ties thefts, and auto thefts. Paying tribute to the prior work of your committee, Mr. Maroney observed that *** it was the attention and intensive study that [the] committee and the committee staff gave to the cargo theft problem that resulted in the commencement of the Federal cargo theft program in June of 1971. From the outset this Department has actively participated in this program. As a member of the Interagency Committee on Transportation Security, the Department of Justice has aggressively attempted to encourage Federal, state and local prosecutors to become more active in the prosecution of cargo theft cases.37 Detailing the efforts recently sponsored by the Department of Justice to stimulate collaborative action against fences, Mr. Maroney admitted that much remained to be done "before we can achieve a meaningful and cooperative Federal, State and local law enforcement effort. ***" 38 At the same time, Mr. Maroney said that: No greater truism has been highlighted in this committee's extensive hearings on cargo theft and fencing than the fact that law enforcement working alone cannot get the job done in this area of crime. The transportation industry must assume the responsibility for preventing thefts and accounting for the goods left in its care for transfer. Without industry's help, law enforcement's job of apprehending and successfully prosecuting thieves-not to mention the fences who induce and encourage thievery-is a most difficult task at best.39 Robert G. Renner, U.S. Attorney for the District of Minnesota, and Richard R. Hellstern, First Assistant to the U.S. Attorney for the District of New Jersey, provided valuable testimony concerning current field experience with cooperative Federal, State and local law enforcement efforts directed against criminal receivers. Among the many dilemmas faced was that of maintaining security of information about pending investigations and prosecutions. Mr. Renner, in seeking to initiate multijurisdictonal attacks upon fencing operations in the seven county metropolitan area surrounding the core cities of Minneapolis and St. Paul, found: Security was a major consideration. It was a common rumor in Minneapolis that major operators were receiving protection from the police and the courts. It was agreed we would work with only a few local officers; those we felt could work within a framework of mutual trust. . In our joint efforts to attack the problem, we had to proceed with caution. It was widely known that many policemen were wearing [stolen] suits. [A] wiretap showed that leading citizens from all walks of life were buying the illicit merchandise. It even evolved that the number of citizens included judges, city councilmen, and even the mayor of St. Ibid., p. 555. 38 Ibid., p. 562. 39 Ibid., p. 651. Paul. I am not suggesting that these people made these pur- 40 Ultimately, meticulous investigative efforts by the U.S. Attorney and his collaborators produced a master list of approximately 15 major metropolitan and out of town fences, as well as many professional burglars and shiplifters. Never before has such a list been assembled in the Minneapolis-St. Paul area. Subsequently, successful prosecutions were brought against a number of these major offenders. The newly discovered prevalence and identification of major fencing activity in Minneapolis-St. Paul was found by your committee to be indicative of similar practices in other areas of the country. Reporting on the preliminary outcome of the work of a freshly established antifencing unit within the City of Miami Police Department, Bernard L. Garmire, Chief of the department, indicated how previous assumptions about the number of fences in the City of Miami were proved to be false: One basic assumption held by unit members was that the City of Miami contained a limited number of fences upon whom the efforts of the unit could easily be concentrated. A preliminary estimate was in the area of 20 to 40 fences; this estimate has been changed to several hundred. Information obtained from members of the police department and from informants indicates that each thief probably has several fences. In one instance, an informant who had been arrested for shoplifting indicated that he had one fence. As time went by, he gradually told us about eight other fences-all but one of whom were arrested-and, it is thought, would have supplied information on more fences had he not been arrested for grand larceny in another part of Dade County."1 The Chief estimated that somewhere up to 10 percent of the gross number of fences operating in his jurisdiction were dealing in valuable goods, or with large quantities of stolen merchandise. Miss Marilyn Walsh, a doctoral candidate at the School of Criminal Justice, State University of New York at Albany, reported to your committee on the results of her 3-year study of the operations of 115 fences in an urban area of the northeast of the United States. Miss Walsh's study produced striking evidence of the volume of business done by these fences, as well as pointing to the frequent participation of so-called "legitimate businessmen" in the marketing of stolen goods. Miss Walsh, in her statement to your committee reported that: The behavior of the people that I observed in receiving stolen property was an industry, an industry receiving $8 million worth of property yearly in a metropolitan area. One need only multiply this volume of fencing for every Ameri 40 Ibid., pp. 705-6. 41 Ibid., p. 472. can city to get some idea of the scope of the theft problem supported and facilitated by the criminal receiver. The fencing industry I observed was composed of three main kinds of fences: businessmen-fences, criminal entrepreneur-fences, and independents. By far the largest group in the industry is represented by businessmen-fences, comprising nearly 67 percent of the sample of fences studies. These individuals are all proprietors of legitimate businesses, and handle stolen property directly through them or by using other resources.12 The heavy involvement of businessmen fences in this type of criminal activity must be viewed with the gravest concern, as must the sheet volume of stolen property handled with such apparent immunity by fences of all types around the nation. At the conclusion of your committee's second series of hearings, the evidence appears overwhelming that immediate, effective and largescale efforts are required to combat the activities of the fence. At this point in this report we turn to an exploration in greater detail of the major issues affecting the planning and implementation of such efforts. IV. MAJOR ISSUES RAISED BY THE HEARINGS A. LEGISLATIVE DEFICIENCIES 1. Lack of Uniform State Laws In commenting in an earlier section of this report upon the historical development of the laws relating to criminal receiving, your committee noted the piecemeal approach adopted by various legislatures when dealing with the problem of the fence. This approach has resulted in a marked lack of uniformity among the State statutes on this subject as is apparent from the legislative summary prepared for your committee by Duncan Chappell and David Hirschel.