Notre Dame Law School NDLScholarship Journal Articles Publications 1976 Criminal Redistribution of Stolen Property: The Need for Law Reform G. Robert Blakey Notre Dame Law School Michael Goldsmith Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Criminal Law Commons, Law Enforcement and Corrections Commons, and the Property Law and Real Estate Commons Recommended Citation G. R. Blakey & Michael Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich. L. Rev. 1511 (1975-1976). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/107 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. CRIMINAL REDISTRIBUTION OF STOLEN PROPERTY: THE NEED FOR LAW REFORM G. Robert Blakey and Michael Goldsmith TABLE OF CONTENTS I. THm REALITIES OF MODERN FENCING SYSTEMS ---------- 1523 A. Marketing Theory and the Fence ------------- 1523 B. Patternsof Redistribution .................................- 1528 1. The "Neighborhood Connection"-- 1529 2. The Outlet Fence --------------------- 1531 3. The Professional Fence ------------- 1533 4. The Master Fence -------------- 1535 5. The Role of Organized Crime ------------- 1538 II. SOCIAL CONTROL THROUGH LAW -------------- 1542 A. Criminal Sanctions --------------------- 1542 1. The Development of the Law ------------- 1542 2. Receiving Stolen Property: A Modern Perspective --------------------------- 1545 a. The "receipt" of property -------------- 1545 b. The goods must be stolen -------------- 1551 c. The state of mind requirement ----------- 1558 (i). The appropriatemens rea ----------- 1559 (ii). The availability of direct evidence es- tablishing mens rea --------------- 1562 (iii). The use of circumstantial evidence to establish mens rea ---------------- 1572 (iv). Strict liability ------------------- 1589 (v). Affirmative defense --------------- 1593 3. Sentencing Convicted Receivers ------------ 1597 B. Civil Remedies for Fencing Crimes ------------ 1601 II. CONCLUSION: BASIC TACTICS AND STRATEGY FOR LAW ENFORCEMENT -------------- 1611 Appendix A -...----....--------------------............------------------ -1614 A ppendix B - ....................................................... 1620 1511 CRIMINAL REDISTRIBUTION OF STOLEN PROPERTY: THE NEED FOR LAW REFORM G. Robert Blakey* and Michael Goldsmith*t Our society is permeated by a consciousness of theft: triple-locked doors of city apartments,guard dogs prowling stores and warehouses at night, retail prices and insurance rates based on the assumption that large quantities of merchandise are simply going to disappear. But our consciousnessof theft tends to be limited. It is easy to imag- ine the act itself-the forced lock or smashed window in the dead of night, the hijacker ordering the driver out of his truck cab at pistol point. It is harder to keep in mind that these acts aren't random or self-contained but are usually practical ways of acquiring goods for an established buyer. As for the dealer in stolen goods-the "fence"-there our imagination seldom goes beyond the owner of a seedy pawnshop or the characterwho sidles up on the street and mut- ters, "Hey buddy, wanna buy a watch?"1 THE development of sophisticated fencing systems for the sale of stolen property to consumers has paralleled the industrialization of society. Although crimes against property and attempts to con- trol them have ancient origins,2 most theft before the Industrial Revolution was committed for immediate consumption by the thieves and their accomplices rather than for redistribution in the market- place.3 Society's small population, inadequate transportation and * Professor of Law, Cornell Law School, and Director of the Cornell Institute on Organized Crime.-Ed. ** Deputy State Attorney, Burlington, Vt. A.B. 1972, J.D. 1975, Cornell Univer- sity.-Ed. t These materials originated in work begun during the processing of S.13, 93d Cong. 1st Sess. (1973); S. REP. No. 93-80, 93d Cong., 1st Sess. (1973). The bill passed the Senate by a vote of 81 to 0 in 1972 as S.16, 92d Cong., 2d Sess. (1972) (118 CONG. REc. 29379 (1972)) and passed again in 1973 by a voice vote (119 CONG. REc. 10319 (1973)). No action was taken in the House Judiciary Committee, "not . [because of] a lack of support for the bill but . [because of] the com- mittee's heavy work load." N.Y. Times, May 5, 1974, at 69, col. 3 (late city ed.). New legislation was not introduced in the 94th Congress. 1. Chasan, Good Fences Make Bad Neighbors, N.Y. Times, Dec. 29, 1974, § 6 (Magazine), at 12. 