U.S. v. Hill

• Decision Date: 22 December 1987
• Docket Number: No. 86-2860,86-2860
• Citation: 835 F.2d 759
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Jordan HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 759

835 F.2d 759

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Jordan HILL, Defendant-Appellant.

No. 86-2860.

United States Court of Appeals Tenth Circuit.

Dec. 22, 1987.

David J. Phillips, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief), Kansas City, Kan., for defendant-appellant.

Robert S. Streepy, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., with him on the brief), Kansas City, Kan., for plaintiff-appellee.

Before MOORE, McWILLIAMS, and BALDOCK, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Defendant Curtis Jordan Hill appeals his conviction for the crime of stealing property of the government, 18 U.S.C. Sec. 641. The objects of the charged theft were money and an automobile belonging to the United States. With commendable candor, defendant acknowledges his dominion over this property may have been illegal, and perhaps even criminal, but he contends that even so, he could not be guilty of the offense charged as a matter of law. He argues that because he did not unlawfully come into possession of the property in the first instance, by definition his offense could not have been stealing. We agree and reverse.

In the summer of 1986, defendant approached agents of the Drug Enforcement Administration with an offer to aid them in their efforts to bring to ground drug dealers in Kansas City. He told them of his past dissolute life-style and his resolve to transform himself into a worthy citizen. As a vehicle to achieve this endeavor, he suggested he could trade upon his experience amidst drug purveyors to ferret out targets for the DEA.

Intrigued by this suggestion, the agents offered Mr. Hill an opportunity to prove his worth. After making clear that Mr. Hill would not become an agent of the government, the officers agreed to an arrangement whereby Mr. Hill would make drug buys and testify in exchange for compensation. Armed with that agreement and suitable instructions, Mr. Hill set out on his first venture.

As luck would have it though, Mr. Hill did not artfully conclude the transaction which ensued. The details of the misadventure are not important here; therefore, suffice it that Mr. Hill was given $600 with which he purchased cocaine from the spouse of a known dealer. To his misfortune, however, the dealer later accused Mr. Hill of stealing more cocaine from him. Because of his resultant discomfiture, Mr. Hill removed himself to another city to await the return of serenity.

At the urging of one of the agents, Mr. Hill agreed to come back to Kansas City and make one more purchase to seal the government's case against the dealer. After considering the proposition, Mr. Hill called the agents and told them he agreed. He further stated he had contacted the dealer and resolved matters with him. All Mr. Hill had to do was pay the dealer $800 to exonerate a debt he owed the dealer, and Mr. Hill could make another purchase. With the consent of the agents, Mr. Hill arranged to buy one ounce of cocaine for $2,000. It was planned that after the purchase agents would execute a search warrant and arrest the dealer.

Mr. Hill flew to Kansas City and was met by agents at the airport to finalize plans for the buy. During the course of conversation, consideration was given to the means by which Mr. Hill was going to drive to the dealer's location. After some discussion, it was agreed that it would look better if Mr. Hill drove alone. Since Mr. Hill had no car of his own, the agents also decided Mr. Hill should drive the car assigned to one of them. In addition, they gave Mr. Hill $2,800 to pay his "debt" and to purchase the ounce of cocaine, together with an additional $600 as a fee for his service and reimbursement for his expenses. Mr. Hill was then told that after he made his purchase, he was to meet with the agents so they could field test the substance he bought.

Once again Mr. Hill set sail to encounter the denizens of the drug world, but his voyage was not consummated as planned. Despite strict orders to drive slowly and not to go through yellow lights, Mr. Hill chose a different course. Indeed, with seeming abandon, he sped through several yellow lights and then disappeared over the crest of a hill, leaving the trailing agents grounded upon the shoals of a red light. Although the agents tried to find Mr. Hill, their efforts were in vain, and the search was abandoned.

The following day, the government's car was discovered in a parking lot across from the University of Kansas Medical Center. Neither Mr. Hill nor the "buy money" were to be found. Four days later, however, after an apparent lost weekend, Mr. Hill appeared at DEA headquarters and surrendered himself. He was arrested on the spot.

