U.S. v. Larracuente

• Decision Date: 03 January 1992
• Docket Number: No. 371,D,371
• Citation: 952 F.2d 672
• Parties: 1992 Copr.L.Dec. P 26,843, 21 U.S.P.Q.2d 1700 UNITED STATES of America, Appellee, v. Julio LARRACUENTE, Defendant-Appellant. ocket 91-1309.
• Court: U.S. Court of Appeals — Second Circuit

Page 672

952 F.2d 672

1992 Copr.L.Dec. P 26,843, 21 U.S.P.Q.2d 1700

UNITED STATES of America, Appellee, v. Julio LARRACUENTE, Defendant-Appellant.

No. 371, Docket 91-1309.

United States Court of Appeals, Second Circuit.

Argued Nov. 15, 1991.

Decided Jan. 3, 1992.

Paul W. Siegert and Hector A. Martinez, New York City, submitted a brief for defendant-appellant.

Jeffrey R. Toobin, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. and Matthew E. Fishbein, Asst. U.S. Atty., on the brief), for appellee.

Before VAN GRAAFEILAND, NEWMAN, and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal presents issues concerning a conviction and a sentence for criminal copyright infringement--trafficking in so-called "bootleg" videotapes of movies. Julio Larracuente appeals from the May 3, 1991, judgment of the District Court for the Eastern District of New York (Carol Bagley Amon, Judge) convicting him of substantive and conspiracy copyright offenses in violation of 17 U.S.C. §§ 106(1), 506(a), (b) (1988) and 18 U.S.C. §§ 371, 2319(b)(1)(B) (1988). Appellant challenges the conviction for lack of evidence that the copyright owners retained their exclusive rights and for insufficient evidence of his criminal conduct, and he challenges the sentence on the ground that the value of the bootleg tapes under the Sentencing Guidelines should have been based on their price in the market for bootleg tapes. We reject his claims and affirm.

Facts

Larracuente owns and operates a store that rents videocassettes. After an investigator from the Motion Picture Association of America identified tapes rented from the store as counterfeit, surveillance of Larracuente was begun, first by the investigator and later by an F.B.I. agent. On different occasions, Larracuente was observed unloading boxes of blank videotapes from his car into his home and moments later emerging with different boxes of videocassettes, which he placed in his car and unloaded at his store. Sometimes, another person was observed helping appellant with this activity. A search of the home, conducted pursuant to a warrant, disclosed a video counterfeiting laboratory--78 VCRs, 1,670 counterfeit videocassettes of movies, hundreds of covers and stickers for videocassettes, and various videotape copying equipment.

At trial, the Government and the defendant stipulated that, with respect to 41 of the films seized from appellant's house, the copyrights were owned by individuals and businesses other than the defendant and that the copyright owners had not authorized the defendant to reproduce the films. Because of the defendant's objection, the stipulation did not include a statement, proposed by the Government, that the copyright owners "have and had the exclusive right to reproduce, rent and sell the copyrighted motion pictures."

In addition to convicting the defendant of both the substantive and conspiracy offenses, the jury, in answer to an interrogatory, found that the defendant had copied at least 65 copies of copyrighted films within a 180-day period, the statutory threshold for punishment of up to five years' imprisonment and a fine of up to $250,000. 18 U.S.C. § 2319(b)(1)(B).

Discussion

1. Appellant contends that the evidence was fatally deficient for lack of proof tending to foreclose the possibility that he had been authorized to reproduce the films by licensees of the copyright owners. The stipulation established that the copyright owners had given appellant no authorization, but neither the stipulation nor other evidence precluded the possibility of licenses to third-parties and sub-licenses to appellant.

Though the Government's burden in a criminal copyright infringement case is to persuade beyond a reasonable doubt, we see no reason why the elements to be proven are more than those in a civil copyright infringement case--ownership of a valid copyright and copying. See Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). If the accused infringer has been licensed by a licensee of the copyright owner, that is a matter of affirmative defense. See Oddo v. Ries, 743 F.2d 630, 634 n. 6 (9th Cir.1984); William F. Patry, Latman's The Copyright Law 274 (6th ed. 1986). Even if absence of a sub-license could be considered an element of the offense, the defendant would bear the burden of producing some evidence of a sub-license before the prosecution would have to negate the element beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 701 n. 28, 95 S.Ct. 1881, 1891 n. 28, 44 L.Ed.2d 508 (1975) (approving state rules requiring defendant to produce some evidence that he acted in the heat of passion before prosecution must negate that mental state beyond a reasonable doubt). That is the approach the Eleventh Circuit has taken with the somewhat similar defense of "first sale," see 17 U.S.C. § 109(a) (1988), obliging the defendant to produce some evidence that the copies were legally made. See United States v. Goss, 803 F.2d 638, 644 (11th Cir.1986). Evidence of sub-licensing is obviously readily available to a sub-licensee. Without such...