United States v. Simmons, 4th Cir. (2001)

PUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE TONY SIMMONS,
Defendant-Appellant.
No. 00-4131
Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-99-298-A)
Argued: January 22, 2001
Decided: April 16, 2001
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Chief Judge Wilkinson and Judge Howard joined.
COUNSEL
ARGUED: Michael William Lieberman, Alexandria, Virginia, for
Appellant. Orin Samuel Kerr, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Justin W. Williams, Assistant United States Attorney,
UNITED STATES v. SIMMONS
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Joe Tony Simmons challenges his convictions for concealing goods
that were "feloniously taken, stolen, or embezzled" while on federal
property, in violation of 18 U.S.C. 662, arguing that the property
involved two cellular telephones while proved to have been
stolen, was not proved to have been the subject of a felony theft. The
district court rejected the construction urged by Simmons and interpreted "feloniously taken," as used in 662, to mean "tak[en] with
intent to steal." Because the evidence showed that the cellular telephones had been stolen, the court convicted him. We affirm.
I
While driving a red Honda Civic del Sol in Langley, Virginia, in
August 1999, Simmons took a wrong turn. Hoping to remedy the situation, he quickly pulled into the nearest parking lot, which happened
to be that of the Central Intelligence Agency headquarters. CIA Police
Officer Terry Weatherford approached Simmons, briefly detaining
him, and ran a routine check of his drivers license and license plate
tags. The officer discovered that the suspension of Simmons license
was pending and that the Honda had been reported as stolen. Officer
Weatherford thereupon placed Simmons under arrest, and a subsequent search of the Honda uncovered, among other things, two cellular telephones, which had been placed inside a knapsack left on the
passenger seat. An investigation revealed that both cellular telephones
also had been reported as stolen several months earlier from automobiles in parking garages in Arlington, Virginia, and Washington, D.C.
Simmons was indicted for one count of grand larceny for the theft
of the Honda and three counts of receiving and concealing stolen
property, i.e., the Honda, a Nokia brand cellular telephone, and an
Ericsson brand cellular telephone. The indictment alleged that each
telephone had been "feloniously taken and stolen" and had a value
under $1,000.
Following a bench trial, the district court convicted Simmons on
the two counts relating to the concealment of the cellular telephones,
in violation of 18 U.S.C. 662. Although Simmons conceded that the
telephones were stolen, he contended that the government was
required to prove that the underlying theft of the telephones was a felony. Because the government offered no such proof, Simmons
asserted that the evidence was insufficient to convict him. The district
court acknowledged that the government had offered no evidence that
the thefts of the cellular telephones were felonies, but rejected Simmons argument that the government had the burden of proving that
fact to obtain a conviction under 662. The court stated that
the proper construction of the word "felonious" . . . is as a
descriptor of the word "taking," and so there are three activities that are covered by 662: felonious takings, stealing, and
embezzlement, and if the property was obtained in [any] of
those three manners, . . . then that element of the offense is
satisfied.
The district court sentenced Simmons to 24 months imprisonment,
and this appeal followed.
II
The single issue presented in this case is whether Congress, in
criminalizing the receipt or concealment of money or goods "feloniously taken, stolen, or embezzled," 18 U.S.C. 662, intended to
require proof that the original taking, theft, or embezzlement of
money or goods was a felony. Simmons contends that "Congress
intended the [statute] to cover only the receipt of property the theft
of which was a felony" and therefore that, because there was no evidence that the theft of the cellular telephones was a felony, his convictions must be reversed. He advances several arguments in support
of this contention.
First, he states that in construing a statute, courts should accord
words "their ordinary, contemporary common meaning." Upon consulting Blacks Law Dictionary, he notes that "feloniously" can mean
"[o]f, pertaining to, or having, the quality of [a] felony," or "acting
with intent to commit a felony," or "done with a deliberate intention
of committing a crime." Blacks Law Dictionary 555 (5th ed. 1979).1
To advance a meaning of "feloniously" that ascribes to it "having the
quality of a felony" rather than "with a deliberate intention," Simmons
argues that "feloniously" as used in 662 modifies not only "taken,"
but also "stolen" and "embezzled." Because steal and embezzle
already have criminal intent inherent within their definitions, he contends that "feloniously" must be given its other meaning that
which has "the quality of [a] felony." He adds that a subsequent
clause in 662 "knowing the same to be so taken, stolen, or
embezzled" (emphasis added) confirms his construction.
Second, Simmons argues that because Congress enacted two different statutes pertaining to the receipt of stolen property on June 25,
1948, see 18 U.S.C. 662 and 18 U.S.C. 2314, and used the term
"feloniously" in one but not the other, the "difference demonstrates
Congressional intent that the federal government should only get
involved in prosecuting [under 662] what is otherwise a state
offense only if the underlying theft is serious enough to be characterized as a felony." In short, because the statutes were enacted on the
same date, he posits, the distinction made between the two statutes
was both deliberate and revealing.
Finally, Simmons argues that in presenting this case to the grand
jury, the government "took the position that feloniously referred to
the value of the property stolen being sufficient to constitute a felony
when it was stolen." Urging the application of the doctrine of judicial
estoppel, see John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d
26, 28-29 (4th Cir. 1995), he maintains that "the government should
not now be heard to argue to the contrary."
1
Simmons recognizes that after defining "feloniously," Blacks Law
Dictionary defines "felonious taking" in the following manner: "As used
in crimes of larceny and robbery, it is the taking with intent to steal." Id.
(emphasis added). He dismisses this difficulty by arguing that "while the
term felonious taking is a term of art that refers to a taking with intent
to steal . . . the term feloniously taken is not such a term of art, and thus
is not entitled to be treated as such."
The government, on the other hand, contends that the historical

