UNITED STATES v. COOK
Legal provision: 18 U.S.C. 660
Argument of Jerome M. Feit
Chief Justice Earl Warren: United States, Appellant, versus John W. Cook.
Oh, I beg your pardon -- I -- of course the opinion was announced -- versus John W. Cook.
Mr. Feit, if you are ready, proceed now.
Mr. Jerome M. Feit: Mr. Chief Justice, may it please the Court.
At the outset, I would request the Court's permission for Mr. Thomas H. Peebles of the Tennessee Bar to argue this case for appellee's pro hac vice.
This case is here on direct appeal from an order of the District Court for the Middle District of Tennessee dismissing an indictment on the ground that it failed to charge an offense under the statute upon which it was based, 18 U.S.C. 660.
The indictment which is set out at page 1 of the record charged that while riding on his employer's truck moving in interstate commerce, appellee embezzled funds belonging to his employer who was an individual engaged in commerce as a common carrier.
18 U.S.C. 660 proscribed such embezzlement when committed by an employee of any firm, association, or corporation engaged in commerce as a common carrier.
The District Court read the statutory language firm, association, corporation as excluding from the statute's coverage individually owned carriers and accordingly dismissed the indictment.
In so doing, it followed the lead of the Tenth Circuit which in 1950, in a per curiam decision earlier reached the same result.
It is the Government's position that the District Court has given the statute an unnecessarily circumscribed reading contrary to the underlying legislative purpose and not commanded by the statutory language.
As we will show the statute in general and the employee provision in particular, protects all common carriers engaged in the business of interstate carrier, irrespective of their size, and no matter the internal business structure in which the carrier chooses to operate.
I would first like to turn to an examination of this legislative purpose and then to the question of whether the actual language employed in the statute can reasonably be read and fairly understood as convened to this purpose.
18 U.S.C. 660 is an amalgam of two distinct provisions of a Criminal Code brought together by the 1948 revision.
One, dealing with embezzlement by executives of carriers which had been previously Section 412 of the 1946 Code, and the other with certain kinds of employee embezzlement which had been Section 409 of the 1946 Code.
The employee part under which appellee was here indicted was first adopted in 1946, only two years before the 1948 revision as one of the series of broadening amendments of the Carlin Act of 1913 which had its aim, the protection of -- from theft of property entrusted to carriers for interstate transportation.
The 1946 amendment to Section 409, streamlined statutes by setting it up in separate provisions, broadened it to cover air as well as surface transportation and embezzlement as well as larceny and in addition, added Section 409 (a) (5) which is set out at page 9 of our brief.
In essence, this Section provided that an employee of any carrier who embezzles his employer's funds while riding either upon any vehicle belonging to his employer shall be guilty of a penalty -- of a felony.
The language in the statute, any carrier clearly covered all forms of carrier business regardless of size or their internal business structure.
Indeed, there is no question that appellee agrees that if 409 (a) (5) was the law today and the indictment was specifically drawn under that Section, the indictment was quite proper and authorized.
The argument is made, however, that the Congressional purpose was changed and that the scope of 409 (a) (5) was narrow by virtue of its combination with what had been this executive provision, Section 412 of the 1946 Code which had proscribed embezzlements by any president, director, officer, or manager of any firm, association or corporation engaged in commerce as a common carrier.
The result of the 1948 revision, the creation of Section 660, was that the language employee of any carrier was substituted and the language of the statute became an employee of any firm, association or corporation.
All the trustworthy evidence we submit points to the fact that this was -- this change of the revises did not narrow the statute but was basically a stylistic change not certainly a change of substance.
First of all, Section 412 as it had existed in the Criminal Code prior to the 1948 revision does not require such a reading.
It derives intact from Section 9 of the Clayton Act.
Undeniably, this provision adopted almost 35 years before the 1948 revision was principally concerned and meant to prevent financial depletion of railroad businesses through executive embezzlement.
It is, however, also a fair inference we think to draw from both the language of the Section 9 and from some of the Senate debate that the intent was more broad -- was broader, that in addition to protecting against embezzlement by executives of railroads, Congress aimed at serving the public interest in protecting all interstate carriers from impairment of effective operation through embezzlement by executives.
As one of the managers of the Senate Bill said of Section 9, we are dealing with all carriers alike.
This view is supported by the language, the comprehensive language used.
