1320
National Stolen Property ActTracing Doctrine
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To effectuate the legislative purposes of the National Stolen
Property
Act, the courts, utilizing the principles of equity, have created a tracing
doctrine for the proceeds of such thefts or frauds. The seminal case is
United States v. Walker, 176 F.2d 504 (2d Cir. 1949). Walker
involved the fraudulent acquisition by the perpetrator of checks sent by a
mortgagee to the victim. The perpetrator exchanged the mortgagee's checks
for
two blank checks of $10,000 and $7,000, respectively, $3,000 in traveler's
checks, and $6,000 in cash. The defendant then exchanged the $10,000 bank
check
for 100 additional traveler's checks. The defendant was prosecuted for
transporting more than $5,000 of the traveler's checks taken feloniously by
fraud
in interstate commerce. The indictment was upheld. Walker,
supra,
at 566. The change in form doctrine has been recognized and followed in
other
cases. See United States v. Davis, 608 F.2d 555 (5th Cir.
1979);
United States v. Levy, 579 F.2d 1332 (5th Cir. 1978); United
States v.
Pomponio, 558 F.2d 1172 (4th Cir. 1977); United States v. Poole,
557
F.2d 531 (5th Cir. 1977); United States v. Wright, 791 F.2d 133 (10th
Cir.
1986). The Poole decision shows the need to specifically trace and
identify the proceeds of the theft or fraud. If commingling of "good" funds
with
"stolen" funds occurs, such tracing can be difficult. In United States
v.
Lennon, 814 F.2d 185 (5th Cir. 1987) $5,000 or more of fraudulent
kickback
proceeds were commingled in interstate checks with legitimate funds.
Because the
government could prove that each check contained at least $5,000 of
fraudulently
obtained funds, the conviction was affirmed.
[cited in USAM 9-61.200] | |