U.S. v. Moore

• Decision Date: 03 April 1978
• Docket Number: Nos. 77-1822 and 77-2015,s. 77-1822 and 77-2015
• Parties: UNITED STATES of America v. Robert MOORE, Appellant. UNITED STATES of America v. Clifford WAYMON, a/k/a John Jones, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 154

571 F.2d 154

UNITED STATES of America v. Robert MOORE, Appellant.

UNITED STATES of America v. Clifford WAYMON, a/k/a John Jones, Appellant.

Nos. 77-1822 and 77-2015.

United States Court of Appeals, Third Circuit.

Argued Jan. 4, 1978.

Decided Feb. 10, 1978.

Certiorari Denied April 3, 1978.

Douglas Riblet, Asst. Defender, Defender Association of Philadelphia, Federal Court Div., Philadelphia, Pa., for appellant Moore.

John Rogers Carroll, Carroll, Creamer, Carroll & Duffy, Thomas Colas Carroll, Philadelphia, Pa., for appellant Waymon.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Div., Bonnie Brigance Leadbetter, David R. Strawbridge, Asst. U. S. Attys., Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Appellants Clifford Waymon and Robert Moore were charged with one count of conspiracy to violate 18 U.S.C. § 2314 by transporting in interstate commerce stolen property valued in excess of $5,000, in violation of 18 U.S.C. § 371. Waymon and Moore were tried on stipulated facts to the district court sitting without a jury. The sole issue here, as well as in the district court, is whether the $5,000 jurisdictional amount requirement of 18 U.S.C. § 2314 has been met. The district court in its opinion of May 3, 1977, which adjudged the defendants guilty and denied their motions for judgments of acquittal, held that the Government had proved the necessary jurisdictional amount. We affirm.

I.

In the summer of 1976, 22,400 blank Ticketron tickets were stolen from shipments to the Jenkintown and Philadelphia branches of Gimbels Department Store. These tickets, in blank form, cost Ticketron $51.74.

A quantity (at least 2200) of the stolen tickets came into the possession of the defendants. Waymon and Moore obtained legitimate Ticketron tickets for various concerts in July, August and September, 1976. They then took the stolen blanks and the legitimate tickets to David Pope, a printer in Philadelphia. Negatives were made of the legitimate tickets, and from the negatives a block and plate was produced. The block and plate and the stolen blanks were then used to print counterfeit tickets.

The counterfeit tickets were taken from Philadelphia to various concert sites in New Jersey, Connecticut, and Massachusetts, where the tickets were sold. Some of the tickets were sold by the defendants directly to buyers at a "retail" price. Others were sold in large quantities to one Rodney Parker at a "wholesale" price.

Parker paid the defendants $3,337 for 778 tickets, which had been printed for various concerts. The defendants also sold 1072 tickets to others, presumably at "retail", for a total of $8,302.50. The combined sales made by the defendants to Parker and others resulted in revenue to the defendants of $11,639.50. Parker in turn sold the tickets which he had purchased from the defendants to concertgoers at scalper prices. It was stipulated that the overall value of all tickets those sold by Parker as well as those sold by the defendants was, as to face value in excess of $14,000, and as to the amount realized (i. e. the "market" value) over $15,000.

II.

There is no dispute that at the time the blank tickets were stolen they had an intrinsic value substantially less than $5,000. Nor is there any dispute that the tickets had a value in excess of $5,000 at the time they were transported in interstate commerce. The issue before us, therefore, presents two questions: First, may the jurisdictional amount element of 18 U.S.C. § 2314 be determined by reference to value ¹ at the time of interstate transportation, or must it be determined by reference to value at the time of theft? Second, if the jurisdictional amount can be determined using value at the time of transportation, did the defendants, in counterfeiting the tickets, alter the blank tickets so substantially that what was transported was not the same property as that which had been stolen?

A.

Section 2314 of title 18 renders it unlawful to transport "in interstate commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud . . . ." ² Some courts have held that the $5,000 requirement must be proved by value at the time of theft. See, e. g., Stern v. United States, 204 F.2d 647 (6th Cir. 1953); Herman v. United States, 289 F.2d 362 (5th Cir.), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). These cases, however, do not deal with situations such as the one in this case where the value at the time of the taking differs from the value at the time of the transportation.

