Abbott v. United States, 15962.

• Decision Date: 19 December 1956
• Docket Number: No. 15962.,15962.
• Citation: 239 F.2d 310
• Parties: Wayne Rosser ABBOTT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F.2d 310 (1956)

Wayne Rosser ABBOTT, Appellant, v. UNITED STATES of America, Appellee.

No. 15962.

United States Court of Appeals Fifth Circuit.

December 19, 1956.

James H. Martin, Dallas, Tex., Chas. C. Crenshaw, Lubbock, Tex., Joe H. Jones, Dallas, Tex., Crenshaw, Dupree & Milam, Lubbock, Tex., for appellant.

William O. Braeklein, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before CAMERON, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Abbott, convicted for interstate transportation of a stolen geophysical map having a value exceeding $5,000.00, 18 U.S.C.A. § 2314, and use of the mails to defraud, 18 U.S.C.A. § 1341, appeals from a single sentence, urging primarily that motion for judgment of acquittal ought to have been granted for insufficient evidence on (1) value and interstate transportation under Section 2314, and (2) substantial use of the mails to execute a fraudulent scheme under Section 1341.

Despite vigorous denials by Abbott and many circumstances pointing toward innocence, there was substantial evidence from which, in weighing the conflicts, the jury could find Abbott to have been, if not the moving spirit, at least the willing beneficiary and financier of a plan by which he got prints of geophysical maps stolen from Magnolia Petroleum Company.

The arrangement came into being this way: Morgan, employed then as a draftsman by Magnolia but having no access to maps or exploratory information, persuaded Fox, employed in Magnolia's Blue Print Department, to supply Morgan an extra copy of prints of geophysical reflection survey maps as they were from time to time ordered by various departments of Magnolia. Morgan told Fox that he thought he knew a man willing to pay substantial sums for such prints. He had in mind Abbott, a young business man bearing a good reputation in Oklahoma City, engaged as a consultant and trader for his own account in working up and exploiting typical trades for acreage, mineral interests, drilling of wells, farm outs and the like. In March 1951, at Dallas, Morgan took to Abbott a print from Fox as a sample. Abbott paid Morgan some $300.00 in cash for that print and agreed to pay him $350.00 per month thereafter. For this Morgan was to supply as many maps as his "contact" could furnish. Morgan, turning over one-half of this cash to Fox, agreed to pay Fox $150.00 each month. The arrangement continued until sometime in 1953, Abbott paying some $3,000.00 to $4,000.00 to Morgan, and Morgan paying about $1,500.00 to Fox. A total of twenty to forty prints were purloined.

Fox's part was simple: he knew nothing of the intrinsic significance of any maps and none was under his custody except while making extra prints ordered specifically from time to time by various officials or departments of Magnolia. He automatically made an extra print, surreptitiously removed it from Magnolia's office building, and delivered it to Morgan.

Morgan, holding none for more than a week, delivered to Abbott, in person or by mail, all of the prints supplied by Fox. Several of the prints were later seen in Abbott's possession, and the print, or a copy of it, specified in the count under Section 2314, was in his office in Oklahoma City. Abbott's use of at least one of these prints as a basis for overlays subsequently employed by his associates to procure leases in the area, and use of another in conferences resulting in a farm-out trade, manifested his estimate of the practical value of these map prints.

So far as Section 2314 is concerned, we agree that the judgment of acquittal should have been entered. This count specified, as it had to, a particular map print of a specific area. The record adequately proving its purloining by Fox, transfer to Morgan, and furnishing by him to Abbott was yet completely negative on interstate transportation from Texas to Oklahoma. Who carried it, or how, or who caused it to be transported was nowhere proved. Since it was undisputed that by the auto-positive process additional blue-line Ozalid prints could be made from the stolen prints, the mere physical presence of the print in Oklahoma City was insufficient to establish that it was Abbott, or one instructed by him, who carried or caused it to be transported.

Transportation interstate, which alone creates the Federal crime, was an indispensable ingredient. So too, was value in excess of $5,000.00. Congress has prescribed the exclusive criteria for value, 18 U.S.C.A. § 2311:

"`Value\' means the face, par, or market value, which ever is the greatest, and the aggregate value of all goods, wares, and merchandise, securities, and money referred to in a single indictment shall constitute the value thereof."

But the Government never established either that there was a market for the sale, purchase and trade in prints of geophysical maps or a market value. One witness put the value at not less than fifty thousand dollars and perhaps as high as two hundred thousand, but it was positive that his criteria was the cost to Magnolia for the geophysical exploratory work represented by the maps or its "value" to oil lease traders and promoters in working up trades for that area. If this was intrinsic or actual value, and that is extremely doubtful, it was certainly not market value, for even the one geophysicist whose words were in terms of a "market" ($10,000.00 or more) acknowledged categorically that he knew of no market for their sale in the well-defined meaning of that term. Indeed, the Court sustained objections to his testimony on "market" value, because of his candid disqualification. His subsequent loose use of the words "market value" could not, in the face of that objection and proper ruling, amount to proof on such an essential element.

Congress plainly restricted value to three well-understood standards. Mere cost of production, cost of replacement, value to the owner, value to one who might have use of it under certain special circumstances, whatever else it might be, is not market value. For that value — market — depends on a market, whether formal or informal, in which willing buyers bargain with willing sellers.

Plain language of the Congressional Act makes unnecessary, if not proscribed, a rationalization of the legislative precision in fixing the kind of values. But it is not lacking. The very requirement of a $5,000.00 value points towards a Congressional purpose carefully to limit the Federal sanction in theft of nonambulatory things to those having a substantial worth. To have prescribed actual or intrinsic value as a test would have but multiplied uncertainties in which worth would, or might be, fixed by undulating elusive factors of which personal sentimental attachment, collateral cost of production, unique value to a particular person are but typical.

But the matter stands differently when it comes to the mail fraud, 18 U.S. C.A. § 1341, count in which the pleading description of the scheme to defraud was an abbreviated paraphrase of the evidence summarized above followed then by a specific charge that, in its furtherance, the mails were used by Abbott on December 15, 1951, to transmit a letter and two "payment" checks to Morgan. Sending the letter¹ and checks was admitted, but Abbott's explanation, rejected by the jury, was that these checks were two payments for legitimate map-drafting work done by Morgan; and the reference to supplying future maps was to encourage Morgan to submit deals, or trades, or farm out propositions which, in the past, Morgan normally offered by "maps."

Abbott's contention² here is basically twofold: (1) there was no scheme to defraud Magnolia; and (2) transmission of the checks by mail was not contemplated, was incidental, and could not have furthered the execution of the scheme.

The first is, of course, palpably unfounded. For Magnolia Petroleum Company was, in fact, and in a very real sense, defrauded. It had, at great expense, for its own proper use, undertaken geophysical surveys and prepared maps reflecting the information gathered and evaluated³ by trained scientists. These were papers of almost inestimable practical value in the essential program of continuous exploration and development of mineral resources which is the life blood of an oil producing company. On them it could make its plans and the very act of reproducing extra copies (which gave Fox access) was to enable a project to be executed. Additionally, they had a "negative" value which continued only so long as they were the confidential information of the company, and which was lost or diminished the moment a map fell into the hands of an outsider who, in anticipation that the company might undertake development, could move swiftly into the area, procure leases, and impede or thwart the company's plans.

This scheme had as its...