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1656

Protection of Government Property—Element -- Value

The value of the stolen property is an element of the offense and proof of value must be introduced at trial. See United States v. Wilson, 284 F.2d 407, 408 (4th Cir. 1960); Cartwright v. United States, 146 F.2d 133, 135 (5th Cir. 1944). Section 641 defines value as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater." The face value can be virtually nothing, as in Keller v. United States, 168 F. 697 (7th Cir. 1909), where the stolen property consisted of six blank checks worth one cent each. The market value is not limited to the legitimate resale price of the property but may also be the price fences might pay on the "thieves' market." See Churder v. United States, 387 F.2d 825 (8th Cir. 1968); Jalbert v. United States, 375 F.2d 125 (5th Cir.), 389 U.S. 899 (1967); United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966). Unless the thefts were part of a common scheme or plan the value of property taken in separate larcenies cannot be aggregated to reach the $100 felony minimum, see United States v. DiGilio, 538 F.2d 972 (3d.Cir.), cert. denied, 429 U.S. 1038 (1976); Cartwright, 146 F.2d at 135, but it may be shown that the aggregate value of property taken in a single offense exceeds $100. See Jalbert, 375 F.2d at 116. The "whichever is greater" rule is applicable regardless of the disparity between the retail cost price and the market value. See O'Malley v. United States, 227 F.2d 332, 336 (1st Cir. 1955), cert. denied, 350 U.S. 966 (1956). In Fulks v. United States, 283 F.2d 259 (9th Cir. 1960), cert. denied, 365 U.S. 812 (1961), the court upheld a felony conviction based on the theft of eight gyro horizon indicators with a cost price of $205 each but a scrap value of only $76 each. Finally, the prosecution does not have to prove the exact or approximate value of the stolen property but merely has to show that it is in excess of $100. See Jalbert, 375 F.2d at 126.

In some situations where valuation problems exist or where realty is involved, consideration should be given to instituting a prosecution under 18 U.S.C. § 1361 in place of or in addition to a prosecution under 18 U.S.C. § 641. In cases involving fixtures or other attached property, the removal of which necessitates some injury, it is possible to institute a prosecution under 18 U.S.C. § 1361. This is useful because a felony conviction can be sustained if "damage" which can be measured by the cost of repair, see Brunette v. United States, 378 F.2d 18 (9th Cir.), cert. denied, 389 U.S. 961 (1967), to such property exceeds $ 100. Occasionally, the value of items removed might not exceed $100, but the cost of repair would. See Edwards v. United States, 361 F.2d 732 (8th Cir. 1966).

One additional question involving value concerns the meaning and application of the term "cost price." In most cases this poses no problem since "cost price" to the government is established by reference to catalogues or other records, kept in the regular course of business by the government, which reflect the price paid by the government for the item. These records, after proper identification and authentication, can be introduced to establish the "cost price." However, an issue arises as to what measure of value to use when the government makes the items itself. Frequently, items made by government employees are of a special nature for which there is no readily ascertainable market value, and even when a market value can be approximated, it may not adequately reflect the value of the item. Thus, the issue arises whether "cost price" can be construed as "cost to the government" in those situations where the government has produced the item itself. As yet, there are no reported decisions on this point.

In general usage "cost price" to the government would mean the price paid by the government in purchasing an item. However, in this unusual situation involving the "internal purchase" of products, the Department feels it would not be unreasonable to argue that "cost price" means cost to the government. Thus it should be possible to introduce evidence as to the costs incurred in making an item.

The question of value relates only to punishment and not to guilt. If a properly instructed jury finds that a defendant is guilty but that the property has a value of $100 or less, it may convict him for a misdemeanor despite the fact that he was indicted for a felony. See Ciongoli, 358 F.2d 439; Robinson v. United States, 333 F.2d 323 (8th Cir. 1964); Larson v. United States, 296 F.2d 80 (10th Cir. 1961); United States v. Marpes, 198 F.2d 186 (3d Cir), cert. denied, 344 U.S. 876 (1952).

When the case involves the embezzlement of funds over a period of time, it is possible to allege the loss of a single sum of money even though the embezzlement may have consisted of a series of conversions occurring at different times. See O'Malley v. United States, 378 F.2d 401 (1st Cir.), cert. denied, 389 U.S. 1008 (1967); Hansberry v. United States, 295 F.2d 800 (9th Cir. 1961). Thus, when small sums of money (less than $100) are embezzled over a period of time, it should be possible to aggregate these amounts (when these embezzlements follow a pattern or reveal a single sustained criminal intent), and allege the loss of a single sum thereby sustaining a felony conviction.

[cited in USAM 9-66.200]