U.S. v. Robie

• Decision Date: 28 January 1999
• Docket Number: Docket No. 97-1672
• Citation: 166 F.3d 444
• Parties: UNITED STATES of America, Appellee, v. Clarence Robert ROBIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 444

166 F.3d 444

UNITED STATES of America, Appellee, v. Clarence Robert ROBIE, Defendant-Appellant.

Docket No. 97-1672

United States Court of Appeals, Second Circuit.

Argued Aug. 25, 1998.

Decided Jan. 28, 1999.

Richard C. Daddario, Assistant U.S. Attorney for the Southern District of New York, New York, N.Y. (Mary Jo White, U.S. Atty. for the Southern District of New York, Craig A. Stewart, Dietrich L. Snell, Assistant U.S. Attorneys, on the brief), for Appellee.

Henriette D. Hoffman, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: MESKILL, WALKER, and SACK, Circuit Judges.

SACK, Circuit Judge:

Clarence Robert Robie appeals from a judgment of conviction and sentence entered by the United States District Court for the Southern District of New York (Batts, J.) following a jury trial for theft of property made under contract for the United States worth more than $100 in violation of 18 U.S.C. § 641 and for interstate transportation of stolen property worth $5,000 or more in violation of 18 U.S.C. § 2314. He asserts that the evidence was insufficient to sustain his felony conviction under 18 U.S.C. § 641 because it did not establish beyond a reasonable doubt that the stolen property (i) was worth more than $100 and (ii) was "made under contract for the United States." ¹ He also contends that his conduct did not violate 18 U.S.C. § 2314 because the government did not prove beyond a reasonable doubt that the property he transported across state lines was worth $5,000 or more. ² In the alternative, Robie asserts that his conduct fell within the "spurious representation" exception of section 2314. Finally, Robie contends that the district court miscalculated his offense level under section 2B1.1 of the United States Sentencing Guidelines. We disagree with all but the last assertion and therefore affirm except that we remand the case to the district court for resentencing.

BACKGROUND

Robie was charged under Count One of an indictment filed in February 1997 with "unlawfully, willfully, and knowingly ... embezzl[ing], steal[ing], purloin[ing] and knowingly convert[ing] to his use and the use of another property made under contract for the United States and a department and agency thereof, to wit, ... approximately 160 Richard Nixon commemorative 32cents stamps" from Banknote Corporation of America, Inc. ("Banknote") "which stamps were the property of the United States Postal Service and were misprinted, misaligned and had the words 'Richard Nixon' printed upside down, and which had a market value exceeding $100," in violation of 18 U.S.C. § 641. Count Two of the indictment charged Robie with "unlawfully, willfully and knowingly ... transport[ing] and transfer[ring] in interstate commerce goods, wares and merchandise of the value of $5,000 and more," specifically the misprinted Richard Nixon stamps referred to in Count One, "knowing the same to have been stolen, converted and taken by fraud," in violation of 18 U.S.C. § 2314.

Banknote specializes in printing government and other official documents including postage stamps, social security cards and government visas. Its production of stamps is heavily regulated; the government imposes detailed security and quality controls. For example, Banknote employees are required to inspect all finished stamps to ensure that they conform to contract specifications and are of a quality that is acceptable to the Postal Service. Stamps that are non-conforming are deemed "press waste" and are segregated from the stamps that pass inspection. Press waste routinely is placed in a high-security vault where it is stored pending destruction upon specific authorization by the Postal Service. The Postal Service requires destruction of press waste because, among other things, the paper has a phosphor coating that would permit the defective stamps to be used as valid postage, and the Postal Service wants to circulate only high-quality, conforming stamps.

A stamp misprinted so that some of it is upside down is known as an "invert." Inverts are of little value except in the highly unusual instance where they are officially and accidentally issued by the Postal Service. Then, their rarity may render them highly valuable among collectors.

On December 5, 1994, the Postal Service gave Banknote a purchase order calling for it to print 80 million commemorative Richard Nixon postage stamps. In the course of fulfilling the order, Banknote printed a sheet of Nixon stamps comprising inverts ("Nixon inverts"): The name Richard Nixon was printed upside down relative to the portrait of the former president. The press waste from the Nixon stamps, including the Nixon inverts, was consigned to the Banknote vault.