+3 Generally, witnesses appearing before your committee expressed comparative satisfaction with current substantive laws on criminal receiving within their particular jurisdictions. From the legal and enforcement perspectives, the major problems associated with these laws rested in their practical application, especially in the evidentiary and procedural areas. 2. Evidentiary and Procedural Problems Under most criminal receiving laws in this country a person becomes guilty of this crime after buying, receiving, or aiding in the concealment of stolen property, knowing it to have been stolen. The probative burden of establishing the elements of the crime rest upon the prosecution, assisted in some jurisdictions by the presence of statutory presumptions. One such presumption, described to your committee as an important weapon in the fight against professional fences in New York, provides that: A pawnbroker or a person in the business of buying, selling or otherwise dealing in property who possesses stolen prop 42 Ibid., p. 527. 43 Op. cit., supra, note 23. erty is presumed to know that such property was stolen if he For the fence who is a frequent dealer in secondhand or even new merchandise, the presence of this type of presumption may insure that a certain standard of care and inquiry is exercised before goods are acquired. If, however, the fence is in essence a broker who rarely comes in personal contact with the goods in which he deals, the application of this presumption is likely to be of little assistance to the prosecution. Franklyn H. Snitow, Assistant District Attorney, New York County, gave the following example to your committee of a case of this type. *** enforcement agencies is the prosecution of a "fence" who has contracted for the theft of the property, thereby legally becoming an accomplice in the larceny itself, but who has little, if any, direct contact with the stolen property. Successful prosecution in this type of case very often depends upon the cooperation and testimony of an "accomplice." In New York State, we have what is commonly referred to as the "accomplice corroboration rule" which, as it pertains to the possession of stolen property, is contained in Section 165.55 of the New York State Penal Law and provides as follows: 1. A person charged with criminal possession of stolen property who participated in the larceny thereof may not be convicted of criminal possession of such property solely upon the testimony of an accomplice in the larceny unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.. 2. Unless inconsistent with the provisions of subdivision one of this section, a person charged with criminal possession of stolen property may be convicted thereof solely upon the testimony of one from whom he obtained such property or solely upon the testimony of one to whom he disposed of such property. So that the moment that the fence enters into the actual conspiracy to steal the property, thereby becoming legally culpable for the larceny itself, then the People can only obtain a conviction against the fence for the larceny or possession of the stolen property if there is corroborative evidence. The rule prevailing in the Federal courts, however, is in substance that corroboration of accomplice testimony is not a legal requirement although the court should caution the jury concerning the inherent frailties of such testimony. Consequently, in New York State, in order to obtain an indictment, it is necessary to coordinate in some way the testimony of an "accomplice." This is sometimes an insurmountable task especially when dealing with a fence who has very little to do with the actual theft and has had no physical contact with the stolen property.45 44 New York State Penal Law, Section 165-55. 45 Op. cit., supra, note 12, p. 46. In Florida, the City of Miami Police Department's antifencing unit found itself constrained by that State's criminal receiving laws and the evidentiary difficulties of establishing the crime of criminal receiving. In Chief Garmire's words: It was anticipated at the outset that the constraints implied by the existing laws on receipt of stolen property and entrapment would engender the most difficult problems in arresting fences. The two primary requirements of the law-that technically, the property was stolen and the person receiving it knew it was stolen-forecast our later operational procedures. It was to become apparent that informant testimony is essential to prove knowledge, that positive identification of property must be made to establish its stolen nature, and that a law enforcement officer is precluded by law from utilizing stolen property which has come into his custody to establish a case against a fence.46 It seems clear from the evidence provided your committee during its hearings that "making a case" of criminal receiving more often than not requires long and painstaking investigative work by law enforcement agencies. The use of surveillance techniques and of informants form an integral part of this work. Speaking of Federal efforts in this field, Deputy Assistant Attorney General Maroney indicated that: The most effective orthodox means of tracking fences' activities are dictated by the manner in which they operate. Fences who distribute high valued goods often will do so without ever coming close to those goods himself. Such a fence is a promotor, who acts as a broker in finding the right buyer for the goods he knows to be available. He does this in person and on the phone, and hence the important part to be played in these investigations by the investigative use of electronic surveillance, such as phone-tapping. Most of the United States and Strike Force attorneys indicated that such surveillance was extremely important in locating the stolen goods, the places where the goods are stored, and the places where the buys are to take place. The use of informants in such investigations is also necessary, since without them it is often impossible to identify the fence, and find out when a wiretap may be justified. These two means of investigation, informants and wiretaps, are two of the most helpful means of obtaining direct information on the fence. One mode of obtaining evidence on the fence is to make a purchase from him, after gaining his confidence. Problems inherent in this approach involve the large expenditures necessary in money and people. The government usually does not have sufficient money available to buy back stolen goods, and some form of industrial support would be extremely helpful. Unfortunately, industry has usually refused to make available such monies and/or people to make the buys. In this regard, when federal agents make an arrest while purchasing 46 Op. cit., supra, note 35, p. 472. |