U.S. v. Robinson

• Decision Date: 30 September 1982
• Docket Number: No. 81-7827,81-7827
• Citation: 687 F.2d 359
• Parties: 11 Fed. R. Evid. Serv. 960 UNITED STATES of America, Plaintiff-Appellee, v. Hilton ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 359

687 F.2d 359

11 Fed. R. Evid. Serv. 960

UNITED STATES of America, Plaintiff-Appellee, v. Hilton ROBINSON, Defendant-Appellant.

No. 81-7827

United States Court of Appeals Eleventh Circuit.

Sept. 30, 1982.

Robert F. Clark, Mobile, Ala., for defendant-appellant.

J. B. Sessions, III, U. S. Atty., E. T. Rolison, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

PER CURIAM:

On September 10, 1981, in federal district court in Mobile, Alabama, appellant was convicted under title 18 U.S.C. § 2314 of transporting in interstate commerce goods of the value of $5,000 or more, knowing such goods to have been stolen, converted or taken by fraud. Appellant raises three issues. (1) The $5,000 statutory minimum was not met. (2) The trial court committed reversible error in allowing evidence of other crimes in violation of Federal Rule of Evidence 404(b). (3) The trial judge committed reversible error by interposing objections on behalf of the United States.

(1)

The transported stolen goods consisted of a soup to nuts array of fine table silver. At issue is whether this silver had a value of at least $5,000. The $5,000 jurisdictional minimum is an essential element of the offense. United States v. Perry, 638 F.2d 862 (5th Cir. 1981); 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). 18 U.S.C. § 2311 defines "value" as the "face, par or market value, whichever is the greatest." Since the silver had no face or par value proof of its market value was essential for conviction. United States v. Nall, 437 F.2d 1177, 1187 (5th Cir. 1971).

The market value of stolen property is the price a willing buyer would pay a willing seller either at the time and the place that the property was stolen or at any time during the receipt or concealment of the property. United States v. Perry, 638 F.2d at 865; 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); United States v. McClain, 545 F.2d 988, 1004 (5th Cir. 1977). Appellant argues that this price was substantially depressed because the silver had been inscribed with the owner's monogram and because it had been used.

In this circuit the type of buyer seller transaction used for determining the value of the stolen property is the transaction in which the person from whom the property was stolen would have engaged. If property is stolen from a retail merchant the market value is the retail sales price. If property is stolen from a wholesale merchant the market value is the wholesale price. United States v. Perry, 638 F.2d at 865. Robinson transported fine flatware and holloware stolen from a discriminating consumer who appreciated fine silver. The market value of this silver is the price a discriminating consumer would have paid for it. The government's expert witness, a licensed silver appraiser, testified that this price would be in excess of $8,000; that age and monogram would not affect this price. The New Orleans antique dealer who purchased the silver from appellant testified that, while monogrammed silver might sell slightly less readily, or sell for somewhat less than new silver, the silver if new would fetch $6,000 to $8,000 on the retail market. Upon review the evidence must be considered in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The evidence was clearly sufficient to allow the jury to conclude beyond reasonable doubt that the statutory minimum had been met.

(2)

Appellant contends that introduction of the testimony of two convicted silver burglars violated Federal Rule of Evidence 404(b). Under 404(b) evidence of other crimes, wrongs or acts is admissible as proof of relevant facts apart from defendant's bad character. Such evidence must possess probative value not substantially outweighed by its undue prejudice to the defendant. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).

The silver burglars testified that they had repeatedly used Robinson as a "fence" in their own stolen silver transactions. They described a complex plan of operation including beeper system call backs and secret sales rendevous. This testimony was highly probative of defendant's modus operandi, intent, and knowledge, Fed.R.Evid. 404(b). Knowledge is an essential element under 18 U.S.C. § 2314, and by its very nature, generally requires proof by circumstantial evidence. Where the issue is defendant's mental state the balance tips toward admissibility. 22 C. Wright and K. Graham, Jr., Federal Practice and Procedure § 5239 (1978). The determination of admissibility rests in the sound discretion of the trial judge. It cannot be found that he abused this discretion in admitting the testimony of the silver burglars.

(3)

Appellant's third contention is that the trial judge violated defendant's due process rights by stepping into the shoes of the prosecuting attorney. To constitute constitutional error the judge's actions viewed as a whole must amount to intervention which could have led the jury to a predisposition of guilt by improperly confusing the functions of judge...