Falls) that is not within Indian country or within the special maritime and territorial jurisdiction of the United States, and because he was not pursued the approximately 300 miles from this location to Eagle Butte, Schiradelly claims that the larceny offense charged in Count I cannot stand and must be dismissed. Specifically, he alleges that he cannot be charged or convicted of larceny in federal court because the alleged offense was committed outside of Eagle Butte and Indian country and that as such, only the State of South Dakota has jurisdiction over the same. He thus maintains that if the larceny did occur, it can only be charged in Minnehaha County State Circuit Court. The Court disagrees.
IV.
The Major Crimes Act, § 1153, gives federal courts jurisdiction over certain crimes committed by Indians in Indian country. In relevant part, § 1153 provides:
(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely . . . a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.
Section 661 states in material part:
Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows:
If the property taken is of a value exceeding $1,000 or is taken from the person of another, by a fine under this title, or imprisonment for not more than five years, or both; in all other cases, by a fine under this title or by imprisonment not more than one year, or both.
Section 661 is based upon Title 18, U.S.C. 1940 ed., § 466 (March 4, 1999, ch. 321, § 281, 35 Stat. 1144) ("§ 466") with some minor changes. The legislative history of § 466 demonstrates a clear intention, on the part of Congress, to enact a statute to address the crime of larceny. See 43 Cong. Rec. 1191 (1908); see also United States v. Armata, 193 F. Supp. 624 (D. Mass. 1961) (discussing the history of § 661).
See Revisor's Notes to Section 661, as contained in New Title 18, United States Code, Crimes and Criminal Procedure with Official Legislative History and Revisory Notes (West 1948) at 2515.
Senator Heyburn's comments about § 466 (which is referred to as "§ 284") are instructive:
MR. HEYBURN. *** This section conforms to the law of the large majority of the States in dividing larceny into two classes and grading the punishment accordingly. The amendments, I think, are self-explanatory.
I do not know that any further explanation could be made. It is a section which deals with existing law. It is based upon an existing statute which provides for the punishment of some offenses, except that it makes no distinction between the very grave offense and a more moderate form of the offense.
Courts have uniformly held that § 661 defines the federal crime of larceny contained in § 1153 and that the crime is not limited to its common law definition. See e.g., United States v. Gristeau, 611 F.2d 181, 183 (7th Cir. 1979), cert. denied, 447 U.S. 907 (1980); United States v. Maloney, 607 F.2d 222, 226-29 (9th Cir. 1979), cert. denied, 445 U.S. 918 (1980); Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974); see also United States v. Gilbert, 378 F. Supp. 82, 90 (D.S.D. 1974) ("Title 18, U.S.C. § 661 specifically defines the federal version of larceny, and there is no reason to substitute a common law definition even assuming that the common law definition may be slightly different."). No court appears to have taken a contrary view. There can be no doubt then that § 661 encompasses larceny for purposes of § 1153 jurisdiction.
V. A.
Having established that § 661 defines and punishes the federal crime of larceny as set forth in § 1153, the Court may now focus on the principal issue before it, namely, whether a federal court in South Dakota has jurisdiction over the larceny offense charged in Count I of the Indictment. Although the offense is alleged to have occurred in Eagle Butte on the Cheyenne River Reservation, the evidence of record shows that the vehicle Schiradelly gained possession of and drove within Indian country had been stolen from a lot in Sioux Falls.B.
The Government asserts that larceny, by its nature, is a continuous offense that is deemed to occur anew each time a thief transports his stolen property into a different jurisdiction. See Annotation, Person Who Steals Property in One State or Country and Brings It into Another is Subject to Prosecution for Larceny in Latter, 156 A.L.R. 862 (1945 2008 Supp.); 50 Am. Jur.2d Larceny §§ 106-08 (2008); 3 C. Torcia, Wharton's Criminal Law, § 370 (15th ed. 2008). This theory is based on the view that the unlawful possession of the thief in the jurisdiction into which the stolen property is brought constitutes a new caption and asportation — a new deprivation of the owner of his right to his property and its possession and is punishable in that jurisdiction as a new offense. 156 A.L.R. at 866.
The number of federal decisions that discuss this theory, or any aspect thereof, are few and far between. Those that do have generally recognized the theory to be a valid legal principle.
Early on, federal courts adopted and applied the "continuing larceny" theory based on the notion that the original act of larceny was against one sovereign jurisdiction and the asportation of the stolen item into another jurisdiction constituted a new offense against the latter jurisdiction. See United States v. Tolson, 28 F.Cas. 200 (C.C.D.C. 1803); United States v. Haukey, 26 F.Cas. 227 (C.C.D.C. 1812); United States v. Mason, 26 F.Cas. 1196 (C.C.D.C. 1823).
Nearly a century ago, the Eighth Circuit Court of Appeals upheld a jury instruction, the defendant took exception to, which read in pertinent part as follows:
Larceny and embezzlement are continuing crimes. If a man steals or embezzles in one county or in one district, and carries the property into another county or another district, with the intention in the last-mentioned county or district to retain the stolen property or embezzled funds, then he may be tried in either county or district.Perara v. United States, 221 F. 213, 216 (8th Cir. 1915). In doing so, the appeals court emphasized that the crime of simple larceny "is ambulatory in its nature, and may be treated as committed or repeated in any jurisdiction into which the thief carries the stolen article." 221 F. at 217; accord Morris v. United States, 229 F. 516, 521-22 (8th Cir. 1916).
