U.S. v. Bigelow

• Decision Date: 02 November 1983
• Docket Number: No. 83-5044,83-5044
• Citation: 728 F.2d 412
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Bobby BIGELOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 412

728 F.2d 412

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Bobby BIGELOW, Defendant-Appellant.

No. 83-5044.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 2, 1983. ^*

March 16, 1984.

Christine Byrd, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Arthur Mabry, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before TANG, FERGUSON and BOOCHEVER, Circuit Judges.

TANG, Circuit Judge.

Ernest Bobby Bigelow appeals his conviction for illegal sale of government property in violation of 18 U.S.C. Sec. 641. He contends that the evidence was insufficient either to sustain the guilty verdict or the jury's finding that the property's value exceeded $100, the minimum amount necessary for a felony conviction. Bigelow was sentenced to five years imprisonment.

After learning that the appellant possessed the stolen credential of an Internal Revenue Service agent, IRS Internal Security dispatched undercover agent Douglas Creer to attempt a purchase of the stolen credential from the appellant. An informant arranged a meeting between Agent Creer and the appellant at a Denny's restaurant. There, Creer offered appellant $200 for the credential which appellant refused. Creer then offered $250 which the appellant took and placed in his pocket as Creer picked up the credential and placed it in his jacket pocket.

Appellant first contends that the evidence was insufficient to support the jury's finding that he sold government property. A conviction will not be reversed if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A conviction for illegal sale of government property requires a jury to find that the defendant, knowingly and without authority, sold, conveyed, or disposed of government property. 18 U.S.C. Sec. 641. Appellant claims that no sale occurred because he believed he was transferring the credential as part of a temporary operation or scam through which he would receive part of any derived proceeds. While he acknowledges receipt of $250 from the agent, appellant argues that the money was a loan instead of payment in exchange for the credential. The government, however, presented sufficient evidence to prove that a sale occurred. The government's informant testified that Bigelow told him that he wanted to sell the credential. Agent Creer also testified that he had informed Bigelow that he wanted to buy the credential, and that Bigelow had indicated his desire to profit from the proposed transaction. The jury weighed the credibility of the testimony presented and concluded that a sale of the stolen credential had taken place. We conclude there was sufficient evidence to persuade a rational trier of fact that the elements of the crime were proven beyond a reasonable doubt.

Appellant further contends, however, that even if there is sufficient evidence to sustain his conviction for the underlying substantive offense, the evidence was insufficient to support a finding of the value of the credential in excess of $100. Bigelow argues that his...