While it does not affect the legal analysis of the case, it does complete the saga to disclose at trial Mr. Hill explained that while driving to the assignation with the dealer, he thought of what might take place and the uncertainty of his safety; consequently, he panicked and bolted out of fear. He added that because he was suffering from a toothache, he went to a dentist at the University of Kansas Medical Center where he left the car. While he could not account for the majority of the missing money, he did admit to spending some of it on drugs for his own use.

The issue here, in light of these facts, is whether the evidence supported the charge. More particularly, the question is whether Mr. Hill "stole" the government's property as that term is used in Sec. 641.

The statute upon which the charge against Mr. Hill was based states:

Whoever embezzles, steals, purloins, or knowingly converts to his use ... any ... money, or thing of value of the United States ... shall be fined ... or imprisoned....

18 U.S.C. Sec. 641 (emphasis added). Mr. Hill argues that while he might have been guilty of illegal conversion, because the agents willingly gave him possession of the money and the car, he could not be guilty of stealing.

The critical evidence is not in dispute. First, the decision to give Mr. Hill the money was solely that of the agents. Obviously, without the money Mr. Hill could not have effected the proposed drug transaction. Second, it was only after rational discussion that the agents decided to let Mr. Hill have the car.

The agent in principal charge of the case testified:

We discussed whether or not I should drive him [Mr. Hill] out there and wait in the parking lot, whether or not I should drive him out there and drop him off and then pick him up later, or whether or not he should use the car. It wasn't mandatory, all three of those things were acceptable, but we felt at first, by all of us, myself and Dave Cigich [another agent] and Mr. Hill--as we talked more about that, Mr. Hill made the suggestion it would be easier if he drove because of the fact that certain times Mr. Walters [the dealer] would come out of the building, walk him to the car, and obviously if he didn't have a car there and he knew someone was picking him up, that would make Mr. Walters paranoid....

....

We from time to time provided automobiles ... to informants for the use in negotiations and use of undercover work. It's basically used on a case-by-case basis. The point is Mr. Hill didn't beg to use the automobile. He thought it was a good idea, that it would enhance the case, and the fact that we would have--there would be no difficulty if Mr. Walters walked out with him, he wouldn't have to make excuses.

When asked by the prosecutor whether he allowed Mr. Hill to use the car "to protect the integrity of [the] investigation", the agent responded affirmatively. Thus, even though the reason for letting Mr. Hill use the car was supplied by him, there was no suggestion that the reason was false, and the decision to do so was made by the agents for their own purposes.

There is no evidence, either direct or circumstantial, which suggests the decisions to give Mr. Hill the money or the car were the product of Mr. Hill's urging or chicanery or that at the time the decisions were made, Mr. Hill did not intend to go through with the transaction. ¹ The only evidence of criminality is the circumstantial evidence devolving from the conduct of Mr. Hill after he acquired possession of the property.

Looking at the evidence in the light most favorable to the government, it is inferable that when Mr. Hill started to pull away from the agents, he wanted to evade them. This conduct supports an inference that Mr. Hill intended at that time to do something with the property other than what had been agreed upon. Mr. Hill's testimony adds the circumstance that while he intended to go through with the transaction when he received possession of the money and the car, he changed his mind afterward. This change of heart is unrefuted by any other evidence.

In the face of this evidence, the trial court instructed the jury that to "steal" means to "take away [property] from one in lawful possession without right." (Emphasis added.) ² It is upon this foundation that defendant fashioned his defense and his argument in this court that he had a lawful right to the property up to the moment he decided to apply it to a use not agreed upon by the agents. The government has no persuasive rebuttal to this argument.

The government's initial line of defense is that the jury was incorrectly instructed. The prosecution first takes the Supreme Court to task for its definition of the verb "to steal" in Morissette v. United States, 342 U.S. 246, 271, 72 S.Ct. 240, 254, 96 L.Ed. 288 (1952): "to steal means to take away from one in lawful possession without right with the intention to keep wrongfully." ³ Although the government rails against this definition, it has not been overruled. Consequently, there is no doubt of the validity of the instruction. ⁴

The government then focuses upon the breadth of the crime defined in Sec. 641 and argues that stealing is an offense not to be...