Later, another federal appeals court had this to say:
The crime of larceny obviously continues as long as the asportation continues and the original asportation continues at least so long as the perpetrator of the crime indicates by his actions that he is dissatisfied with the location of the stolen goods immediately after the crime and with no more than a few minutes delay causes another to continue the asportation.United States v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir. 1972). InBarlow, the defendant's conviction was based on the assistance he provided to the actual thief in the transportation of the stolen property. 470 F.2d at 51-54.
In a case involving a vehicle larceny, the District of Columbia Court of Appeals cited to and relied on Barlow in evaluating the defendant's intent. See Fogle v. United States, 336 A.2d 833, 834-35 (D.C. 1975). In upholding the conviction, the court inFogle reasoned that the asportation aspect of the larceny offense continued until the defendant had disposed of the stolen vehicle at the car shredder. Id.
To date, the United States Supreme Court has not specifically weighed in on the jurisdictional ramifications of the continuing larceny theory. It is somewhat significant, however, that the Supreme Court declined to review an Iowa Supreme Court decision that sanctioned the application of this theory in an interstate truck larceny case. See Newlon v. Bennett, 253 Iowa 555, 112 N.W.2d 884, cert denied, 369 U.S. 658 (1962). That case involved a conviction in Iowa for a vehicle that was stolen in Nebraska and driven across state lines into Iowa. In responding to the defendant's contention that he could not be prosecuted in Iowa for stealing a truck in Nebraska and that Iowa had no jurisdiction over such a crime, the Iowa Supreme Court observed that the defendant "was convicted not for what he did in Nebraska, but because his act in bringing the stolen truck into Pottawattamie County [Iowa] amounted to larceny in that county." 253 Iowa at 557, 112 N.W.2d at 885; see also Younie v. Maine, 281 A.2d 446, 447, 452 (Me. 1971) (the petitioner was properly convicted of larceny in Maine after he was found to have been riding around in an automobile that had been stolen earlier in Connecticut because he perpetrated a taking and asportation, with larcenous intent, in Maine); Lovelace v. Comm., 205 Va., 541, 545, 138 S.E.2d 253, 256 (1964) (the bringing of an automobile stolen from another state into Virginia "constitutes a new caption and asportation" and thus a new offense).
Courts in other states have overwhelmingly subscribed to the view that a larceny continues as long as the asportation of the property itself continues and/or the view that where property is taken in one jurisdiction and carried into another, a court in the latter would have the authority to treat such conduct as a form of larceny and preside over a trial charging the same. See 3 Wharton's Criminal Law, § 370, nn. 99, 1, 2; see also 156 A.L.R. 862, et. seq.; 50 Am.Jur.2d Larceny §§ 106-08.
In 1912, the Supreme Court of New Mexico held that the state district court had jurisdiction in a larceny case even though the original taking occurred within an Indian reservation, where cattle were driven off the reservation, because the felonious intent continued. Territory v. Harrington, 17 N.M. 62, 66, 121 P. 613, 615 (1912). The rationale in Harrington was subsequently reaffirmed by the New Mexico Court of Appeals in a case where the court was faced with the question of whether a person who steals property in Texas and brings it into New Mexico may be prosecuted, convicted and punished for larceny in New Mexico. See State v. Stephens, 110 N.M. 525, 527, 797 P.2d 314, 316 (N.M.App. 1990). In reinstating the dismissal of the larceny charge, the Stephens court pointed out that a person who takes stolen property from one jurisdiction to another is guilty of a new caption and aspiration in the latter jurisdiction. 110 N.M. at 527, 797 P.2d at 316. The court accordingly determined that New Mexico was not enforcing the penal laws of Texas, but rather enforcing its own laws for a crime committed within its jurisdiction. Id.
The crime of larceny under § 661 requires the wrongful taking and carrying away (asportation), with the intent to steal and purloin, the personal property of another. Barlow, 470 F.2d at 1251. The "taking" or "caption" element of the crime is satisfied as long as the original asportation continues. Id. at 1253.
C.
Here, whether based on a "continuing larceny" theory or one predicated on the factual continuation of the original asportation element of the larceny offense into Indian country, Schiradelly's Motion to Dismiss, for lack of jurisdiction, must be denied. He either committed a new crime of larceny at the time he took control of the Grand Am and tried to escape from law enforcement officers in it around Eagle Butte and on the Cheyenne River Reservation, or believed that further asportation was necessary in order to maintain possession of the vehicle and protect himself, in which case the crime was still progressing and had not been completed. Both of these rationales provide an adequate and independent ground for charging Schiradelly with larceny and trying him for it in federal court.
The policy considerations that have motivated courts to assume jurisdiction when the original larceny offense was committed in another jurisdiction are, at least equally applicable in the Indian country setting. Indeed, the easy and rapid mobility between locations on and off Indian reservations within South Dakota is a strong consideration. So too is the fact that Indian tribes, the federal government and the State each has a jurisdictional interest in minimizing the number of larcenies within their respective territories for the sake of protecting their own citizens and to reduce law enforcement expenses inherent in the trafficking of stolen property and in particular, automobiles. And, when the purloined vehicle is used as a "deadly and dangerous weapon" to "forcibly assault, resist, impose, impede, intimidate and interfere" with two tribal law enforcement officers, the utility of and need for a federal court to exercise jurisdiction is even more acute.
The Court is mindful that prosecution and conviction of Schiradelly in federal court for larceny would not bar a later charge against him in Minnehaha County State Court for the same offense. Schiradelly, however, has not been so charged and therefore, there is no double jeopardy issue or concern that is ripe now for adjudication.
VI.
Because there is jurisdiction to try him for a larceny offense that continued on into Indian country, Schiradelly cannot prevail on his Motion to Dismiss. This being the case, it is accordingly
RECOMMENDED that the Motion to Dismiss Count I of the Indictment, found at Docket No. 15, be denied in all respects.