If Congress have merely decided to reach multiple ownership carriers, the words “corporation and association” would have been sufficient since associations would include partnerships.
By also using the word firm, Congress, we submit indicated its intent to cover all carriers in the business of common carriage without regard to form of ownership, the form of ownership.
In addition, it is significant I think that Section 9 jurisdiction was not based upon size of the carrier but on the connection of the embezzled funds to commoners.
This provision, Section 9, was thereafter carried over into the Criminal Code in 1926, and every six to eight years thereafter, whenever a new addition of the Code was published, and in 1948 was combined with Section 409 (a) (5).
There is no cogent reason apart from the language of 412 submitted by appellee or the court below why Congress would've limited the scope of 409 (a) (5) in the 1948 revision.
Appellee urges an explanation of this cutting down that the employees of individual carriers on -- on the truck employees of individual carriers and their acts of embezzlement would involve small amounts and not be within the congressional concern.
The sure answer to that is that the employee provision only applies to employees who worked on the trucks of carriers and whether the carrier is a multiple ownership carrier or individually owned carrier.
It would have been very strange indeed, we submit, if Congress, having undertaken to protect the small as well as the large carriers would have through the -- by the way of a revision, change that purpose to exclude the individually owned small carrier.
We have made a random survey of about ten percent of the -- some 11,700 odd common carriers with an annual revenue of $200,000 or less.
And we find that almost 40% of those carriers were individually owned, many operating under a company name and having over 2000 employees and during the same period of time, during 1964, only one percent of the carriers registered operated as partnerships.
Quite appropriate here is what the Court said in United States against A & P Trucking Company at 358 U.S. which held that a partnership was an entity for purposes of criminal prosecution under the Motor Carrier Act of 1935.
The Court said, the conclusion is not likely to be reached that Congress intended that some carriers should not be subject to the full gamut of sanctions provided for infractions of ICC regulations merely because of the form under which they were organized to do business.
Chief Justice Earl Warren: What are you quoting from Mister?
Mr. Jerome M. Feit: I'm quoting from United States against A & P Trucking Company, Your Honor at 358 U.S.
This approach which seems to us is even more applicable here.
It is difficult to believe that Congress could have intended that small carrier, the carrier perhaps more in need of protection than any other carrier.
And would not be under the Act and that the jurisdiction would depend upon whether an individual chose to do business as a sole proprietorship even though he had the name company after the sole proprietorship or as a one-man corporation.
Finally, we submit in this connection that Congress would hardly have sought this change if it so intended through the means of a revision.
The reviser's note accompanying Section 660 make plain that the original intent of Congress is preserved and that a uniform style of statutory expression is adopted.
Also, in the practice to Title 18 U.S.C. the reviser state in general, with few exceptions, the Code does not attempt to change existing law.
Justice William J. Brennan: But tell me, Mr. Feit, I gather this all comes down to an argument that the word modifying common carriers should be in effect read out of the statute, doesn't it?
Mr. Jerome M. Feit: No, I think our position is that the employee would have to be an employee of any firm, association, or corporation.
Our basic position is that the word firm connotes a business entity rather than a multiple ownership.
Justice William J. Brennan: Well, 409 (a) (5) was employee of any carrier.
Mr. Jerome M. Feit: 409 (a) (5) was an --
Justice William J. Brennan: 660 now is an employee of such a common carrier.
Mr. Jerome M. Feit: Right.
Justice William J. Brennan: Now, going back to firm, association, or --
Mr. Jerome M. Feit: Firm, association or corporation --
Justice William J. Brennan: Your argument is not that we should ignore the word such, but rather should read the firm, the word “firm”?
Mr. Jerome M. Feit: Read firm and the words in combination as in indicating a congressional intent to reach the business of interstate carriage, be -- an ongoing carrier business rather than Congress having any concern with the internal structure of the business or the way a carrier decides to operate his business.
Justice William J. Brennan: Now, I appreciate it -- wouldn't appear on the face if this is only under your indictment, isn't it?
Dismissal but --
Mr. Jerome M. Feit: Yes.
Justice William J. Brennan: I'm just wondering.
Is there any federal requirement, an ICC requirement of filing of something we used to call in my home state a DBA, doing business under the name of something else?
Is there anything like that?
Mr. Jerome M. Feit: As far as I know, I do not know of any such requirement, there may be one.
