The opinion of the court was delivered by: LASKER
The defendant moves: (1) pursuant to Federal Rule of Criminal Procedure 12(b), to dismiss the indictment for failure to charge offenses; (2) pursuant to Federal Rule of Criminal Procedure 21(b), to transfer the proceedings to the United States District Court for the Southern District of Georgia (Savannah Division); and (3) pursuant to Federal Rule of Criminal Procedure 7(d), to strike as surplusage certain language of the indictment. For the reasons discussed below, the motion to dismiss the indictment is denied, the motion to transfer is granted, and the determination of the motion to strike alleged surplusage in the indictment is deferred for decision by the transferee court.
The indictment contains seven counts. Counts 1 through 6 allege violation of 18 U.S.C. § 2314 and charge in substance that defendant unlawfully transported from Atlanta to New York alligators that were "poached and otherwise converted in violation of State and local law" "knowing the same to have been stolen, converted or taken by fraud. . . ." Count 7 alleges violation of 18 U.S.C. §§ 43(a)(2) and 43(f), charging that defendant unlawfully caused alligator skins to be transported and knowingly and wilfully sold them in interstate commerce in violation of the laws and regulations of the State of Georgia.
Defendant contends that the acts described in Counts 1 through 6 do not constitute a violation of § 2314, arguing that "poaching" is not "stealing," "converting" or "taking by fraud" within the meaning of the statute. As a secondary defense he claims that if the acts charged state an offense under § 2314, then § 2314 does not afford due process because its language does not give fair warning that the conduct described is governed by its terms.
Admitting for the purpose of the argument that defendant did not originally have title to the skins, defendant claims that reducing them to possession cannot constitute "stealing, converting or taking by fraud," or, indeed, larceny of any kind, but, at most, trespass. He analogizes the charges here to the killing of a wild animal in other than open hunting season, for which the penalty may be prosecution, for example, for violation of a fish and game law but not for larcenous conduct. He cites the rule of Geer v. Connecticut, 161 U.S. 519, 529, 16 S. Ct. 600, 604, 40 L. Ed. 793 (1896), that
". . . the ownership of wild animals, so far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common."
and argues that Geer establishes that no one can own animals and accordingly their taking cannot violate a statute which prohibits interstate shipment of goods "stolen, converted or taken by fraud."
Defendant's narrow construction of the statute has no merit. The decisions are numerous that the words "stolen" and "converted" cover a broad range of wrongful acts. As the Court of Appeals of this Circuit has said (quoting Crabb v. Zerbst, 99 F.2d 562, 565 (5th Cir. 1938)):
"Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights, and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin." United States v. Handler, 142 F.2d 351 at 353 (2d Cir. 1944).
See also United States v. Turley, 352 U.S. 407, 411, 77 S. Ct. 397, 399, 1 L. Ed. 2d 430 (1957), in which the Court, construing the Motor Vehicle Theft Act (18 U.S.C. § 2312), stated: "'Stolen' has no accepted common-law meaning." As to the word "converting" see Morissette v. United States, 342 U.S. 246, 272, 72 S. Ct. 240, 96 L. Ed. 288 (1952).
Furthermore, even if it were true, as defendant contends, that the sovereign in the states of interest here does not "own" game and wild animals, a defendant possessing such animals might still be guilty of stealing, since the act of stealing is as much defined by the taker's intent to keep property to which he has no right as it is by esoteric questions of legal title in others. But it is unnecessary to rest on such semantic analysis, for it is clear that the states in question here do own wild life and game within the meaning of § 2314. The Geer rule, which is still the federal law, far from holding that the state does not own wild animals, clearly specifies that it does, "not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common." Thus Geer regards a state's relationship to wild animals as an owner in trust, and taking from an owner in trust constitutes stealing or converting within the meaning of § 2314 just as much as taking from any other owner.
Nor is there merit to the defendant's argument that the statute does not provide the warning, required by due process, that his conduct was proscribed. Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 331, 96 L. Ed. 367 (1951), does not hold to the contrary. Indeed, that opinion itself states in part that the language of a statute is not constitutionally required to provide "more than a reasonable degree of certainty" as to the acts prohibited, and adds: "Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Furthermore, if, as we have found above, the acts charged in the indictment do constitute "stealing" and "converting" within the meaning of the statute, then, as a matter of definition, the defendant was adequately warned by the wording of the statute.
Defendant claims that Count 7, alleging a violation of § 43, states no offense because, as he argues, the violation referred to in § 43 must be of a criminally sanctioned state law or regulation, and Rule 260-2-.60 of the Georgia Game and Fish Commission, which the ...