U.S. v. Donato-Morales

• Decision Date: 02 September 2004
• Docket Number: No. 03-2062.,03-2062.
• Citation: 382 F.3d 42
• Parties: UNITED STATES of America, Appellee, v. Juan J. DONATO-MORALES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 42

382 F.3d 42

UNITED STATES of America, Appellee, v. Juan J. DONATO-MORALES, Defendant, Appellant.

No. 03-2062.

United States Court of Appeals, First Circuit.

Heard May 6, 2004.

Decided September 2, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Joseph A. DiClerico, Jr.,^* J Harry Anduze-Montaño, for appellant.

Vernon Benét Miles, Assistant United States Attorney, with whom H.S. García, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, were on brief, for appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

After a bench trial, Juan Donato-Morales, then a United States Marshal, was convicted of larceny from the United States, 18 U.S.C. § 641, for shoplifting a videocassette recorder (VCR) at the Fort Buchanan Army and Air Force Exchange Service (AAFES) in Puerto Rico. The government introduced in evidence a surveillance video that showed Donato, sequentially, taking one VCR out of its box and placing it on the shelf, while placing the empty box on the floor. He then took a second and different VCR out of its box, placed it into the box of the first VCR, and put the second box back on the shelf. He then took the first VCR's box with the second VCR in it to the checkout and paid for it. In doing so he paid $99, the sale price on a $129 Mitsubishi HS-U445 VCR ("445"), while receiving a $189 Mitsubishi HS-U746 VCR ("746"). After he paid and as he attempted to leave the store, he was intercepted and questioned. His answers were not consistent with the surveillance video. He was ultimately charged and convicted.

Donato challenges his conviction on sufficiency of evidence grounds, both overall sufficiency and sufficiency as to intent. Section 641 requires, inter alia, that the defendant had specific intent to steal a "thing of value." See id.; Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The question of intent is a question of fact for the trier of fact. Id. at 274, 72 S.Ct. 240. Donato argues that the government has not demonstrated beyond a reasonable doubt that he knew the 445 VCR cost less than the 746 VCR and, hence, that he had specific intent to steal a "thing of value." The price of the 746 VCR was not marked on the box, and the government submitted no evidence that the price for that model was displayed anywhere else. However the original price and sale price of the 445 VCR were marked on its box. Donato also argues to us,¹ as he did to the trier of fact, that as a U.S. Marshal he knew there was a surveillance camera at the store, and that as a result the evidence should be interpreted to mean he lacked the intent required because he would not have shoplifted with a surveillance camera operating.

We reject Donato's arguments. On the basis of the video, which shows a purposeful transfer of the more expensive VCR to a box that contained the less expensive VCR, and on the basis of Donato's subsequent statements to the AAFES security officer, to the military police, and in his trial testimony, which are inconsistent with the video and the testimony of other witnesses, we cannot say a reasonable factfinder could not conclude beyond a reasonable doubt that Donato switched the VCRs with the intent to steal something of value. Accordingly, we affirm.

I.

On January 4, 2003, Donato went to the AAFES to buy a VCR. He testified that he needed a VCR with an S-video input, so that he could transfer his daughter's wedding video from his brother's video camera onto tape. S-video is a technology for transferring video images between video cameras, game consoles, televisions, computer monitors, and the like; when images are to be displayed on a television screen, those transferred using S-video will be sharper. See Webopedia, Definition of S-video, at http://www.webopedia.com/TERM/S/S—Video.html.

Mark Montalvo, a store employee, testified that, at a time before the events shown in the surveillance video, he opened a box containing a Mitsubishi VCR for Donato and showed Donato the S-video input jack in the back of the VCR. Donato, Montalvo testified, seemed "pleased" with what he saw, and their conversation ended. Although Montalvo could not remember the precise model number of the Mitsubishi VCR he showed Donato, he identified it as the one that Donato ultimately selected, i.e., the 746. Montalvo further testified that he had said "[n]othing" to Donato concerning the opening of boxes and that store policy required a sales associate to be present when customers opened merchandise.

Donato's testimony contradicted Montalvo's. Donato denied that Montalvo showed him a VCR with an S-video input and also claimed that Montalvo gave him permission to open VCR boxes on his own to check for S-video inputs.

