U.S. v. Brookins, 94-1918

• Citation: 52 F.3d 615
• Decision Date: 04 April 1995
• Docket Number: No. 94-1918,94-1918
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shon BROOKINS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 615

52 F.3d 615

UNITED STATES of America, Plaintiff-Appellee, v. Shon BROOKINS, Defendant-Appellant.

No. 94-1918.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 20, 1995.

Decided April 4, 1995.

James A. Shapiro, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cr. Div., and Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Atty., Cr. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Stuart K. Jones (argued), Chicago, IL, for defendant-appellant.

Before POSNER, Chief Judge, FLAUM, Circuit Judge, and McDADE, District Judge. ^*

McDADE, District Judge.

After a bench trial, Shon Brookins ("Brookins"), appellant, was convicted under 18 U.S.C. Sec. 659 for breaking into, stealing or unlawfully taking, carrying away or concealing a camcorder from baggage in interstate shipping and under 18 U.S.C. Sec. 371 for conspiracy to commit that offense. Brookins appeals his conviction claiming that the government failed to prove him guilty beyond a reasonable doubt. Finding no merit in any of Brookins' claims, we affirm his conviction.

BACKGROUND

Brookins' conviction arises out of the Federal Bureau of Investigation's ("FBI") "Operation Rampcheck," an undercover investigation of theft by baggage handlers in the airline industry. Working undercover, Special Agent Norman Embry ("Embry") worked as a baggage handler for Dynair Maintenance Corporation which transports baggage from international flights to connecting domestic flights at O'Hare Airport.

On September 10, 1989, Embry and Brookins delivered baggage from the international terminal to connecting domestic flights at the United Airlines terminal. Embry commented to Brookins that a certain piece of baggage appeared to contain expensive camera equipment. According to Embry, the tag on this bag indicated that it came from an international flight connecting to a United domestic flight. After Embry's comment, Brookins went over to get a closer look at the bag. Brookins then pushed the bag back on the truck rather than unloading it at the United terminal.

After unloading the remaining baggage for United Airlines, Embry and Brookins returned to the truck and drove to the Delta Airlines baggage belt. The Delta baggage area is more secluded than the other baggage areas. At the Delta area, Brookins opened the bag--for a closer inspection--exposing a Panasonic video camera. Brookins closed the bag, left it on the truck, and he and Embry drove back to the international baggage area.

Back at the international baggage area, Embry activated a tape recorder hidden on his body and recorded a conversation between Brookins, Bobby Morgan (a co-worker and an unindicted co-conspirator named in the Indictment), Mike White (a co-worker and unindicted co-conspirator not named in the Indictment), and himself. Morgan offered Subsequently, Brookins indicated that he knew people who would pay, at least, $400 for the camera. Brookins stated that he could trade the camera for "dope or money or both." Embry understood Brookins' comment to mean that Brookins was competing with him to raise the negotiated price of the camera and that Brookins would sell the camera to drug dealers if Embry refused to meet that price. After this conversation, Morgan put the camera into his personal gym bag and placed the bag into the cab of the truck he was driving.

to sell Embry the Panasonic video camera--which Brookins took from its intended destination at the United terminal--for $350. Embry made a counter-offer for $300. In response, Morgan stated that such cameras sell for $600 "straight up," and that the camera was brand new. Embry offered $325. Nevertheless, Morgan refused to accept anything less than $350, and Embry eventually agreed to that price.

Later that day, Embry recorded a conversation between Mike White and himself. White told Embry that "Nick," a Dynair supervisor who was not a member of the conspiracy, questioned Brookins and White about Morgan's gym bag containing the stolen camera. Nick asked Brookins if the bag was his. At first, Brookins stated that the bag did not belong to him. By shaking his head as a form of a signal, however, White indicated that Brookins should claim that it was his bag. Brookins then changed his answer and stated that he owned the bag. White explained that he thought that if Brookins continued to deny ownership, Nick would check the bag catching Brookins and Morgan with the stolen camera. Except for two instances during this transcribed conversation, White refers to a person named "John" rather than "Shon"--Brookins' first name. ¹ Embry testified at trial that even though the tape sounded like "John,"--and he transcribed it as it sounded--White was actually referring to Brookins.

