United States v. Ciongoli
| Decision Date | 23 March 1966 |
| Docket Number | No. 15396.,15396. |
| Citation | 358 F.2d 439 |
| Parties | UNITED STATES of America, Appellant, v. Ralph George CIONGOLI. |
| Court | U.S. Court of Appeals — Third Circuit |
Thomas A. Daley, Asst. U. S. Atty., W. D. of Pennsylvania, Pittsburgh, Pa. (Gustave Diamond, U. S. Atty., Pittsburgh, Pa., on the brief), for appellant.
James A. Ashton, Pittsburgh, Pa., for appellee.
Before McLAUGHLIN, HASTIE and SMITH, Circuit Judges.
The United States has taken this appeal, as authorized by the Criminal Appeals Act, 18 U.S.C. § 3731, from an order dismissing an indictment without prejudice.
The indictment charged the accused with concealing and retaining "fifty-one (51) stolen United States Postal Money Orders" which were "of a value in excess of $100.00" in violation of section 641 of title 18, United States Code. The statute provides that "whoever receives, conceals, or retains * * * any property of the United States with intent to convert it to his use or gain, knowing it to have been * * * stolen * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both".
The defendant moved to dismiss the indictment, supporting his motion with an affidavit averring that "the money orders were blank and as such had no face or par value nor any market value and that the cost price of said money orders was less than $100.00". At the hearing on this motion, the prosecution conceded that the money orders were blank but asserted that it would prove that the defendant offered them for sale for more than $100.00 and that in illicit trade their aggregate value exceeded $100.00. The court thereupon granted the motion to dismiss, without prejudice. We think this ruling was in error for two reasons.
First, under the present indictment the defendant could be convicted and punished for concealing property of value less than $100. Robinson v. United States, 8th Cir., 1964, 333 F.2d 323; Larson v. United States, 10th Cir., 1961, 296 F.2d 80. The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed. United States v. Marpes, 3d Cir., 1952, 198 F.2d 186. It is only the gravity or degree of the offense, as measured by the seriousness of the harm of the state, which varies with the value of the stolen property. Cf. Kanton v. United States, 7th Cir., 1965, 345 F.2d 427. For present purposes it makes no difference whether the legislative scheme is viewed as providing degrees of a single crime or a greater offense and a like included lessor offense. Cf. Salinas v. United States, 9th Cir., 1960, 277 F.2d 914. For, in either view, a charge of the more serious wrong necessarily includes all elements that must be charged to establish the lesser wrong, plus an aggravating circumstance.
Thus, if the more serious wrong is charged and evidence concerning the aggravating circumstance is conflicting, it is fair, in keeping with the legislative design, and legally proper to instruct the jury that the defendant may be convicted of the lesser wrong. Larson v. United States, supra; see Sansone v. United States, 1965, 380 U.S. 343, 350, 85 S.Ct. 1004, 13 L.Ed.2d 882. Perhaps the most striking application of the general doctrine occurs when, after conviction of the greater offense, the court is persuaded that there...
To continue reading
Request your trial
-
U.S. v. Gibbs, 86-1370
...v. Marpes, 198 F.2d 186 (3d Cir.), cert. denied, 344 U.S. 876, 73 S.Ct. 170, 97 L.Ed. 678 (1952), and reaffirmed in United States v. Ciongoli, 358 F.2d 439 (3d Cir.1966). In Marpes, the criminal statute at issue distinguished between offenses involving stolen goods valued at $100 and less, ......
-
U.S. v. Lancer
...364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas. 22 In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. 641. The indictment in that c......
-
U.S. v. DiGilio
...a government record or other thing of value as defined in § 641, the prima facie case of violation is complete. United States v. Ciongoli,358 F.2d 439, 441 (3d Cir. 1966). Proof that the value of the stolen property is in excess of $100 is an element of the offense if the felony sanction is......
-
U.S. v. Carter
...while Carter may not be tried again for burglary while armed, the charge of burglary may be reasserted. Cf. United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), wherein the Court of Appeals for the Third Circuit held that where a defendant is convicted of the greater offense under a stat......
-
Searching for the "tail of the Dog": Finding "elements" of Crimes in the Wake of Mcmillan v. Pennsylvania
...was whether the evidence was sufficient to support the defendant's conviction. Id. 91. 333 F.2d 323 (8th Cir. 1964). 92. Id. at 326. 93. 358 F.2d 439 (3d Cir. 94. Id. at 440 (citing United States v. Marpes, 198 F.2d 186 (3d Or. 1952)). 95. 503 F.2d 949 (5th Or. 1974). 96. Id. at 951. 97. Of......