After speaking to Montalvo, Donato continued shopping and put a different VCR, a Sony N88 that Montalvo testified cost approximately $99, in his shopping cart. Donato's next moves were captured on surveillance video. Donato removed a Mitsubishi HS-U445 VCR, which did not have an S-video input, from its box and packaging, inspected it, and left the VCR unit on the display shelf. The 445 box (which was admitted in evidence) had both a $129 price sticker and a $99 price sticker on it. Donato put the 445 VCR box, with the foam packaging still inside, on the floor, leaving the VCR itself on the shelf. Donato then pulled the Mitsubishi HS-U746 VCR box from the bottom shelf and placed it onto the floor just next to the 445 box; he then sliced opened the 746 box. The 746 VCR, which cost $189,² did not have a price sticker on it. At this point, the 746 and 445 VCR boxes were next to each other; the 445 box had only foam packaging inside and the 746 box still had its VCR in it. Donato paused for several seconds, looking back and forth between the two boxes, and then removed the foam packaging from the 445 box, leaving it completely empty.

Donato next removed the 746 VCR from its box with its foam packaging and wrapper intact. The wrapper, which was semi-opaque, covered the entire VCR. At no point did Donato remove the wrapper to examine the VCR or attempt to look at the VCR through the wrapper. Instead, Donato briefly examined the cover of the 746 manual. That cover did not expressly indicate that the VCR had an S-video input.³ Donato also examined a plastic bag with the cables and controls of the 746 for approximately three seconds. The controls of the 445 and 746 look identical, as do three of the four cables included with each VCR. The end of the black cable for the 746, though, is slightly different from its counterpart in the 445: the end of the 746 cable is about half a centimeter longer and has more pins inside it. Donato then put the 746 VCR, still unexamined and intact in its foam packaging and wrapper, into the 445 box, picked up that box, and put it into his shopping cart. The entire process of switching the two VCRs was completed in just over three minutes.

Donato then gathered up the foam packaging, manual, controls, and cables for the 445 VCR, put them in the 746 box, and returned that box to the shelf. He put the Sony VCR that had been in his shopping cart on the shelf as well and began pushing his cart down the aisle.

The 445 VCR box, with the 746 VCR inside it, was sitting open in his shopping cart with the 746 manual lying face-up on top. "Model HS-U746" is printed in approximately 30 point font in the center of the 746 manual cover. When Donato first opened the 746 box, the manual had been lying flat on top. Montalvo confirmed in his trial testimony that this is the typical placement of the manual in most VCRs. In the video, Donato is shown folding the 746 manual and stuffing it down the side of the box, where its cover was no longer visible, before leaving the area. At trial, in contradiction to the video, Donato denied that he had stuck the manual down the side of the box and insisted that the manual had been in "plain view on top of the VCR."

Once outside the aisle, Donato is shown speaking for two or three seconds to Mark Montalvo. Donato testified that he asked Montalvo if it was a problem that the box was open, and that Montalvo closed the box and said that it was not a problem because the cashier at the checkout counter was "going to check the box anyway." Donato is then shown pushing the cart away, pressing on the top of the box to keep it closed.

After wandering around the store for another ten minutes and picking up some other items, Donato proceeded to check out at the jewelry counter. At no point in the video did Donato place the VCR on the checkout counter or otherwise hand it to the cashier. During the entire checkout process, he kept the VCR in the shopping cart, and until he signed the credit card receipt, he kept his arm draped over the top of the box, holding it closed. Donato ultimately paid $99 for the VCR. He testified that the cashier told him that the VCR was discounted by $30 from its $129 price, but that he had not been aware of the discount until then. On cross-examination, Donato said that he had "turned the box around" so the cashier could "look[] at the price." The surveillance video shows that when Donato first approached the checkout counter, the $129 price faced the cashier, but he later turned the box so that the side with the $99 price faced the cashier instead.

Donato was apprehended at the exit by AAFES security officer Nelson Colon, who had been observing Donato on the surveillance video. Colon asked for Donato's identification and his receipt. Donato showed his Marshal's identification and the receipt; the two then went to a small security office. Colon testified that when he confronted Donato about the fact that Donato had switched the VCRs and that the wrong VCR was in the box, Donato "said it was probably a mistake." Colon further testified that he "asked [Donato] if he had a chance to switch...