Robie was employed by Banknote at its Suffern, New York, facility while Banknote was producing the Nixon stamps there. His responsibilities included operating a cutting machine that prepared sheets of approved stamps to the specifications required for delivery to the Postal Service. In his capacity as a cutter, Robie had access to the vault where the press waste was stored. Witnesses saw him entering the vault while press waste from the Nixon stamps--including the Nixon inverts--was held there. In August 1995, the Postal Service authorized the destruction of the press waste resulting from production of the Nixon stamps, which would have included the Nixon inverts if Robie had not already removed them from the vault without authorization.

Stamp dealer William Langs frequently advertised in philatelic magazines seeking misprints. On March 19, 1995, Robie, himself a stamp collector, contacted Langs advising him that Robie would be obtaining some "error stamps," without identifying them. He asked Langs whether he was interested in purchasing them. Langs said he was.

The Postal Service began general distribution and sale of Nixon stamps on or about April 27, 1995. On that day, Robie again told Langs that Robie was going to have "error stamps" to offer Langs. Still, Robie did not say what stamps he had in mind.

On May 15, 1995, Robie and Langs met at a diner in New Jersey. Robie falsely told Langs that Robie would be obtaining some "upside down" Nixon stamps from a woman On June 10, 1995, Robie and Langs again met at the New Jersey diner. There, Robie traded 120 of the Nixon inverts to Langs for collectors' stamps with a catalog value of approximately $60,000. On June 26, after Robie complained about the value of the stamps he had received in the exchange, Langs gave him a $1,000 check and additional stamps with a retail value of approximately $4,000-$5,000.

in Virginia who had purchased the stamps at a Post Office. Later that day Robie sent Langs a facsimile of the Nixon inverts. Langs expressed an interest in purchasing them.

In August 1995, Robie contacted Gary Posner, another stamp dealer, and told him about the Nixon inverts. Posner expressed interest in viewing them. Robie drove from New York to a New Jersey Turnpike rest stop where he showed Posner the remaining forty Nixon inverts and again falsely represented that they had been obtained from a woman who had purchased them at a Post Office in Virginia. Robie told Posner that Robie had sold 120 of the Nixon inverts to Langs but was unhappy doing business with him.

Posner took the forty Nixon inverts in exchange for $7,000 in cash and a collection of foreign postage stamps with a retail value of approximately $12,000-$15,000. The next day, Posner traded the inverts to Langs for other error stamps and early 19th century United States stamps with a total wholesale value of approximately $75,000 and a retail value of approximately $125,000. Langs later sold 141 of the Nixon inverts for $800,000 through an auction sale at Christie's, Inc., in New York City.

According to representations Robie made to the trial judge before sentencing, he eventually sold the stamp portion of the proceeds of the Langs sale for $10,450. He sold the stamp portion of the proceeds of the Posner sale for $3,188.75. Together with the $8,000 in cash that he received from Langs and Posner, the total proceeds of his sale of the stamps, thus calculated, was $21,638.75.

Robie was arrested on December 12, 1996 and charged in a two-count indictment with theft of property made under contract for the United States in violation of 18 U.S.C. § 641, and transporting stolen property in interstate commerce in violation of 18 U.S.C. § 2314. ³ After a four-day trial in May 1997, the jury convicted Robie on both counts. Although the jury concluded that Robie had stolen the stamps from Banknote, there was no direct evidence to establish, and the jury did not find, precisely when or how the theft had taken place.

At Robie's sentencing on November 18, 1997, Judge Batts adopted the Presentence Report's findings of fact and its determination that Robie's criminal history category was I. Applying U.S.S.G. § 2B1.1, which governs both convictions for theft of goods made under contract for the United States and for interstate transportation of stolen goods, Judge Batts found that the base offense level of four should be increased to reflect the amount of loss caused by Robie's offense. Based on the trial testimony of Langs and Posner, Judge Batts determined that the actual value of the 160 Nixon stamps to Robie was $400 a stamp, for a total of $64,000, which required an increase of seven offense levels. With a resulting offense level of eleven, calling for a sentence of eight to fourteen months, the court sentenced Robie to a term of imprisonment of one year and one day to be followed by three years of supervised release, and a special assessment of $100. Robie filed a timely notice of appeal.

DISCUSSION

I. Sufficiency of the evidence under 18 U.S.C. § 641

Robie asserts that the evidence at trial was insufficient to sustain a felony conviction under 18 U.S.C. § 641 because it did not establish beyond a...