I might add Mr. Justice Brennan that in the course of examining these registration certificates, they have a portion which says, “The nature of ownership,” and they would say sole proprietor, named, doing business as of Jones Transfer Company, and these are individually owned carriers, but doing businesses as companies.
And this brings me precisely to the major argument that appellee makes, and that is that the word firm has some fixed indefinite common law meaning or other meaning which necessarily excludes carriers from coverage.
Justice Tom C. Clark: But in that, an employee -- if he is an employee of an individual Tolbert Hawkins, for instance, isn't he?
Mr. Jerome M. Feit: Yes.
Yes and he was an employee of an individual Tolbert Hawkins engaged in commerce as a common carrier.
Justice Tom C. Clark: So Hawkins apparently has a license from ICC --
Mr. Jerome M. Feit: Hakwins has a -- a registration certificate had been filed with the Interstate Commerce Commission.
Justice Tom C. Clark: In the name of Tolbert Hawkins?
Mr. Jerome M. Feit: In the name of Tolbert Hawkins.
Justice Tom C. Clark: Well, he is doing business as, wouldn't be a firm at all, was it?
He doesn't have to file any or he's doing business as a firm because he's not doing business as a firm.
He's been doing business in his own name.
Mr. Jerome M. Feit: Well, as I said to Mr. Justice Brennan, I did not know whether any specific documents had to be filed with respect to whether he was doing business as a firm.
In the -- this case, he is not doing business under a company name.
I was responding -- noting that in examining some of the registration certificates, which are in file with the Interstate Commerce Commission, that they have a location which says the nature of the carrier, the ownership of the carrier, it will say sole proprietorship.
And then it will say, “doing business as”.
Now in this case, Tolbert Hawkins -- yes, he is doing business as Tolbert Hawkins, with no additional.
Justice Tom C. Clark: Do you say he would be come on the firm?
Mr. Jerome M. Feit: Yes, and I might -- no, this isn't -- this is not set out in the indictment.
Perhaps I should -- I -- because you know, he has 14 trucks and some 17 employees apparently.
As I say, the word firm, it seems to us, does not necessarily connote a group or multiple ownership.
We think what it really means in this context is the business of -- carrying on the business of interstate commerce.
I might --
Justice William J. Brennan: If that's so, they didn't need the word association or corporation, did they?
Mr. Jerome M. Feit: Well, this statute didn't come out full blown and born in 1948, Mr. Justice Brennan.
Justice William J. Brennan: Now, this is the one that's --
Mr. Jerome M. Feit: It was a --
Justice William J. Brennan: -- derived from the executive (Voice Overlap) --
Mr. Jerome M. Feit: Yes, this derived from the Clayton Act provision which is I pointed out is essentially concerned with rail -- embezzlement of railroads, there's no question about that.
What I do suggest is that in light of the clear purpose of Congress in having adopted the employee provision, that it would be strange indeed in this combination, in 660, there was an intent to narrow that provision to exclude employees of individually owned carriers which it seems to me are the most in need of this protection perhaps.
Justice William J. Brennan: And I gather we get nothing from the legislative history when they took over 409 (a) (5), they used the identical language except that they inserted the word such to modify common carrier.
Mr. Jerome M. Feit: Yes, and down further in the statute, they refer to such firm, association or corporation again.
It -- I might -- the suggestion because I don't know -- I don't know exactly what the -- motivated the revisers.
But I think from the face of it, a reasonable explanation is that they started with 412 and then added 409 (a).
And then in starting the 412, they used the phraseology of 412 throughout --
Chief Justice Earl Warren: We had a bit -- do we have any judicial interpretation of the word “firm”?
That would be helpful here.
Mr. Jerome M. Feit: Well, I think generally speaking, I think its fair and appellee agrees, I -- a firm has generally been defined as the equivalent of a partnership.
Now, it is also been defined -- it is also been defined synonymous with company.
Chief Justice Earl Warren: As what?
Mr. Jerome M. Feit: As synonymous with company, and the word “company” there are numerous decision under specific statutes with the word company has been defined to include an individual.
It's interesting in this connection in terms of the word firm that appellee cites a case, an early Ohio case in which under that particular statute, the Court said that firm covers only partnerships and neither private corporations nor individuals.
23 years later under an entirely different statute, the Ohio Supreme Court held that the word “firm” in common usage was sufficiently broad to cover corporations.
And as a recent Wisconsin decision which suggest that the word “firm” means a business association, something perhaps less than a partnership.