On May 21, 1992, the Grand Jury returned a four-count Indictment charging Brookins with stealing goods from baggage at O'Hare. On August 10, 1992, having waived his right to a jury trial, Brookins' bench trial began. At the beginning of the trial, the United States moved to dismiss Counts Three and Four. ² This motion was granted. Therefore, Brookins was tried on conspiring to steal a Panasonic video camera from baggage at O'Hare, in violation of 18 U.S.C. Sec. 371, and breaking into and stealing a Panasonic video camera from baggage in violation of 18 U.S.C. Sec. 659. On August 11, 1992, the court found Brookins guilty on both charges. Apparently, the district judge was not requested to find the facts specifically pursuant to Rule 23(c) of the Federal Rules of Civil Procedure. However, the district judge did make the following factual findings:

The Court finds as a matter of fact that there is a sufficient basis to believe on the basis of the negotiations and the conversation about the newness of the camcorder and its condition and its value that it was in excess of $100 and that it was in the possession of a common carrier, and it was part of the conspiracy that Brookins did take the camcorder and they did agree to--and negotiated to dispose of it.

And in addition to that, the Court finds that the overt acts necessary to be proven were proven and so the defendant is found guilty ...

On January, 5, 1993, the court sentenced Brookins to two months in prison followed by two years of supervised release.

ANALYSIS

Brookins challenges the sufficiency of the evidence leading to his conviction for conspiring to steal from interstate baggage under 18 U.S.C. Sec. 371, and breaking into and stealing from interstate baggage under 18 U.S.C. Sec. 659. Brookins asserts that the evidence was insufficient to establish (1) that the value of the camera exceeded $100, the minimum statutory amount to support a felony conviction under 18 U.S.C. Sec. 659; (2) that he had dominion and control over the camera as required by 18 U.S.C. Sec. 659; and (3) that he conspired to steal a camera in violation of 18 U.S.C. Sec. 659 and 18 U.S.C. Sec. 371. Brookins also contends that his conviction for conspiracy under 18 U.S.C. Sec. 371 should be reversed because the trial court improperly admitted an alleged co-conspirator's hearsay statement implicating Brookins in the conspiracy.

A. SUFFICIENCY OF THE EVIDENCE

The proper standard of review for a claim regarding the sufficiency of the evidence is "[viewing] the evidence in a light most favorable to the government, we must determine whether a rational trier of fact could have found beyond a reasonable doubt, the essential elements of the crime charged." United States v. Williams, 31 F.3d 522, 525 (7th Cir.1994) (citing United States v. Donovan, 24 F.3d 908, 913 (7th Cir.1994)). "We will not reweigh the evidence or reassess the credibility of witnesses, but will overturn a conviction '[o]nly when the record contains no evidence regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.' " United States v. DeCorte, 851 F.2d 948, 952 (7th Cir.1988) (quoting United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983)). Our inquiry is limited to whether a fact finder could determine that the evidence establishes guilt beyond a reasonable doubt. United States v. Briscoe, 896 F.2d 1476, 1504 (7th Cir.), cert. denied sub nom., Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). Therefore, every reasonable hypothesis of innocence need not be excluded nor does guilt need to be the only reasonable conclusion. United States v. Duarte, 1 F.3d 644, 649 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 724, 126 L.Ed.2d 688 (1994).

1. The Value of the Camera

Brookins asserts that the United States failed to establish that the value of the camera was $100. ³ Under section 659, a defendant may only be convicted of a felony if the value of the stolen property is, at least, $100. If the value of the property is less than $100, a defendant may only be convicted of a misdemeanor. Under section 659, "value" is defined as "face par or market value, or cost price, either wholesale or retail, whichever is greater." United States v. Ditata, 469 F.2d 1270, 1273 n. 3 (7th Cir.1972). In Ditata, this Court considered 18 U.S.C. Sec. 641--containing a value requirement similar to section 659--to define value within the meaning of section 659. Id. at 1273. Subsequently, this Court held that the definition of "market value" employed in 18 U.S.C. Sec. 2311 "is equally applicable to Sec. 641." United States v. Oberhardt, 887 F.2d 790, 793 (7th Cir.1989). Therefore, referring to cases defining "value" under 18 U.S.C. Sec. 641 and 18 U.S.C. Sec. 2311 is appropriate for defining "value" under section 659.

This Court measures the "market value" of stolen goods as "the price a willing buyer will pay a willing seller either at the time and the place the property was stolen or at any time during the receipt or concealment of the property." United States v. Bakken, 734 F.2d 1273, 1278 (7th Cir.1984). Furthermore, the Court allows the use of a "thieves' market" as "an appropriate method for...