United States v. Curtis Jordan Hill
835 F.2d 759
10th Cir.
1987
Check Treatment

*1 Judgment reversed and case remanded to directions that the district court with judgment and or- court vacate its

district

der, the district court then remand and that

the matter to the Parole Commission its decision and

directions that vacate setting parole Misasi’s date at 60

order

months, proceedings and that further be- consonant with the

fore the Commission be expressed. herein

views America,

UNITED STATES

Plaintiff-Appellee, HILL,

Curtis Jordan

Defendant-Appellant.

No. 86-2860. Appeals,

United States Court of

Tenth Circuit.

Dec. Attorney. beyond guidelines report going of the United States the Commission in exclusively relied on statements contained in *2 Phillips, David J. Asst. Federal Public (Charles Anderson, Defender D. Federal Defender, brief), Public with him on the Kan., City, Kansas defendant-appellant. for (Ben- Streepy, Atty. Robert S. Asst. U.S. jamin Burgess, Jr., L. Atty., U.S. with him brief), Kan., on the City, plain- Kansas for tiff-appellee. MOORE, McWILLIAMS,

Before BALDOCK, Judges. Circuit MOORE, JOHN P. Judge. Circuit appeals Defendant Curtis Jordan Hill his stealing conviction for the crime of proper- government, of the U.S.C. § objects charged of the theft were mon- ey and an belonging automobile candor, United States. With commendable acknowledges defendant his dominion over property may illegal, this have been criminal, perhaps even but he contends that so, he could guilty not be of the offense as a matter of law. He argues that unlawfully because he did not come into in the instance, by first definition his offense stealing. agree could not have been We and reverse. ap- the summer of defendant
proached agents Drug Enforcement Administration with an offer to aid them in bring ground drug their efforts to deal- City. ers in Kansas He told them of his past life-style dissolute and his resolve to worthy transform himself into a citizen. endeavor, As a vehicle to achieve this suggested experi- he could trade his drug purveyors ence amidst to ferret out targets for the DEA.

Intrigued agents suggestion, this opportunity prove offered Mr. an making worth. clear that Mr. Hill After agent govern- would not become an ment, agreed arrange- an the officers drug make whereby ment Mr. Hill would buys exchange compensa- testify agreement tion. Armed with that suit- instructions, Hill set on his able Mr. out first venture. though,

As luck Mr. Hill would have artfully did not conclude the transaction yellow lights disappeared of the misad- and then ensued. The details over which hill, here; therefore, leaving trailing agents of a crest important are not venture grounded upon light. the shoals of a red given $600 it that Mr. suffice Although Hill, tried to find Mr. from purchased cocaine vain, their efforts were and the search To his misfor- spouse of a known dealer. was abandoned. however, tune, Mr. the dealer later accused *3 him. stealing more cocaine from Hill of following day, government’s the car discomfiture, Mr. Because of his resultant in parking was discovered lot across from city to Hill himself to another removed University the of Kansas Medical Center. serenity. await the return of Hill “buy money” Neither Mr. nor the were later, however, days to be found. Four agents, urging the Mr. At the of one of weekend, apparent after an lost Mr. Hill City to Kansas agreed Hill to come back appeared headquarters at DEA and surren- the purchase more to seal and make one dered himself. He was arrested on the against dealer. Af- government’s case the spot. considering proposition, Mr. Hill the ter agreed. agents told them he the called legal analysis While it does not affect the the stated he had contacted He further complete saga of the does the to All and resolved matters with him. explained dealer Hill disclose at trial Mr. pay driving assignation Hill had to do was the dealer $800 Mr. while with the dealer, dealer, thought might the to exonerate a debt he owed he of what take purchase. place uncertainty safety; of his Mr. Hill could make another consequently, panicked he and bolted out of agents, Mr. Hill With the consent of the fear. He added that because he was suf- arranged buy ounce of cocaine for to one toothache, fering from a he went to a den- $2,000. pur- planned It that after the was University tist at the of Kansas Medical agents would execute a search war- chase While he Center where he left the car. rant and arrest the dealer. majority not for the could account City and was Mr. Hill flew to Kansas spending missing money, he did admit to agents airport finalize bymet at the to drugs it on for his own use. some of plans buy. During the the course of here, facts, light of these The issue conversation, given to consideration was charge. supported whether going means Mr. Hill was which question is whether particularly, More After some drive to the dealer’s location. Hill “stole” the Mr. discussion, agreed it was that it would look as that term is used if Hill alone. Since Mr. better Mr. drove own, agents charge Hill had no car of his also The statute against Mr. Hill was based states: decided Mr. Hill should drive the car as- addition, they signed embezzles, steals, of them. purloins, one or Whoever $2,800 gave pay any Mr. Hill his “debt” and knowingly converts to his use ... cocaine, together purchase money, the ounce of or of value of the Unit- ... impris- for his shall be fined ... or with an additional as a fee ed States ... $600 service and reimbursement for his ex- oned. ... Hill

