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United States v. Lewis

decided: June 29, 1966.

UNITED STATES OF AMERICA, APPELLEE,
v.
RUDOLPH LEWIS, APPELLANT



Moore, Smith and Kaufman, Circuit Judges.

Author: Kaufman

KAUFMAN, Circuit Judge:

Challenging principally the regularity of his arrest and the propriety of the court's charge, Rudolph Lewis appeals from a felony conviction*fn1 for violating 18 U.S.C. § 659 (possession of goods stolen from interstate commerce) after a trial in the Southern District before Chief Judge Taylor and a jury.*fn2 Lewis was charged with unlawful possession of a carton containing twenty-nine women's dresses being shipped by Lerner Shops in Atlanta, Georgia to the manufacturer of the garments, Gro-Young, New York, N.Y.via REA Express Company (REA). For the reasons set forth below, we affirm.

I.

The evidence, briefly set forth, reveals that Lewis was apprehended in the following manner. In the early morning hours (approximately 1:15 A.M.) of August 22, 1965, one William Sadler, a tractor driver employed by REA, had exited from the REA terminal located at 42d Street and 11th Avenue in Manhattan and stopped for a traffic light close by. At that time, Sadler observed a man, later identified as Lewis, walking directly in front of his tractor carrying a brown carton which looked like it came from REA. After the light changed, Sadler sought out the police and reported his observation to New York City Patrolmen Murphy and Connor who were in the vicinity. He proceeded with them in their radio car to locate the individual he had just observed.

When stopped by the police and queried on the street, Lewis explained that he had found the carton a short distance away under an overhang between 10th and 11th Avenues on 41st Street. He stated that he had inquired of an old woman standing next to the carton, whether it belonged to her and upon her negative reply, he decided to take it. In response to inquiries concerning Lewis' presence in the vicinity of the terminal, Lewis claimed that he was employed by the Circle Line at 42d Street and 12th Avenue as a deck swabber, and had just finished his work for the night. When the police, however, indicated that they intended to verify this statement, Lewis admitted that he did not work for the Circle Line.

During these few moments of street inquiry, Lewis placed the carton on the hood of a parked car. Murphy then was able to observe that the package had been opened and the seals and labels removed. In addition, he noticed an imprinted stamp bearing the words "REA" and "Atlanta, Georgia." Sadler, at the policeman's request, examined the package and confirmed that REA utilized such a stamp for the purpose of indicating the source of shipments. Lewis was then taken into custody and ultimately turned over to the Federal Bureau of Investigation.

Based on this factual setting, Lewis contends that the police lacked the "reasonable suspicion" required by New York's "Stop-and-Frisk" law, New York Code of Criminal Procedure, Section 180-a,*fn3 as a prerequisite for detaining him.*fn4 It is urged that since Sadler did not actually see Lewis appropriate the carton, he was unable to impart sufficient information to the officers to create a "reasonable suspicion" in their minds. We find this contention unpersuasive. Sadler identified himself to the policemen as a REA employee and expressed a willingness to accompany them during their effort to locate the individual he had seen carrying the suspected carton. As competent police officers, they were justified in concluding that Sadler was not making a complaint wholly devoid of merit. Moreover, the evidence disclosed that Patrolmen Murphy and Connor were veteran policemen seasoned in the neighborhood and familiar with the frequency of similar criminal occurrences. And, Murphy testified that on some days he investigated as many as 10 to 12 thefts from businesses in the area; on two prior occasions his investigations specifically concerned thefts from REA. It also appeared that Lewis was stopped on this rainy Sunday morning between the hours of 1 and 2 A.M. -- a time when most businesses in the area were closed and the likelihood of a legitimate purchase minimal. Furthermore, in light of Sadler's identification of Lewis as the same man he had seen moments before near the REA terminal, we believe that all the circumstances justified experienced and neighborhood-wise police in reasonably suspecting that Lewis had improperly taken possession of the package. A fortiori, the brief questioning on the street was entirely proper; indeed, any other course would have shown poor judgment and a callousness towards proper police action. See People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964); People v. Hoffman, 24 A.D.2d 497, 261 N.Y.S.2d 651 (2d Dept. 1965).

Of course, once Lewis equivocated in explaining his presence in the area and the police officers observed the imprinted stamps "REA" and "Atlanta, Georgia" and that the seals and labels already referred to were missing from the package, their "reasonable suspicions" properly rose to the level of "probable cause" justifying Lewis' arrest and the incidental search of the carton. See, e.g., United States v. Wai Lau, 329 F.2d 310 (2d Cir.), cert. denied, 379 U.S. 856, 85 S. Ct. 108, 13 L. Ed. 2d 59 (1964); United States v. Moon, 351 F.2d 464 (2d Cir. 1965); United States ex rel. Mason v. Murphy, 351 F.2d 610 (2d Cir. 1965); United States v. Thompson, 356 F.2d 216 (2d Cir. 1965).

II.

Lewis claims, in addition, that the trial judge erred in his instruction to the jury on the method to be employed in calculating the value of the misappropriated dresses. The issue is of some importance and not one of mere mathematical significance because it is argued that if the jury could determine the dresses had a value of less than $100, Lewis might have been found guilty of a misdemeanor only, for which the maximum jail sentence pursuant to Section 659 was 12 months.*fn5

The evidence on this issue may be summarized as follows: The cost for Gro-Young to manufacture a dress was $4.25 and the selling price to Lerner Shops, the retailer, was $5.25. Thus, the 29 misappropriated dresses cost $123.25 to manufacture and sold at wholesale for $152.25. The dresses never sold for less than their wholesale price except, perhaps, in August when the season for this apparel had ended. In this case, however, the dresses were being returned by Lerner Shops to Gro-Young for credit at the rate of $5.25 each; and, while none of the 29 misappropriated dresses had been inspected by Gro-Young, its production manager, Louis Deneroff, did examine a companion parcel shipped at the same time by Lerner's and found that not a single dress was defective in any way.

The jury was instructed by the district judge that value was "face [par], or market value, or cost price, either wholesale or retail, whichever is greater." In so charging, the judge employed the definition of "value" appearing in 18 U.S.C. § 641 (theft of government property), there being no exposition of the meaning of the term as utilized in 18 U.S.C. § 659, under which Lewis was prosecuted.

Despite his failure to object to this instruction, Lewis contends that Judge Taylor committed plain error by not charging in the language of 18 U.S.C. § 2311 (transportation or sale of stolen vehicles, securities, cattle, etc.) that "value" is "face, par, or market value, whichever is the greatest." The thrust of Lewis' argument is that the Section 641 definition of value was improperly transplanted into Section 659 by Judge Taylor's charge. The Section 641 provision, it is urged, was designed to protect government-owned property which might not have a readily ascertainable market value and hence might be reasonably appraised in terms of cost. In contrast, it is Lewis' claim that Sections 659 and 2311 deal ...


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