U.S. v. Simon, 03-3697.

• Citation: 376 F.3d 806
• Decision Date: 16 July 2004
• Docket Number: No. 03-3697.,03-3697.
• Parties: UNITED STATES of America, Appellee, v. Victor SIMON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

376 F.3d 806

UNITED STATES of America, Appellee, v. Victor SIMON, Appellant.

No. 03-3697.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2004.

Filed: July 16, 2004.

Appeal from the United States District Court for the District of South Dakota, John B. Jones, J Counsel who presented argument on behalf of the appellant was Timothy Joseph Langley, FPD, Sioux Falls, SD. Also appearing on the brief was Jeffrey L. Viken, FPD, Sioux Falls, SD.

Counsel who presented argument on behalf of the appellee was Kathryn E. Ford, AUSA, Sioux Falls, SD.

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

WOLLMAN, Circuit Judge.

Victor Simon was convicted of one count of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314, and three counts of mail fraud, in violation of 18 U.S.C. § 1341, and was sentenced to serve three years' probation and pay $7,746 in restitution. He appeals, arguing that the evidence introduced at trial was insufficient as a matter of law to support his convictions or the amount of restitution imposed by the district court.¹ We affirm.

I.

Simon was employed in the quality control department of a Gateway Computers facility in Sioux Falls, South Dakota. His duties included testing computers and computer components that were returned to Gateway by their original purchasers. Simon and other Gateway employees in the quality control department had access to computers and computer components, including central processing units (CPUs). Gateway did not monitor the locations of individual computers or components in its Sioux Falls facility. Gateway did notice, however, a decrease in its overall inventory and thus initiated an internal investigation to determine why a significant number of computers and computer components were missing. Through the use of video surveillance, Gateway was able to determine that at least one employee was stealing computer components. Simon was never videotaped stealing computers or computer components. Gateway also contacted the F.B.I., which commenced a criminal investigation.

The employee who was videotaped stealing computer components, and who subsequently pleaded guilty to a number of federal crimes, told investigators that he had purchased computer components from Simon at unusually low prices, leading him to believe that Simon was also stealing from Gateway. This information, as well as additional investigation, disclosed that Simon sold numerous computers and computer components over the internet while employed at the Gateway facility in Sioux Falls. He shipped the computers and computer components to his customers via Federal Express or UPS. Ultimately, Simon was indicted and tried for stealing and selling two Gateway computers and a number of CPUs.

II.

Simon argues first that the evidence at trial was insufficient to support the jury's conclusion that he stole the computers and CPUs and knew that they were stolen when he sold them. We review de novo the sufficiency of the evidence, viewing the evidence in the light most favorable to the verdict and upholding it if, based on all the evidence and all reasonable inferences, any reasonable juror could find the defendant guilty beyond a reasonable doubt. United States v. Martin, 369 F.3d 1046, 1059 (8th Cir.2004); United States v. Hamilton, 332 F.3d 1144, 1148-49 (8th Cir.2003). This deferential standard of review does not require that the evidence exclude every hypothesis except that of guilt. Durns v. United States, 562 F.2d 542, 546 (8th Cir.1977). Rather, it is enough that the evidence is sufficient to convince a reasonable juror that the defendant committed the charged crime. Id. Either direct or circumstantial evidence properly may provide the basis for a conviction; there is no requirement that direct evidence be adduced at trial. Id.

The evidence at Simon's trial, viewed in the light most favorable to the jury's guilty verdict, showed that the two computers were returned to the Gateway facility where Simon worked; that their internal and external identification numbers were in such a condition that it was unlikely that they passed through Gateway's normal testing process upon return; and that they were...