penses. Mr. was then told that after added). (emphasis Mr. Hill 18 U.S.C. 641 purchase, he meet he made his was to with might argues that he have been while agents they test so could field conversion, because the guilty illegal bought. substance agents willingly gave him car, guilty money and the he could again Mr. Hill set sail to encounter Once stealing. world, drug the denizens of the but dispute. voyage planned. consummated as not in was not The critical evidence is First, give Despite slowly to drive Mr. Hill the strict orders the decision agents. Obvi- go through yellow lights, solely Mr. was not to Indeed, money Mr. could ously, course. without the chose a different drug abandon, proposed transac- seeming sped through have effected the several integrity investigation”, Second, only after rational tion. it was [the] Thus, agent affirmatively. agents responded decided to let that the discussion though letting the reason for Mr. Hill use Mr. Hill the car. have him, supplied by the car there no was charge of the case agent principal false, suggestion that the reason was testified: the decision to do so was made I or not should We discussed whether purposes. for their own out there and wait drive him Hill] [Mr. evidence, There is no either direct or lot, or not I should parking whether circumstantial, suggests the deci- drop him off and him there and drive out give sions to Mr. Hill the or the car later, or not pick up then him or whether product urging were the of Mr. Hill’s car. It wasn’t manda- he should use the chicanery or that at the time the decisions things tory, of those were ac- all three made, go were Mr. Hill did not intend to us, first, by all of ceptable, we felt at but through only with the transaction.1 The Cigich agent] myself and Dave [another *4 criminality evidence of is the circumstantial more Hill—as we talked about and Mr. devolving from the conduct of Mr. that, suggestion Mr. Hill made acquired possession he of the if he drove after be easier because would property. certain times Mr. Walters the fact that come out of the build- would Looking light [the dealer] at the evidence in the most car, ing, obviously him to the and if walk government, favorable to the it is inferable and he he didn’t have a car there knew pull away that when Mr. started to picking up, him that someone was would agents, from the he to evade wanted them. paranoid_ make Mr. Walters supports This conduct an inference that

