Protection of Government PropertyElement --
The value of the stolen property is an element of the offense and
of value must be introduced at trial. See United States v.
284 F.2d 407, 408 (4th Cir. 1960); Cartwright v. United States, 146
133, 135 (5th Cir. 1944). Section 641 defines value as "face, par, or
value, or cost price, either wholesale or retail, whichever is greater." The
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
fences might pay on the "thieves' market." See Churder v. United
States, 387 F.2d 825 (8th Cir. 1968); Jalbert v. United States,
F.2d 125 (5th Cir.), 389 U.S. 899 (1967); United States v. Ciongoli,
F.2d 439 (3d Cir. 1966). Unless the thefts were part of a common scheme or
the value of property taken in separate larcenies cannot be aggregated to
the $100 felony minimum, see United States v. DiGilio, 538
(3d.Cir.), cert. denied, 429 U.S. 1038 (1976); Cartwright, 146
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.
"whichever is greater" rule is applicable regardless of the disparity
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.
(1956). In Fulks v. United States, 283 F.2d 259 (9th Cir. 1960),
denied, 365 U.S. 812 (1961), the court upheld a felony conviction based
the theft of eight gyro horizon indicators with a cost price of $205 each
scrap value of only $76 each. Finally, the prosecution does not have to
the exact or approximate value of the stolen property but merely has to show
it is in excess of $100. See Jalbert, 375 F.2d at 126.|
In some situations where valuation problems exist or where realty
involved, consideration should be given to instituting a prosecution under
U.S.C. § 1361 in place of or in addition to a prosecution under 18
§ 641. In cases involving fixtures or other attached property, the
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
sustained if "damage" which can be measured by the cost of repair,
Brunette v. United States, 378 F.2d 18 (9th Cir.), cert.
389 U.S. 961 (1967), to such property exceeds $ 100. Occasionally, the
items removed might not exceed $100, but the cost of repair would.
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
"cost price" to the government is established by reference to catalogues or
records, kept in the regular course of business by the government, which
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
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
price" can be construed as "cost to the government" in those situations
government has produced the item itself. As yet, there are no reported
on this point.
In general usage "cost price" to the government would mean the
paid by the government in purchasing an item. However, in this unusual
involving the "internal purchase" of products, the Department feels it would
be unreasonable to argue that "cost price" means cost to the government.
it should be possible to introduce evidence as to the costs incurred in
The question of value relates only to punishment and not to guilt.
a properly instructed jury finds that a defendant is guilty but that the
has a value of $100 or less, it may convict him for a misdemeanor despite
fact that he was indicted for a felony. See Ciongoli, 358
439; Robinson v. United States, 333 F.2d 323 (8th Cir. 1964);
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
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
times. See O'Malley v. United States, 378 F.2d 401 (1st
cert. denied, 389 U.S. 1008 (1967); Hansberry v. United
F.2d 800 (9th Cir. 1961). Thus, when small sums of money (less than $100)
embezzled over a period of time, it should be possible to aggregate these
(when these embezzlements follow a pattern or reveal a single sustained
intent), and allege the loss of a single sum thereby sustaining a felony
[cited in USAM 9-66.200]