In the analogous case of prosecutions brought pursuant to 18 U.S.C. § 2315 (receiving, concealing or disposing of property of the value of $5,000 or more, knowing the same to have been stolen), several courts have held that value may be determined as of the time of theft or at any time upon receipt or during concealment. See United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975); United States v. Riso, 405 F.2d 134 (7th Cir. 1968), cert. denied, 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560 (1969); United States v. Tauro, 362 F.Supp. 688 (W.D.Pa.), aff'd without opinion, 493 F.2d 1402 (3d Cir. 1973). ³ See also United States v. Kramer, 289 F.2d 909 (2d Cir. 1961) (Friendly, J.) (prosecution under 18 U.S.C. § 641 for receiving and concealing stolen postal money orders with a value in excess of $100). In Kramer the court held that it was not essential that the stolen property be worth $100 at the moment of receipt by the defendant, but that it was sufficient if the money orders attained that value at some time during their retention or concealment. Similarly, in United States v. Ditata, 469 F.2d 1270 (7th Cir. 1972) (conviction under 18 U.S.C. § 659 for possession of stolen stock certificates of value in excess of $100), the court held that the certificates could be valued at the time of theft or at the time of possession.

While the cases cited do not concern the precise statute which we must construe, the reasoning which underlies the results reached in those cases applies with equal validity to this case. The $5,000 requirement of § 2314 is designed not to protect those who transport stolen property, but is rather designed "to avoid overtaxing the Department of Justice." United States v. Schaffer, 266 F.2d 435, 440 (2d Cir. 1959), aff'd, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Moreover, the National Stolen Property Act, of which both 18 U.S.C. § 2314 and § 2315 are a part, is aimed not only at discouraging the interstate transportation and receiving of stolen property, but also at deterring the original theft. See United States v. Gardner, supra. A valuation standard for § 2314 which looks to either the time of theft or the time of transportation is consistent with both these statutory aims, yet is not inconsistent with the governmental resource-preserving function of the $5,000 jurisdictional amount. We therefore hold that the "value" element of 18 U.S.C. § 2314 may be proved by evidence of the stolen property's value either at the time of theft or at the time of transportation. ⁴

This determination does not, however, complete our inquiry. As we observed at the outset of this opinion, two questions have been presented by the defendants' appeal. We have answered the first with respect to the "time" at which value may be determined. We now turn to the second.

B.

Waymon and Moore argue that the blank tickets have been substantially altered by their efforts. Thus, they contend, it was not the stolen property ⁵ which was valued in excess of $5,000 at the time of transportation, but rather property which was the product of their own creation. Necessary to this thesis is their further contention that the stolen Ticketron blanks were an unimportant component of the counterfeited tickets which they transported in interstate commerce.

In developing this argument both defendants analogize their counterfeiting efforts to the painting of a masterpiece on two dollars worth of stolen canvas. The transportation across state lines of the finished painting, according to defendants, would certainly not be within § 2314's reach. Whether or not that is so, we do not face that situation here. We cannot help but observe, however, that in that circumstance it is obvious that the value of the masterpiece would be attributable wholly to the efforts and talent of the artist. In the case sub judice, on the other hand, however substantially the efforts and "talent" of the defendants contributed to the finished product, the Ticketron blanks were essential in order for the counterfeit tickets to have any value. Had the defendants received stolen plain cardboard, and then used that cardboard to create counterfeit theatre tickets, the situation would be analogous to the "masterpiece" hypothetically discussed above. The blank Ticketron tickets, however, were not simply pieces of blank, almost valueless cardboard to which the defendants added their "creative" efforts. Rather, each was imprinted with the Ticketron logo as well as other information which appears on authentic Ticketron tickets. With this stock at their disposal, the defendants could readily produce "genuine" concert tickets and profit from their sale. Indeed, we ask ourselves: if the authentic Ticketron stock was not an essential ingredient to a counterfeiting scheme, why should anyone run the risk of stealing the blanks? ⁶

Although the defendants may have increased the value of the Ticketron blanks by their counterfeiting efforts, they did not by their actions so substantially alter the stolen blanks as to render the transported counterfeit tickets essentially different from what was stolen, within the meaning of § 2314. Accordingly, the finding of...