HillMr. intended at that time to do some- property with the other than what provided from time to time auto- We agreed upon. had Mr. Hill’s been testimo- in mobiles ... to informants for the use ny adds the circumstance that while he negotiations and use of undercover work. go through intended to with the transaction basically case-by-case used on a It’s ba- possession money he received of the when point beg is Mr. Hill sis. The didn't car, changed his mind after- thought use the automobile. He it was a change is ward. This of heart unrefuted good idea, that it would enhance the by any other evidence. and the fact we would have— if difficulty there be no Mr. Wal- would evidence, In the face of this the trial him, ters walked out with he wouldn’t jury that to “steal” court instructed the have to make excuses. away [property] from one means to “take (Em- prosecutor by right.” When asked in without whether lawful added.)2 protect phasis allowed Mr. Hill to use the car is this foundation “to It dissent, Judge required suggests to be 1. In his McWilliams in The essential elements testimony proved to establish the offense the defendant’s there is in order evidence that jury could the Indictment are: have led the to believe Mr. in Hill ob- money property money and de- by tained the and FIRST: That the the car fraudulent means, belonged thereby to the providing in the Indictment scribed sufficient evidence of thereof, agency and had a guilt. hypothesized States or an United It is that one who obtains alleged; time $100.00 at the possession by value in excess guilty fraudulent means is Yet, the defendant stole such SECOND: That stealing. theory inapposite because property; and and jury was not instructed that it could consid- the defendant did so with the THIRD: that taking. er fraud as a means See n. 3. infra owner, temporari- deprive either intent to ly Additionally, while defendant stated he became permanently, of the of the use or benefit "apprehensive” about the transaction while in property taken. office, the DEA the inference that he did not at proof was No of the elements other definition go through that time intend to with the deal jury given jury. particular, the In was Indeed, does not follow. the evidence is to the fraud, trick, use of chican- not instructed on the ery, contrary appre- because Mr. Hill also stated his taking subterfuge effect the or other hension did not deter him at that time. stealing. necessary Furthermore, the crime of to constitute operative jury portion it could 2. The was instructed instruction states: his law, defendant fashioned defense and At common larceny was a argument against this court that he had crime a characterized a taking felonious right up carrying lawful away to the mo- of be longings of another with an apply ment he decided to it to intent to a use not steal. (1970). Larceny Am.Jur.2d agreed upon by Later agents. govern- codifications of the offense broadened its persuasive ment has no rebuttal to this definition include acts amounting to em argument. bezzlement, taking by pretenses, false myriad trespasses other initial line of de between. Evidentiary problems Id. frequently fense is that the in arose incorrectly because of the fine distinctions between the prosecution structed. The first takes the elements of each of these offenses. See Supreme Court to task for its definition of 342 U.S. at 72 S.Ct. at the verb “to steal” in Morissette v. United Therefore, Congress 254-55. attempted to 246, 271, 240, 254, many eliminate problems by these codi (1952): 96 L.Ed. 288 “to steal means to fying as one parameters crime with wide away take from one lawful trespass government. right keep without with the intention to so, however, doing Congress nonetheless wrongfully.”3 Although separate delineated means against definition, rails this it has not been Hence, offense could be committed. Id. Consequently, overruled. there is no doubt embezzlement, the elements of stealing, validity of the instruction.4 preserved conversion were 641 as *5 government The then focuses the committing alternate means of the statu of breadth the crime defined in 641 and § tory Yet, offense by therein defined. in argues stealing that is an offense not to be cluding all of those means within the defini by concepts circumscribed the narrow of offense, of Congress tion one did not intend argument the common law. The is sound those interchangeable. means to be Inter application the abstract but of bereft changeability any would eliminate reason this case. separately for enumerating the different distinguishable by means government recognize The fails to that accomplished. crime can be against while 641 a defines broad crime § property, States, Findley v. United 362 however, government argues, The (10th Cir.1966), F.2d 921 it nonetheless cir- concept stealing that the includes “all by cumscribes the means which that crime takings deprive felonious with intent to the Thus, though can be committed. even the rights title,” owner of citing United scope, nature of the crime is vast in it is 407, 397, Turley, States v. 352 U.S. 77 S.Ct. subject statutory delineations with inter- (1957).5 1 argument begs L.Ed.2d 430 That proof nal demarcations of cannot issue, however, which problem the because the Although broadly blurred. 641 was writ- § with which we are concerned is not wheth ten, persuaded historical “stealing” considerations er in the abstract is considered Congress distinguish act, between the differ- an all inclusive but whether in the ways ent in which the crime could be com- universally context of 641 it is inclusive § mitted. committing or a means of circumscribed a only pose merely

"consider whether the defendant has or has is not to be subverted because de- not committed the acts in the Indict- proffers fense counsel an instruction for the (Instruction 11, added.) ment." emphasis during first time trial. 3. This definition was the source of the trial Turley question 5.The was whether an auto- court’s instruction. by its mobile taken from owner means of a Likewise, impressed by govern- we are not the larceny crime other than common-law was "sto- argument proposal ment’s the that defendant’s meaning Dyer len” within the Act. The untimely. purpose of the instruction was The here, apposite though case is not the Court of instructions is to inform the law it the question affirmatively. the answered apply pur- must to the facts that it finds. This