record establishes overwhelmingly that the phrase "feloniously
taken," as used in 18 U.S.C. 662, was intended to incorporate the
traditional usage of the common law as reflected in stolen goods statutes going back to at least the Seventeenth Century. This settled history establishes conclusively, according to the government, that
"feloniously taken" is a term of art that means "taken with intent to
steal." The government admonishes that to construe the statute otherwise would lead to absurd results because "[w]hether a theft happens
to constitute a felony according to state law can hinge on unforeseen
details of where, when, and how the theft occurred, as well as how
the state happens to classify its crimes." It observes that a statute that
would provide for such uneven treatment would be "a curious statute
indeed."
When interpreting a statute, our inquiry begins with the text.2
Because, in the case of 18 U.S.C. 662, Congress did not provide a
definition for the term "feloniously," we determine its meaning by reference to the terms ordinary meaning at the time of the statutes
enactment. See MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218,
228 (1994); Perrin v. United States, 444 U.S. 37, 42 (1979). And to
do this, we must look back further than the 1948 enactment of 662,
which was, in material respects, merely a reenactment of an 1825 statute, which in turn drew upon the common law. Therefore, we will
begin with the common law and trace the pedigree of 662, coming
forward.
2
The text of 18 U.S.C. 662 reads:

Whoever, within the special maritime and territorial jurisdiction of the United States, buys, receives, or conceals any money,
goods, bank notes, or other thing which may be the subject of
larceny, which has been feloniously taken, stolen, or embezzled,
from any other person, knowing the same to have been so taken,
stolen, or embezzled, shall be fined under this title or imprisoned
not more than three years, or both; but if the amount or value of
thing so taken, stolen or embezzled does not exceed $1,000, he
shall be fined under this title or imprisoned not more than one
year, or both.
At common law, "feloniously taken" was a well-established term

