United States v. Martin James Maloney

607 F.2d 222 UNITED STATES of America, Plaintiff-Appellee, v. Martin James MALONEY, Defendant-Appellant. No. 77-3835. United States Court of Appeals, Ninth Circuit. July 18, 1979. Rehearing Denied Nov. 9, 1979. Tom O'Toole, Federal Public Defender, David M. Heller, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant. W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., A. Bates Butler, III, 1st Asst. U. S. Atty., Jon R. Cooper, U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before BARNES and HUG, Circuit Judges, and CURTIS, * District Judge. BARNES, Circuit Judge: 1 Appellant Maloney, a Navajo Indian, was found guilty of violating 18 U.S.C. §§ 1153 and 661 for taking $1,797 from Mrs. McCray, also a Navajo Indian, while on an Indian reservation. The sole issue raised on appeal is whether the district court erred in refusing to instruct the jury that they had to find that the appellant intended to permanently deprive Mrs. McCray of the money before they could find him guilty as charged in the indictment. Three concomitant questions arise from the consideration of that issue…

Appellant Maloney, a Navajo Indian, was found guilty of violating 18 U.S.C. §§ 1153 and 661 for taking $1,797 from Mrs. McCray, also a Navajo Indian, while on an Indian reservation. The sole issue raised on appeal is whether the district court erred in refusing to instruct the jury that they had *224 to find that the appellant intended to permanently deprive Mrs. McCray of the money before they could find him guilty as charged in the indictment. Three concomitant questions arise from the consideration of that issue in the present appeal: (1) whether the offense of larceny is “defined and punished” by federal law as required in 18 U.S.C. § 1153 , (2) whether the term “larceny” as used in 18 U.S.C. § 1153 is limited to its common law definition, and (3) whether the offense of larceny, if defined in the federal statute at issue here ( 18 U.S.C. § 661 ), incorporates the common law elements of the offense so as to necessitate a showing of an intent to permanently deprive the owner of his property.

I. FACTS

On July 9, 1977, Maloney visited Mrs. McCray 1 at her home located within an Indian reservation in Arizona. During the course of the visit while Mrs. McCray was away from the…

dissenting:

The question presented by this appeal is whether it was necessary for the Government to prove that Maloney intended to deprive Mrs. McCray of her property permanently in order to convict him of larceny under 28 U.S.C. § 1153 .

It is clear that the “intent to deprive permanently” is a requisite element of the common law crime of larceny. See Loman v. United States, 243 F.2d 327, 329 (8th Cir. 1957); 50 Am.Jur.2d, Larceny, § 2; 52A C.J.S. Larceny § 1(1). It is also clear that the crime with which Maloney is charged is “larceny” under § 1153. There is no jurisdiction to charge Maloney with violating § 661 as a substantive crime, for § 661 enters the picture only as a definitional statute. Thus, only if § 661 can be held to define “larceny” does it become applicable.

The majority holds, however, that one of the requisite elements of the common law crime of larceny — the intent to deprive permanently — has been eliminated by a redefinition of the crime of larceny in § 661. Yet, § 661 does not purport to define larceny. It never mentions the term.

Section 661 simply specifies certain conduct to be criminal, without reference to whether the statute is redefining the crime…