Our position is that the word “firm” should be determined in light of the particular statutory purpose.
It has no fixed and definite meaning that the common understanding it seems to us is when the word “firm” is used, it suggests a business.
It doesn't necessarily or absolutely suggest the type of business but an ongoing business.
And we think that no rule of strict construction of penal statutes requires, in light of this purpose, any other narrower reading as this Court has repeatedly said, it is sufficient if the words are given their fair meaning in accord with the evident intent of Congress.
And we think, as I have said, that Congress clearly meant to protect the business of all common carriers from specific kinds of employee and executive embezzlement that the word “firm” can fairly be read to achieve that result.
And that, we respectfully submit that the judgment of the District Court should be reversed and that the indictment should be reinstated.
Chief Justice Earl Warren: You are going to make a motion, will you Mr. Feit.
Mr. Jerome M. Feit: Oh, I'm sorry Your Honor, I had --
Chief Justice Earl Warren: (Voice Overlap)
Mr. Jerome M. Feit: I thought I was to make it at the outset of the argument.
I would like to move the Court -- to permit Mr. Thomas H. Peebles of the Tennessee Bar to argue this case for appellee pro hac vice.
Chief Justice Earl Warren: Motion is granted.
Argument of Thomas H. Peebles Iii
Mr. Thomas H. Peebles Iii: Mr. Chief Justice, may it please the Court.
I gather from the argument of counsel and from the briefs that there really is no disagreement as to the origin or the legislative history of Section 660.
The divergence of opinion arises in the inferences which can be drawn from the legislative history and as to the fair meaning of the word “firm”.
Without questions, 660 was derived from a merger of Section 412 and Section 409 (a) (5) of the Criminal Code on 1946.
Section 412, the executive embezzlement provision used the phrases firm, association, or corporation to designate the entities protecting it.
Section 409 (a) (5) on the other hand uses a terminology -- that is the employee embezzlement provision, used the distinct terminology in a carrier.
Justice William J. Brennan: Mr. Peebles, may I interrupt this one --
Mr. Thomas H. Peebles Iii: Yes sir.
Justice William J. Brennan: -- whether the indictment indicated where -- in what state does that collection referred?
Mr. Thomas H. Peebles Iii: I believe in the State of Tennessee, if Your Honor please --
Justice William J. Brennan: -- it said -- do I take it that therefore, it would be I suppose, subject to constitution under Tennessee law?
Mr. Thomas H. Peebles Iii: That's correct Your Honor.
Justice William J. Brennan: Has there been any prosecution?
I know this is outside of the record but --
Mr. Thomas H. Peebles Iii: Your Honor, I don't know because I've never seen the defendant since he was dismissed.
I don't know what happened to him.
So we have two distinct sections which are predecessors to Section 660 and they utilized different terminology.
Now I think there's a reason for that.
The executive embezzlement provision which punished named executives of a firm, association, or corporation, I don't think it would have been logical or appropriate to use in that phrase or in that section of the Code any person or any individual firm, association, or corporation because the executive of an individually owned carrier would normally be the owner.
On the other hand, 409 (a) (5) uses much broader language, the language “any carrier” which is a specific language which Congress deleted when it merged the two sections to form Section 660 and inserted, in lieu of that provision, any such carrier referring to -- any such carrier of a firm, association, or corporation.
Justice Hugo L. Black: The revisers did that, you mean?
Mr. Thomas H. Peebles Iii: That's correct.
So, the Government contends and we agree.
We think they're correct about it, that the predecessor to Section 660, the employee embezzlement provision 409 (a) (5) clearly would have included the offense which is now before the Court, without question.
Any carrier is broad enough to include an individually owned carrier.
But we have quite a different situation now because of the revision.
In other words, what was once perfectly clear is not clear at all.
Now, as a matter of fact, the District Court of course in this case and the Tenth Circuit Court of Appeals in the Schmokey case have held that the statute 660 no longer covers individuals operating as common carriers.
Justice William J. Brennan: And this I take it, even if accidental, not intended by the revisers, all because of the principle of strict construction of criminal statute.
Mr. Thomas H. Peebles Iii: I don't think necessarily so, if Your Honor please.
I think there is more to it.
In other words, I don't think it's enough to simply use the magic phrase “strict construction.”
