U.S. v. Perry, 80-1116

• Decision Date: 05 March 1981
• Docket Number: No. 80-1116,80-1116
• Citation: 638 F.2d 862
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Robert PERRY, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 862

638 F.2d 862

UNITED STATES of America, Plaintiff-Appellee, v. John Robert PERRY, Defendant-Appellant.

No. 80-1116.

United States Court of Appeals, Fifth Circuit.

Unit A

March 5, 1981.

Victor K. Sizemore, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., San Antonio, Tex., LeRoy Morgan Jahn, Michael S. McDonald, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, GARZA and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant Perry was convicted of transporting in interstate commerce stolen goods of a value in excess of $5,000, knowing same to have been stolen. 18 U.S.C. § 2314. On his appeal, the defendant principally contends that the district court erred in not granting his motion for a judgment of acquittal grounded on the government's failure to prove that the stolen property transported by him had a market value of $5,000 or more, a statutory prerequisite for conviction of the federal crime. The transported goods had been stolen from a manufacturer-wholesaler. We find that the "market value" of goods stolen from a wholesaler is the wholesaler's sales price, and thus we reject the government's contention that the "market value" should be fixed at the price that would have been charged by a retailer who had first purchased the goods at the wholesaler's price. The defendant's motion for a judgment of acquittal at the close of the government's evidence should therefore have been granted by the district court. Under the rule followed in this circuit, however, when a defendant puts on evidence after his motion for judgment of acquittal has been denied, the sufficiency of the evidence to support his conviction is to be determined by a reviewing court on the basis of the record as a whole. Nevertheless, since we find no evidence in the record which can properly be used to supply the deficiency in the proof of market value, we reverse the conviction.

In its case in chief, the government contented itself with producing proof of the market value of stolen cashews and pistachios transported by Perry on a trip ending with his arrest on November 1, 1979. As we shall note more fully in Part II, below, the government's proof at most shows a total wholesale value of the cashews and pistachios of between $3,309.12 and $4,715.88, and a total retail value of between $6,540.48 and $8,446.56.

Thus, if the latter (retail) price is the appropriate measure of the market value of transported goods stolen from a wholesaler (the theory of the government's case) in the trip ending November 1, the defendant's motion for acquittal at the close of the government's case was properly denied by the district court. However, for reasons set out in Part I below, the market value of goods stolen from a wholesaler is instead the wholesale price of these goods. The issue then presented is whether the defendant's admissions under cross-examination that he had transported goods on previous occasions, when he took the stand following the erroneous denial of his motion for a judgment of acquittal, may supply the deficiency in the "jurisdictional" $5,000 value not previously proved by the government.

The opinion will below discuss: I. The market value of stolen goods for purposes of the offense charged; II. A summary of market value evidence presented by the government in its case in chief; and III. Whether, for the purpose of determining on review the sufficiency of the evidence that the aggregate market value of the transported goods exceeds the statutory minimum of $5,000, the appellate court may consider under the present indictment testimony by the defendant as to the value of stolen goods transported on occasions other than that proved by the government, at least where that testimony was presented by the defendant following the district court's erroneous denial of his motion for judgment of acquittal.

I The Offense

The defendant is convicted of a violation of 18 U.S.C. § 2314, insofar as it provides: "Whoever transports in interstate or foreign 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...." The parties agree that, as charged by the district court, the three essential elements that must be proved beyond a reasonable doubt in order to establish this offense are: First : That the Defendant transported or caused to be transported, in interstate commerce, items of stolen property as described in the indictment; Second : That such items had a value of $5,000; and Third : That the Defendant acted knowingly and willfully.

As summarized in United States v. Nall, 437 F.2d 1177, 1187 (5th Cir. 1971) (italics in the original opinion):

While we agree that the $5,000.00 limitation was not designed to protect those who transport stolen property of a lesser value, its effect is to leave the punishment of such persons to the several states and to make the limitation an essential part of the federal crime. Proof of the value of the property at the time it was stolen or at some time during its receipt, transportation or concealment is essential to conviction of the crime against the United States. The test of the sufficiency of such proof on motion for judgment of acquittal is whether, taking the view most favorable to the Government, a reasonably minded jury might accept the relevant evidence as adequate to support a conclusion of a defendant's guilt beyond a reasonable doubt.

The statutory test for determining value for purposes of the offense charged by 18 U.S.C. § 2314 (transporting goods "of the value of $5,000 or more, knowing the same to have been stolen"), is furnished by the definition of 18 U.S.C. § 2311:

"Value" means the face, par, or market value, whichever 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.

In the present case, since no "face" or "par" value of the stolen goods is established, the issue is what was their "market value" if stolen in wholesale lots from a wholesaler was it the price at which the wholesaler would have sold them, or was it instead the retail value of the goods if sold to consumers by retailers purchasing them from the wholesaler?

"Market Value"

The general test for determining the market value of stolen property is the price a willing buyer would 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. Reid, 586 F.2d 393, 394 (5th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979), citing United States v. McClain, 545 F.2d 988, 1004 (5th Cir. 1977); United States v. Tobin, 576 F.2d 687, 693 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1979); United States v. Nall, 437 F.2d 1177, 1186 (5th Cir. 1971); Herman v. United States, 289 F.2d 362, 366 (5th Cir.), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). As these decisions indicate, the value of the stolen property is a jury question, but the $5,000 "jurisdictional" minimum is an essential element of the federal offense. See United States v. Chandler, 586 F.2d 593, 602 (5th Cir. 1978), cert. denied sub nom. Morrow v. United States, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979).

Applying these general principles, it seems apparent that the market value of goods stolen in wholesale lots from a wholesaler would be the price at which the wholesaler would sell them. With regard to the cashews involved here, for instance, a buyer would be willing to buy a case of cashew nuts (containing 144 small packages) at its wholesale price of $17.28, but he would not likely be willing to purchase a case containing 144 small packages of cashews at the cumulative sum of the retail price ¹ of 25 cents per package that each consumer purchasing a single package would pay i. e., a total of $36 for the case instead of its wholesale price of $17.28.

The district court, however, instructed the jury on the issue as follows: "The word 'value' means the face, par, or market value, or cost price, either wholesale or retail, whichever is greater." This, or course, might be an accurate statement of the test, if the goods had been stolen from a retailer for sale to consumers after the goods had been purchased by the retailer from the wholesaler. The government argues, however, that the same test applies as well when the goods are stolen in wholesale lots from a wholesaler.

In so arguing, the government relies on our decision in 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), which indeed contains language susceptible to that interpretation. ² Such an interpretation of the Herman ruling is further reinforced by its citation of the then-extant decisions of the Sixth and Eighth Circuits that held to such effect, and by its quotation in a footnote of the rule enunciated by one of these decisions: Gordon v. United States, 164 F.2d 855, 858-59 (6th Cir. 1947), cert. denied 333 U.S. 862, 68 S.Ct. 741, 92 L.Ed. 1141 (1948) and Husten v. United States, 95 F.2d 168, 171 (8th Cir. 1938). Accord, United States v. Stoner, 487 F.2d 651 (6th Cir. 1973); Cave v. United States, 390 F.2d 58 (8th Cir.), cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968) (the victims here, however, were retailers); United States v. Willis, 322 F.2d 548 (3d Cir. 1963).

Subsequently, at least one other circuit has declined to follow the Husten-Gordon rule. United States v. Tippett, 353 F.2d 335 (4th Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 889, 15 L.Ed.2d 664 (1966), contains an excellent articulation of the dichotomy between wholesale and retail market value. Somewhat distinguishing Herman...