2. Biblical tradition has it that disobedience began with God's first command to man. See Genesis 2:16-17, 3:4-6. Laws concerning theft and robbery may be found in many sections of the Old Testament. See, e.g., Exodus 22:1-4; Leviticus 6:1-5, 19:13; Proverbs 29:24. For a discussion of theft in primitive society, see A. DIA- MoND, THE EVOLUnON OF LAW AND ORDER 12, 35, 50-51, 108-15 (1951). 3. "Until the seventeenth century the amount of movable property available for theft and the opportunities to dispose of this property except by personal consumption 1512 August 1976] Criminal Distribution of Stolen Property 1513 communication systems, and technological inability to mass produce identical goods constrained large-scale fencing because there were few buyers and because stolen property could be readily identified.' The unprecedented economic5 and demographic 6 growth in eight- eehth-century Europe, however, removed these practical constraints and made possible the profitable fencing operations7 that are now firmly institutionalized in industrial societies. Although these social and technological developments are impor- tant, they do not provide a complete explanation for the rising theft rate or for the tremendous amount of property successfully redistrib- uted annually." Instead, these problems must be attributed in large part to our society's failure to identify properly the economic rela- tionship underlying theft and redistribution and, consequently, to our inability to develop successful methods of legal control. 9 An understanding of the economic causes of property theft re- quires brief consideration of the relationship between the two major participants in redistribution systems. First, there are the fences who often find it both profitable and not very risky"' to purchase were limited." Chappell & Walsh, "No Questions Asked," A Consideration of the Crime of Criminal Receiving, 20 CIME & DELINQUENCY 157, 160 (1974) [here- inafter Chappell & Walsh, "No Questions Asked"]. 4. Prior to the development of mass production techniques, a fence was faced with "the situation of highly individualized property owned on a limited scale. .. ." Id. at 168. Limited production and limited ownership foreclosed the possibility of fencing stolen goods on a large scale because there were too few buyers, and property could be too readily identified. See generally P. MANToux, THE INDUSTEIAL REVOLU- TION IN THE EIGHTEENTH CENTURY 108-12 (rev. ed. 1961). 5. Eighteenth century England experienced an expansion of trade that was of "geometric proportions." J. HALL, THFxr, LA W AND SOCIETY 77 (2d ed. 1952). See P. MANTOIrX, supra note 4, at 99-108. See generally H. BEALEs, THE INDUsTRIAL REVoLUTtoN 1780-1850: AN INTRODUCTORY ESSAY 48-56 (1958). 6. See M. FLINN, AN ECONOMIC AND SOCIAL HIsTORY OF BRITAIN, 1066-1939, at 115 (1965) and B. MUPHY, A HisroRY OF THE BRITISH ECONOMY 1086-1970, at 61-62, 100-01, 229-33, 324-34 (1973) (describing dramatic growth of British popula- tion). During this period the world population experienced similar growth. See K. ClEN, WORLD POPULATION GRowTH AND LitiNG STANDARDS 64 (1960). 7. "[fModay's fence . faces an economy in which imperceptibly differing con- sumer goods are mass-produced and mass-owned and for which there seems to be an insatiable desire." Chappel & Walsh, "No Questions Asked," 168. "The relative im- personality of property items, and the lack of adequate identifying marks on most categories of goods, frequently prevents the establishment of a nexus between the fence and stolen property items, or the return of recovered property to its original owner." Chappell & Walsh, Receiving Stolen Property: The Need for Systemic Inquiry into the Fencing Process, 11 CRIMINOLOGY 484, 490 (1974) [hereinafter Chappell & Walsh, Receiving Stolen Property]. 8. See Hearings on Criminal Redistribution (Fencing) Systems Before the Senate Select Comm. on Small Business, 93d Cong., 1st Sess., pt. 1 (1973) [hereinafter Hearingson Fencing]. 9. See section H infra. 10. See text at notes 22-29 infra. 1514 Michigan Law Review [Vol. 74:1511 stolen goods from thieves and resell them at retail and wholesale levels. Frequently masquerading as legitimate businessmen, 1 so- phisticated fences not only use cheap stolen merchandise to increase their profits and to undercut legitimate competitors,'2 but also operate without much risk of detection since they can easily remove identify- ing labels from the goods, falsify records to hide illegal purchases, or otherwise "legitimize" the goods, and then quickly dispose of them in the marketplace.13 Second, there are the thieves who, with the growth of viable fencing schemes, have available purchasers for their stolen property. Thus, they too can rapidly dispose of the evi- dence of their crimes