I think that the courts have arrived at this conclusion, the Schmokey case, and I feel reasonably certain that the District Court in this case arrived at this conclusion because conflicting inferences can be drawn from the legislative history and because you do have two readings of the word “firm.”
It's possible to read firm, as the Government contend.
It's also possible to read firm in its ordinary sense which I submit is partnership.
Justice William J. Brennan: But from what -- from what in the legislative history, since this was a revision and a merger of the two sections, can there be drawn any inference that Congress intended to limit the employee statute -- was that 409 (a) something?
Mr. Thomas H. Peebles Iii: If Your Honor please, I think this, number one, from the very action which Congress took in substituting the language.
In other words, Congress retained the language of 412, firm, association, or corporation.
But Congress specifically eliminated the language “any carrier” which had been contained in Section 409.
Justice William J. Brennan: Well, I take it, they did that only because they approved the revision.
I meant, in other words, Congress never addressed itself to that problem directly, did it?
Mr. Thomas H. Peebles Iii: Probably not.
Justice William J. Brennan: Just accepted the proposal of the revisers that these two statutes would be merged into this one statute.
Mr. Thomas H. Peebles Iii: I think that's probably true.
Chief Justice Earl Warren: Mr. Peebles, suppose that Congress, in a shorthand way had left out the corporation and association and they'd just said firm, will you take that -- will it prevent them from prosecuting a corporation officer?
Mr. Thomas H. Peebles Iii: No, I do not, Your Honor.
Chief Justice Earl Warren: No, why do you say that in that case and the -- and not in the case we have here?
Mr. Thomas H. Peebles Iii: I would not disagree at all that firm could fairly be read to include a corporation.
And I would not disagree at all that firm could fairly be read to include an association.
I don't think their generally thought of is that, but I think they can fairly be read to include those entities.
But I don't think that -- as I have stated in my brief, I have never found a case which has ever held the term “firm” to be synonymous with an individual.
That doesn't mean, as counsel has suggested, that perhaps I have suggested that “firm” has a definite and fixed meaning.
I recognized that different words or the same word has different meanings for different purposes.
But in this particular case, going back to the Court's question, we have -- first, specific changes by Congress, that in itself must designate something.
It must have some meaning.
I think from that alone, an inference can be drawn that Congress did intend to eliminate individual carriers from the coverage of the Act.
Now, why they intended to do it, I cannot answer it.
I don't know.
But, looking at the legislative history of the Section again, the predecessor or the larceny provision which preceded Section 409 and Section 412, enumerated any person, firm, association, or corporation.
Thus clearly Congress recognized a distinction between person doing business, theft or embezzlement from a person or individual, and theft from a firm.
The same thing is true in the Bill which it was -- that's S. 739 I believe which is cited by the Government, Senator McCarran's Bill which certainly made -- recognized the distinction between a person and a firm.
S. 739 enumerated specifically any person, firm, association, or corporation.
What I'm getting at is that Congress has consistently considered a person and firm as distinct.
Justice Abe Fortas: Mr. Peebles, may I get your comment on this --
Mr. Thomas H. Peebles Iii: Yes Mr. Justice.
Justice Abe Fortas: -- possibility, assuming it is a possibility, that is to say that the case may not turn on the construction of the word “firm.”
If you read the following phrase referring to such common carrier as relating only to the common carrier engaged in commerce, have I made the point clear?
Mr. Thomas H. Peebles Iii: Yes, Your Honor, I think so --
Justice Abe Fortas: That is -- that is perhaps it could be said that -- in that the second phrase or whoever being an employee of such common carrier really means whoever being an employee of a common carrier engaged in commerce, and that such does not relate back to firm, association, or corporation but relates back to engaged in commerce.
I know that that is not crystal clear but I don't think anything in this statute is crystal clear.
But I thought -- I had thought I'd -- it would be clear, and I'd like to get your comment on that reading.
Mr. Thomas H. Peebles Iii: I agree, if Your Honor please, that that is possible to do.
But, I think, as I read the statute, such common carriers does refer -- “such” does refer to the entities which have previously been enumerated in the statute, firm, association, or corporation.
I think the Government has interpreted in that manner and certainly both the District Court in this case and the Court of Appeals in the Schmokey case have interpreted the statute in that manner.