764 stealing between The distinction ques- The statutory offense.6 particular how turns on and conversion way: Can in another be framed may tion gains possession One who obtained. 641 be sustained violating for § conviction taking it from an by wrongfully charges the offense indictment when 271, at 342 U.S. stealing only other steals. means was committed pos who comes into at 254. means 72 S.Ct. One proves another evidence means, property by lawful but be “No.” session must The answer employed? dominion wrongfully exercises afterwards not that the here is problem The rights against the that over beyond the were defendant acts owner, commits conversion. Moris true they had no rela 641, that but scope of § 254; 272, sette, 72 S.Ct. at 342 U.S. at government by which to the means tion 186, F.2d 192 May, 625 United having taken its the defendant accused (Sec Cir.1980) (8th (quoting Restatement position seem Contrary property.7 228). ond) way is no of Torts There government, proof urged by the ingly can be committed both offenses property of the converted the defendant involving proper person the same the same it. that he stole proof is not government simple reason ty at the same time are stealing and conversion concepts The wrongfully take that one cannot Morissette, 342 U.S. exclusive. mutually of it in a still come into Marte 271-72, at 254. See also 72 S.Ct. at Yet, the essence of that is lawful manner. 258, States, 218 F.2d ney v. United argument. 953, denied, Cir.1954), 348 U.S. (10th cert. charged the could have (1955). 442, 99 L.Ed. S.Ct. conjunctive, see 641 offense Turn reason, context of in the For that 398, er v. United instructions, it does indictment (1970), do but it did 24 L.Ed.2d 610 formed the when the defendant matter charge in a limited Having formed the so. proper over exercise dominion intent complain now government cannot way, the DEA office. he left the or after before charge be dismissed because that the must is unrefuted wrong the evidence demonstrates *6 the property, thus parted with the wilfully was made. choice support a taking necessary to of type REVERSED. present here. stealing charge of is theory of government’s using the Even MCWILLIAMS, Judge, Circuit deprive the intent Mr. Hill formed when dissenting: the offense property, of its the Hill was dissent. respectfully I stealing he did not because not be could 641. That violation of 18 U.S.C. until with a over the dominion exercise reads, as follows: part, in possession. statute into his rightfully came after it a context, appeal, cannot be sustained on a conviction fraudu we have said a 6. In a different jury stealing theory upon was not instructed. taking within the mean which the constituted lent ing 222, 237, States, taking proper prohibiting 100 the of U.S. of a statute United 445 Chiarella v. 1119, (1980); 1108, to steal. United States of a bank with intent L.Ed.2d 348 United 63 S.Ct. Cir.1982), Shoels, (10th rt. 1048, (5th 685 F.2d 379 Porter, v. 6 Cir. ce F.2d f.n. v. 591 3117, denied, 1134, 103 L.Ed.2d 77 462 U.S. S.Ct. argued 1979). prosecutor though the Even case, (1983). statutory In that we said the 1370 an theory jury, absence of instruc in the 2113(b) stealing was to of in 18 U.S.C. § offense theory, of that we permitting tion consideration meaning beyond given common-law a the the only speculate what inferences can larceny, statutory crime did not of but the crime speculation, un might jury have drawn. Such mutually means of com the exclusive include mitting case, improper. is of this der the circumstances Therefore, §in 641. the offense found (1st Cir.), Reardon, 681 cert. 787 F.2d Cola v. different problem we Shoels was the faced in 398, — U.S. -, denied, 93 L.Ed.2d 107 S.Ct. posed in this case. from that Moreover, govern (1986). judging the from 351 stealing of objections definition the ment's theory that the If it was the court, the is evident that fraud, the trial voiced to stealing accomplished it should afterthought. theory was an prosecution’s fraud proffered effect. On have an instruction to that money, property 641. Public or jury in that case was instructed that a embezzles, steals, records. Whoever so-called “criminal intent” was not an es- purloins knowingly or converts to his use sential element of charged. the crime another, any record, or the use of ... upheld Circuit Court the defendant’s con- voucher, money, thing or of value of viction, Supreme Court, but the on certiora- any department United States or or ri, Supreme reversed. The Court held that agency thereof ... shall be fined not though “criminal intent” is not men- $10,000 imprisoned more than or 641, tioned in it is an essential element of years, more than ten or both. ways all four set forth violating above for Morissette, In statute. particular Specifically, charge against Hill in a issue was whether a “criminal intent” was one count indictment he “did un- was that an essential element of the way fourth lawfully in money steal the amount of violating statute, i.e., “knowingly con- three thousand and one hundred dollars verts,” Supreme Court said it ($3,100.00) and a 1985 Chevrolet Camero Supreme was. The Court in that case also ..., automobile a of value of more observed that “there is considerable over- $100.00, Drug than both lapping embezzlement, in the stealing, pur- Administration, agency Enforcement an loining knowing and grouped conversion in States, 18, United violation of Title this statute.” Code, United States 641.” Section My disagreement basic majority with the was instructed that “to ‘steal’ opinion is that it holds as a matter law away means to take from one lawful possession that came right money into without and with the in lawfully. owner, and deprive my tent to automobile temporari either view of per- ly the record the is permanently of the use or benefit of such as to mit finder, property.” jury, This instruction as the fact was based to find that in Morissette language appearing on v. came into 246, 271, fraud, United deception, misrepre- automobile 254, 240, (1952), sentation, trickery, chicanery, L.Ed. 288 which lan in which guage based, turn, was itself event Hill posses- on lan would not have come into Irving Leff, Trust guage sion Co. 171 N.E. in a automobile (N.Y.Ct. note, App.1930). lawful manner. We Irving Trust was a parenthetically, gives property When one to another for a civil not a criminal case. specific purpose, receiving party however, was a criminal case and involves immediately upon receipt con- thereof a consideration of the same statute with use, verts the to his own one which we are here concerned. inference, inference, suggest I fair *7 portion The receiving party 641 here involved de that the never did intend to clares that “[wjhoever [1] embezzles, [2] fulfill the purpose steals, [3] purloins, [4] or knowingly con was given, and, by pretending that he would, money proper- verts his own use ... or he induced the owner of the any depart part company value the United States or his In property. agency [sjhall got possession ment or thereof Hill ... fined instant be $10,000 more imprisoned money purpose than or and automobile for the years, proceeding more than ten or if both” the value to a residential home where he and, “drug buy,” of such exceeds towas make a after $100.00.1 charge vehicle, getting money was that the defend and he at unlawfully “took-off,” ant did running lights “steal and convert” once red and “shaking” agents following of the United States. defend The who were court, ant was convicted in the district and a second vehicle. Hill later abandoned Obtaining property whereby 1. of the United tioned in one can violate the fraud, deception, misrepresentation, trickery, statute. chicanery ways is not one of the alternate men- automobile, took a taxi to a downtown government’s money, or hotel and used the BIGHEART PIPELINE CORPORA it, buy personal for his