of art meaning "taken with intent to steal." See 4 William Blackstone,
Commentaries *232 ("This taking and carrying away must also be
felonious, that is, done animo furandi (with the intention of stealing):
or, as the civil law expresses it, lucri causa (for the sake of gain)");
Clark & Marshall, A Treatise on the Law of Crimes 12.04, at 72930 (Melvin F. Wingersky ed., 6th ed. 1958) (stating that a taking is
not felonious unless the taker fraudulently intends "to deprive the
owner of his property, and to deprive him of it permanently").
The phrase made its first statutory appearance in 1692, when the
English Parliament enacted a statute prohibiting the purchase or sale
of "goods or chattels, that shall be feloniously taken or stolen from
any other person, knowing the same to be stolen." 3 W. & M., c.9
(1692) (Eng.), cited in United States v. Moulton, 27 F. Cas. 11, 15 (D.
Mass. 1830) (No. 15,827). The near synonymity of the terms "feloniously taken" and "stolen" at that time is evident in the statutes
requirement that the defendant know only that the goods were stolen,
even though they may actually have been stolen or feloniously taken.
In this country, various states parroted the language of the English
statute when they enacted similar provisions in their own criminal
codes. See, e.g., State v. Ryan, 48 So. 537, 538 (La. 1909) (construing
a Louisiana statute prohibiting the receipt of goods "that shall have
been feloniously taken, stolen, embezzled or by false pretenses
obtained, from any other person"); State v. Crawford, 17 S.E. 799,
801 (S.C. 1893) (construing a South Carolina statute criminalizing the
knowing receipt of goods "feloniously taken or stolen by any person
or persons"). The federal government did the same, enacting a law in
1825 that read:
[I]f any person or persons, upon the high seas, or any of the
places aforesaid, shall buy, receive, or conceal, or aid in
concealing any money, goods, bank notes, or other effects
or things which may be the subject of larceny, which have
been feloniously taken or stolen, from any other person,
knowing the same to have been taken or stolen, every person, so offending, shall be deemed guilty of a misdemeanor.
Act of Mar. 3, 1825, ch. 65, 8, 4 Stat. 116 (codified at 70 U.S.C.
5357 (1901)) (emphasis added). This statute was the direct pre-
decessor of the similarly worded 18 U.S.C. 662, which Congress

moved to its current location in the United States Code in 1948.
Although legally significant alterations were made to the 1825 statute
with the 1948 enactment and subsequent amendments, the critical language at issue in this case "feloniously taken" has endured in
the same form.
When Congress incorporates into a criminal statute a term of art
that has "accumulated the legal tradition and meaning of centuries of
practice" under the common law, Morissette v. United States, 342
U.S. 246, 263 (1952), we presume that the terms historical meaning
is also retained in the federal Code. See Neder v. United States, 527
U.S. 1, 22 (1999); Evans v. United States, 504 U.S. 255, 259 (1992);
United States v. Turley, 352 U.S. 407, 411 (1957). And it is abundantly clear that at common law, "feloniously taken" meant simply
taken with intent "to deprive the owner of his rights of ownership."
United States v. Handler, 142 F.2d 351, 354 (2d Cir. 1944) ("In using
the terms stolen, feloniously converted, or taken feloniously by fraud
or with intent to steal or purloin in the National Stolen Property Act,
the legislators employed expressions of well and long-known legal
and popular meaning" (quoting Russell v. United States, 119 F.2d
686, 688 (8th Cir. 1941))).
Indeed, while many jurisdictions have "modernized" their receiptof-stolen-goods statutes by replacing this term of art with a more
familiar synonym such as "stolen," see, e.g., S.C. Code Ann. 16-13180, the association between the term of art and its traditional definition is sufficiently strong that its common-law meaning continues to
be ingrained in contemporary legal culture. See, e.g., Carter v. United
States, 120 S. Ct. 2159, 2169 (2000) (noting that "all agree" that the
adverb "feloniously," which modified the term "takes" in a version of
18 U.S.C. 2113(a) enacted in 1934, "is equivalent to intent to
steal"); Blacks Law Dictionary 616 (6th ed. 1990) ("As used in the
crimes of larceny and robbery, [felonious taking] is the taking with
intent to steal"). Thus, following the "familiar maxim that a statutory
term is generally presumed to have its common-law meaning,"
Evans, 504 U.S. at 259 (quoting Taylor v. United States, 495 U.S.
575, 592 (1990)), we are confident that Congress, when it enacted 18
U.S.C. 662, understood the term "feloniously taken" to be a term of
art meaning "taken with the intent to steal" rather than "taken in a
manner that is a felony," and we so hold.
Our conclusion that "feloniously taken" is a term of art meaning
"taken with intent to steal" addresses Simmons statutory construction
arguments. Because "feloniously taken" is a term of art, the adverb
"feloniously" cannot modify the words "stolen" and "embezzled" in
the statute. See State v. Gulizo, 90 So. 415, 416 (La. 1921) (interpreting the Louisiana code); Harless v. United States, 45 S.W. 133, 137
(Ct. App. Ind. Terr. 1898) (interpreting a predecessor statute to
662). Also, given the common-law heritage of the statute, the
adverb "feloniously" cannot modify "stolen" and still make sense
"stolen" would be modified by a word meaning "with intent to steal."
Simmons also asserts that the statutes requirement that the defendant
know that the items were "so taken, stolen, or embezzled" indicates
that the adverb "feloniously" modifies all three subsequent terms, 18
U.S.C. 662 (emphasis added), but it is much more likely that "so"
applies only to the term "taken," as "feloniously" does before it. And,
finally, the fact that Congress enacted 18 U.S.C. 2314, another
stolen goods statute, on the same day in 1948 as 662 without using
the term "feloniously taken" is simply irrelevant, as 2314 was the
reenactment of a more modern statute that was not derived from the
English and common-law antecedents discussed above.
As the government has pointed out, if we were to give 18 U.S.C.
662 the construction that Simmons urges, enforcement of the statute
would be dependent upon divergent state laws and therefore result in
uneven application throughout the United States. Under Simmons
interpretation, for example, the knowing receipt of stolen goods worth
$300 might violate 18 U.S.C. 662 if the goods were stolen in Virginia, where the larceny of goods worth more than $200 is a felony,
see Va. Code 18.2-95, 18.2-96, but not if the goods were stolen in
Maryland, where theft is not a felony unless the goods are valued at
more than $500, see Md. Ann. Code, art. 27, 342(f). Moreover,
because one element of the offense established by 18 U.S.C. 662 is
the defendants knowledge that the goods were "so taken, stolen, or
embezzled," Simmons understanding of 662 is premised upon the
dubious proposition that Congress intended to require that the defendant know both (1) in which state the goods in his possession were
stolen and (2) the distinction between misdemeanor and felony thefts
in that state. To avoid such uneven and illogical applications of the

