Russell v. United States, 2013 D.C. App. LEXIS 265

Background

Russell and Castoreño, employed by I.I.I. as temporary contractors for the FAA, were convicted after a bench trial of second-degree theft and malicious destruction of property (MDP) for removing and selling surplus FAA cable.
The removal occurred April 20–23, 2011, facilitated by Campbell (FAA/I.I.I. contact) and Clayton, with others aware of the operation; no formal authorization or paperwork was produced for the removals.
Proceeds from recycling were split among participants; Campbell allegedly implied authorization but did not receive a share, and Campbell’s authority to approve the conduct was disputed.
A large FAA outage followed the theft, with investigators tracing it to the severed cables; Campbell attempted to deflect blame to Clayton.
On appeal, appellants challenged the sufficiency of the evidence for theft and MDP and challenged the trial court’s quashing of a defense subpoena.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for theft	Government contends appellants lacked authority to take cables; Campbell’s mere appearance of authority did not authorize the act.	Castoreno and Russell reasonably believed Campbell had authority to dispose of surplus cable under an apparent-authority theory and thus acted lawfully.	Convictions for theft affirmed; no reasonable belief supported by evidence to negate lack of authority.
Malicious destruction of property malice	Government argues appellants acted with actual malice by knowingly removing property of value without authorization and intending harm.	Castoreno and Russell contend lack of malice since an unauthorized agreement with Campbell could negate intent to harm the property.	MDP convictions affirmed; evidence supports actual malice or conscious disregard of risk in destroying property.
Apparent authority and knowledge at the time of theft	Government emphasizes Campbell’s lack of lawful authority notwithstanding apparent authority; appellants knew Campbell’s arrangement was improper.	Appellants urge that Campbell’s apparent authority and the open nature of operation created a reasonable belief of authorization.	Appellants failed to establish a reasonable belief that Campbell had authority for the specific arrangement; theft affirmed.
Quashing defense subpoena	Government argues the court acted within its discretion; the subpoena would not have materially aided the defense.	Russell contends the subpoena of Michael Dammeyer could have produced favorable, non-cumulative testimony relevant to guilt.	Trial court did not abuse discretion in quashing the subpoena; testimony would have been cumulative and not material.

Key Cases Cited

Stieger v. Chevy Chase Sav. Bank, F.S.B., 666 A.2d 479 (D.C.1995) (apparent authority permits third parties to reasonably believe consented authority)
Peery v. United States, 849 A.2d 999 (D.C.2004) (insufficient evidence where innocent and guilty explanations create reasonable doubt)
Charles v. United States, 371 A.2d 404 (D.C.1977) (malice includes conscious disregard or specific intent; defines two mental states)
(Robert) Thomas v. United States, 985 A.2d 409 (D.C.2009) (malice in MDP can be shown by specific intent to damage property)
Gonzalez v. United States, 859 A.2d 1065 (D.C.2004) (malice may be shown by actual intent or conscious disregard)
Carter v. United States, 531 A.2d 956 (D.C.1987) (instructional approach to malice permits either specific intent or conscious disregard)