I do not think it's impossible to --
Justice Abe Fortas: I noticed in the balance of the statute, say -- an employee of such common carrier, an employee riding in or upon in a railroad car, and then skip, moving interstate commerce, embezzles, etcetera, then you follow it down and then again, they use a formula, embezzles, etcetera, assets of such firm, association, or corporation arising from -- arising or accruing from, or used in such commerce, which seems to be a reference to -- back to the phrase interstate commerce.
I'm -- I am by no means sure of this but I did want to submit it to you, through your comment.
Mr. Thomas H. Peebles Iii: Well again, I don't know if I've answered the Court's question but I -- it just seems to me that a fair reading of the statute would require that such carrier, such common carrier makes reference back to firm, association, or corporation --
Justice Abe Fortas: Yes.
Mr. Thomas H. Peebles Iii: -- and not --
Justice Abe Fortas: There's nothing whatever in the substance of legislative history, I take it, that it indicates a specific intent on the part of Congress to narrow the old thrust of 409 (a) (5).
Mr. Thomas H. Peebles Iii: I can find nothing on that, if Your Honor please.
The only point that I was making on that is that Congress has consistently prior to this enactment of Section 660, has consistently considered person and firm as distinct.
It's difficult for me to see why -- as the Government contends, if this statute is designed to protect all common carriers regardless of their form of ownership -- in other words, are broad, comprehensive statute such as that, it's different to me why Congress -- for me to see why Congress didn't just used the firm -- the term “any carrier”.
Certainly, that's the broader and more comprehensive language but Congress, for some reason which we don't know because the legislative history doesn't specifically tell us, did not do that.
Justice Potter Stewart: Or isn't the best guess that the reason was negligent draftsmanship?
Mr. Thomas H. Peebles Iii: My guess is, may it please the Court, is that this is an omission.
Justice Potter Stewart: An inadvertent --
Mr. Thomas H. Peebles Iii: That's the best --
Justice Potter Stewart: -- inadvertent or negligent omission or (Voice Overlap) --
Mr. Thomas H. Peebles Iii: I think that's the most logical explanation frankly.
But I don't think that the Court should correct the errors of Congress.
Justice Potter Stewart: Right.
Mr. Thomas H. Peebles Iii: Congress could -- it's been 15 years since the Schmokey case made -- decided this case or decided this same issue.
And Congress could have acted had it so desired.
This would be very simple to amend.
All you have to do -- all that Congress would have to so do is to eliminate the word “such” it appears to me.
But Congress hasn't done that.
And it does seem to me an error which the Congress and not this Court should correct.
Justice Tom C. Clark: Of course the theory is that you don't attach similar responsibility unless the fellow reads the -- he understands that he's doing something that's proscribed as right, isn't it?
Mr. Thomas H. Peebles Iii: That's correct.
Justice Tom C. Clark: This fellow evidently used -- taking his money was proscribed --
Mr. Thomas H. Peebles Iii: That's correct --
Justice Tom C. Clark: -- he isn't wrong, is he?
Mr. Thomas H. Peebles Iii: I'm certain he knew it was wrong, if Your Honor please.
It would have been punishable under state law.
Justice Tom C. Clark: Yes.
I just wanted to -- are you familiar with the National (Inaudible) case?
Mr. Thomas H. Peebles Iii: I don't --
Justice Tom C. Clark: (Inaudible) is not too vague?
Mr. Thomas H. Peebles Iii: I'm not familiar with that case.
Justice Tom C. Clark: (Inaudible)
Mr. Thomas H. Peebles Iii: Well, I agree that this statute is vague.
And what is more important is that at one time, the statute was perfectly clear.
409 (a) (5) would have covered this without any question, and we wouldn't be here today, but for the acts of Congress in changing the statutory wording.
Justice Byron R. White: What possible purpose do you suppose Congress might have had in the -- if it really intended to exclude in the -- the individual?
Mr. Thomas H. Peebles Iii: The only logical purpose and it does not hold true in all cases if Your Honor please, that I could think of is this.
The Justice Department apparently opposed this statutory provision or the embezzlement provisions from the outset because the Justice Department felt that it would bring into court a number -- or into the federal courts, a number of small cases involving small amounts embezzlements.
And this case is a perfect example.
We're dealing here with the theft of -- or the alleged embezzlement of $200 accruing from an interstate shipment of bananas.
It seems to me that Congress may have intended to eliminate just that type of case.
It would not hold through though -- that argument does not hold through in all situations because you could have a small partnership and the same thing would apply, you could have a small embezzlement which would still go into the federal court.