part of cocaine TION, corporation, an Oklahoma later, couple days A Hill consumption. Plaintiff, “surrendered,” apparently at the insistence The was recov- sister. automobile (IN ered, money missing. all the was but The UNITED STATES of America SERVICE), TERNAL REVENUE testified, Further, trial, cross on at Defendant-Appellee, examination, he received the that before money keys to the automobile and began about the success to be “concerned” Also, drug one of the of the scheme. Inc., Energy, Defendant-Appellant, Core “sugges- that it was Hill’s testified (Hill) to drive to that he be allowed tion” drug purchase by proposed the scene of the Inc.; Company, Homestead Oil In HIS himself, drug agents testified whereas dustries, Inc.; Petroleum; Duncan De ordinarily they would drive an infor- that Wilson; Brightwell; lores Herman drug of a sale. mant to the scene Duggar, Charles Defendants. argument obtained No. 84-2598. intending money by deception, and vehicle use, appropriate both to his own was Appeals, United States Court of jury and I made Tenth Circuit. argument sup- plausible believe it to counsel ported by the record. And defense Dec. vigorously the converse to the argued quite i.e., jury, Hill received the lawfully without criminal

automobile therefore,

intent, and under the district “to ‘steal’ means to

court’s instruction that away

take from one lawful ...”, right could not have “sto-

without

len” the items. suggests majority opinion that the adequately on this

jury was not instructed may,

particular matter. Be that as it on

appeal, challenge makes no defense counsel instruction, any nor he claim that does jury fully more in- should have been any appeal, on matter. On coun-

structed that, argument only

sel’s on the record made, Hill, law, came into

as as a matter and automobile agree.

lawfully. With this I cannot That

issue for the to decide.2 *8 Shoels, (10th support my F.2d 379 Cir. belief that one who obtains United States v. 1982); fraud, States, (10th deception, Loney through 151 F.2d 1 of another v. United Cir.1945). Compare chicanery v. United with an intent to convert the same with Hite (10th Cir.1948). feloniously In Shoels we said to his own use converts it to his 168 F.2d 973 use, "steals,” rejected by Turley, (1957): reasoning the Su own see United in Hite was 397, preme Turley. 1 L.Ed.2d 430 Court in