United States v. Ditata, 71-1283.

• Decision Date: 16 November 1972
• Docket Number: No. 71-1283.,71-1283.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony DITATA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.2d 1270 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony DITATA, Defendant-Appellant.

No. 71-1283.

United States Court of Appeals, Seventh Circuit.

Argued September 14, 1972.

Decided November 16, 1972.

John Powers Crowley and Michael B. Nash, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., Chicago, Ill., Colleen Kollar, and John T. Spotila, Crim. Div., U.S. Dept. Justice, Washington, D.C., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges.

KILEY, Circuit Judge.

Defendant-appellant Ditata was convicted by a jury on each of four counts in an indictment charging him with the offense of possessing stock certificates stolen from interstate commerce in violation of 18 U.S.C. § 659.¹ We affirm.

The American Bank Note Company of New York printed 5,000 blank stock certificates of Westinghouse Electric Corporation for the Continental Illinois National Bank and Trust Company of Chicago (Continental). On October 4, 1968 these certificates were delivered to Emery Air Freight for shipment via American Airlines to O'Hare Airport in Chicago. When Emery Air Freight went to O'Hare Airport to pick up the shipment for delivery to Continental, the certificates were missing.

On January 20, January 31, February 10 and May 26, 1971, various Westinghouse Electric Corporation stock certificates were pledged as collateral for loans at separate banks in the Chicago area. The pledged certificates were identified as part of those missing in transit. Although the certificates were blank when shipped, the government evidence revealed they bore forgeries of the transfer agent, registrar, name of registered owner, number of shares and date of issuance. These forgeries were all essential for negotiation of the certificates. In each of the four instances, Ditata was identified as the pledgor of the certificates, and successful borrower. He was eventually indicted, tried and convicted. This appeal followed.

Each of the four counts charged that the value of the certificate subject of the count was in excess of $100. The significance of this allegation is in the penalty involved: i.e., should value exceed $100 a guilty defendant may "be fined not more than $5,000 or imprisoned not more than ten years, or both;" however, in the event value does not exceed $100 a guilty defendant "shall be fined not more than $1,000 or imprisoned not more than one year or both."²

At the close of the government's case, Ditata moved for acquittal contending, inter alia, that the stock certificates passed by him had a value of less than $100. The district judge denied the motion. He gave an instruction on the value "in excess of $100" as charged in the indictment and submitted the question of value to the jury in the form of a special verdict.

The court instructed the jury in substance that "only in the event" it found Ditata guilty was it to consider the question of value, and that if that question was reached the jury would have to consider the "arguments" on both sides as to value on the dates charged in the indictment. About an hour and a half after the jury retired, it sent a question to the judge:

How is the value . . . to be considered? Market value, paper value, which is nine cents, or nothing, in establishing . . . whether it the property exceeded $100 or not.

The judge recalled the jury and reinstructed it that upon the evidence heard it had to decide what the value was "on the date that is referred to in each count." The jury retired again and subsequently returned the guilty verdict and a special verdict finding value to be "in excess of $100."

Ditata contends that the giving of the instruction, as to value, was reversible error because the jury was told to determine the value of the certificates as of the dates of Ditata's possession of them instead of the date they were stolen. If Ditata's contention is correct he could be found guilty and imprisoned under Section 659 for the misdemeanor but not for the felony, since the value of each certificate in blank form, when stolen, was only 9.3 cents. However, Ditata was indicted for and convicted of the possession, and not the theft, of the certificates. Consequently, he cannot argue persuasively that the time of theft is controlling in determining the value of property related to his offense. We hold therefore that the instruction is not erroneous.

Ditata argues that because of the interstate commerce element in Section 659 it is theft from interstate commerce — the time of the theft — that controls the determination of value. He relies principally upon the Congressional purpose and this court's decision in United States v. Dandridge, 437 F.2d 1324 (7th Cir. 1971).

It is true that the interstate commerce element is very important since it constitutes the federal offense, United States v. Gollin, 166 F.2d 123, 125 (3rd Cir. 1948), and "the facts existing at the time of the theft are the controlling element with reference to the interstate commerce status," Id. at 125, of the certificates. We do not agree, however, that merely because the federal jurisdictional element is determined at the time of theft, value in possession must be established as of that moment.

The Congressional purpose in enacting Section 659 was "to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions." United States v. Berger, 338 F.2d 485, 487 (2nd Cir. 1964). We cannot attribute to Congress an intent to restrict value of property stolen from interstate commerce to the moment of the theft. Should this be done, the actual value might then be negligible while its potential value realized in the "thieves' market" would be substantial. Attributing that intent to Congress would be a benefit to persons on the way to the thieves' market, who would not only profit by their criminal activity but who would also risk a comparatively slight penalty. In our opinion, the Congressional purpose is better served by appraising the stolen certificates at the point of Ditata's unlawful possession — the crime with which he was charged.

The instruction given on value...