Justice Potter Stewart: Or a small embezzlement from a big company?
Mr. Thomas H. Peebles Iii: That's correct.
Justice Hugo L. Black: Of course sometimes, it might not be able to prove just to -- where the intent occurred? Being it's a state carrier, and I suppose that's one reason Congress (Inaudible) isn't it?
Mr. Thomas H. Peebles Iii: I think that is true, if Your Honor please.
Justice Hugo L. Black: So, while here you say that -- and that (Inaudible) Tennessee that that wasn't the problem.
But ordinarily, why -- unless construed this act to include all carriers, regardless of their makeup, or with the individual operating as a carrier would be useful to him.
Mr. Thomas H. Peebles Iii: Well --
Justice Hugo L. Black: He was having a protection as the only carrier (Inaudible).
Mr. Thomas H. Peebles Iii: May it please the Court, I don't -- I'm not sure that that's necessarily true.
What puzzles me is this -- apparently, there had been only two cases which have arisen under this -- under Section 660.
Something is -- I don't think that all employees have stopped embezzling the funds of interstate carriers.
Something is -- some disposal of these facts of cases is being made and it appears to me that perhaps state laws have been adequate to cope with the situation.
If that were not true, it appears to me that trucking associations would have -- put some pressure upon Congress to change the decision in the Schmokey case.
In other words, to revise Section 660, but nothing has been done along those lines as far as I can determine.
Justice Hugo L. Black: How would you prove legislative (Inaudible)?
Mr. Thomas H. Peebles Iii: I beg your pardon Your Honor.
Justice Hugo L. Black: How would you prove -- assume this is a small operator and (Inaudible)
How could you prove when he took the money in Tennessee or in the adjoining state?
Mr. Thomas H. Peebles Iii: Well, there was -- there's no question that it would be difficult to prove.
Justice Hugo L. Black: You don't have to prove that as a federal offense.
All you have to prove is the carrier, his employee, the money is gone, he's got it, (Inaudible)?
Mr. Thomas H. Peebles Iii: That's true.
It would be more difficult to prove --
Justice Hugo L. Black: The difficulty -- in fact in this case, (Inaudible)if he proves that he took the money in Tennessee, the -- state prosecution were involved, wasn't it?
Mr. Thomas H. Peebles Iii: That's correct.
Justice William J. Brennan: I'd see this revision Mr. Peebles was made -- how many years before Schmokey was decided?
Mr. Thomas H. Peebles Iii: I believe, two years.
Justice William J. Brennan: Two years?
Mr. Thomas H. Peebles Iii: I believe the revision is from 1948.
I believe Schmokey was decided in 1950.
Justice William J. Brennan: And your argument is that Congress didn't agree, they should have --
Mr. Thomas H. Peebles Iii: That --
Justice William J. Brennan: -- put the word person back or something.
Mr. Thomas H. Peebles Iii: They could have substituted -- or inserted the word “person” or they could have just -- they could strike --
Justice William J. Brennan: Taken out the word “such”?
Mr. Thomas H. Peebles Iii: Strike the word “such”.
But I don't necessarily mean to imply that Congress play -- failure to act in this respect is conclusive of legislative approval of the Schmokey case's interpretation of the statute.
But it does point in that direction and it does tend -- to me, it tends to deflate the Government's arguments that we've got such an enormous problem of employee embezzlements from individual carriers.
Somehow, these situations are being dealt with perhaps by the state courts.
I don't know.
In conclusion, may it please the Court, I would point out that -- just in summary that I think conflicting inferences can be drawn from the legislative history, number one, from the very Acts which Congress has done in changing the statutory language.
Number two, from the legislative history and that Congress has always considered a person or individual as distinct from firm.
And finally, firm as I have stated, in its ordinary usage by every case which I have ever found has determined that language to mean or to be synonymous with partnership and never individual.
Chief Justice Earl Warren: Mr. Feit.
Mr. Peebles, I understand that the court below appointed you to represent this defendant and the Court would have you know that we appreciate what you have done.
We consider that a real public service and in the interest of justice and we thank you very much for your --
Mr. Thomas H. Peebles Iii: Thank you very much Your Honor.
Chief Justice Earl Warren: -- for your service.
And Mr. Feit, we -- of course we appreciate your service to the Government and we thank you too.
Very well, gentlemen.