federal criminal laws, we generally presume that "in the absence of
a plain indication to the contrary, . . . Congress, when it enacts a statute, is not making the application of the federal act dependent on state
law." Jerome v. United States, 318 U.S. 101, 104 (1943). We see no
such plain indication here.
Accordingly, we hold that to prove a violation of 18 U.S.C. 662,
the government need not show that the underlying theft was a felony.
Simmons argument that we should estop the government from
maintaining otherwise in this case, because the government took a
contrary position before the grand jury, is without merit. Judicial
estoppel is a doctrine "that prevents a party who has successfully
taken a position in one proceeding from taking the opposite position
in a subsequent proceeding." King v. Herbert J. Thomas Memorial
Hosp., 159 F.3d 192, 196 (4th Cir. 1998). The prior position must
have been accepted by the court, and the party sought to be estopped
must have "intentionally misled the court to gain unfair advantage."
Tenneco Chems. v. William T. Burnett & Co., Inc., 691 F.2d 658, 665
(4th Cir. 1982); see also King, 159 F.3d at 196. It is not at all clear
from the record that the government adopted a contrary position
before the grand jury, and therefore the doctrine of judicial estoppel
is not even applicable. Even so, an assistant United States Attorney
arguing a point before the grand jury cannot, through that argument,
alter the meaning of a statute enacted by Congress and bind the court
in subsequent applications of it.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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PUBLISHED

UNITED STATES COURT OF APPEALS

Appeal from the United States District Court

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

UNITED STATES v. SIMMONS

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

UNITED STATES v. SIMMONS

UNITED STATES v. SIMMONS

UNITED STATES v. SIMMONS

The government, on the other hand, contends that the historical

The text of 18 U.S.C. 662 reads:

UNITED STATES v. SIMMONS

At common law, "feloniously taken" was a well-established term

UNITED STATES v. SIMMONS

decessor of the similarly worded 18 U.S.C. 662, which Congress

UNITED STATES v. SIMMONS

UNITED STATES v. SIMMONS

in that state. To avoid such uneven and illogical applications of the

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