UNITED STATES of America v. John DIGILIO et al., Appellant in No. 75-2218. Appeal of Harry LUPO, in No. 75-2219. Appeal of Peter SZWANDRAK, in No. 75-2220.
Nos. 75-2218-75-2220
United States Court of Appeals, Third Circuit
Argued April 8, 1976. Decided June 7, 1976. As Amended June 21, 1976. As Amended Aug. 4, 1976.
Rehearing and Rehearing En Banc Denied July 19, 1976.
538 F.2d 972
Dissenting Opinion Aug. 10, 1976.
The petition for review is dismissed.
Frederick P. Hafetz, Goldman & Hafetz, New York City, for Harry Lupo.
Thomas S. Higgins, Asst. Federal Public Defender, D. N. J., Newark, N. J., for Peter Szwandrak.
Jonathan L. Goldstein, U. S. Atty., James A. Plaisted, Asst. U. S. Atty., Newark, N. J., for appellee.
Before CLARK,* Associate Justice, and GIBBONS and HUNTER, Circuit Judges.
* Sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
These are consolidated appeals from judgments of conviction and sentence. Appellants John DiGilio (No. 75-2218), Harry Lupo (No. 75-2219) and Peter Szwandrak (No. 75-2220) were indicted, with three other persons not parties to this appeal for violations of
A jury found DiGilio, Lupo and Szwandrak guilty on both counts. The jury, however, found Lupo guilty only of theft of property of a value under $100. He was sentenced, therefore, in accordance with the proviso in the third paragraph of
I. THE FACTS
The evidence at trial tended to show that from the fall of 1971 through the spring of 1972 DiGilio, acting first through Lupo and Szwandrak and later through Grillo, procured the unauthorized copying of documents in the FBI files. The documents which were copied related to an investigation of alleged criminal activity by DiGilio. The unauthorized copies were made by Irene Klimansky, a clerk-typist in the Newark, New Jersey office of the FBI, during her working hours and with government paper and copying equipment. The original records were returned by Klimansky to the proper files. She delivered the copies of the documents to her then-fiance, George Kuczynski. Kuczynski delivered the copies from time to time to DiGilio‘s intermediaries, who paid him from $25 to $100 for each delivery. On one occasion Kuczynski received a $200 payment, but this was not related to the delivery of any specific group of documents, and was described as a Christmas bonus. There were multiple deliveries of copies from Klimansky to Kuczynski. Kuczynski broke down some of the deliveries from Klimansky into smaller components, in an effort to get more money from DiGilio. Thus there were more deliveries from Kuczynski to DiGilio‘s intermediaries than from Klimansky to Kuczynski. The evidence did not connect a payment in excess of $100 to any particular delivery. Nor was there evidence that DiGilio arranged with Kuczynski for the delivery in installments of a previously identified group of documents or records. During the apparent life of the conspiracy, however, over $1000 was funneled to Kuczynski through DiGilio‘s intermediaries.
Most of the above-recited facts were stipulated by the defendants. In addition, Kuczynski‘s testimony at trial identified Szwandrak as the initial intermediary from DiGilio, and tended to incriminate DiGilio, Grillo and Lupo as conspirators, and DiGilio as the source of payments and the ultimate recipient of the contraband copies. Kuczynski testified that he passed on documents both to Szwandrak and to Grillo. The remainder of the government‘s case consisted of statements made to various FBI agents by Lupo and Szwandrak, to whiсh more particular reference will be made in Parts IV and V of this opinion.
II. THE § 641 VIOLATION
The second count of the indictment charges that the defendants converted to their own use “records of the United States; that is, photocopies of official files of the Federal Bureau of Investigation . . ..” The statute under which they were indicted provides:
“Whoever . . . converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States . . . shall be fined . . . or imprisoned . . ..”
The defendants urge that the facts set forth above do not fall within
The government, on the other hand, is of the view that the misappropriation of information falls within
It is not necessary to accept the government‘s thesis in its entirety to hold that in this case a
We do not, by resting upon the narrower ground that a technical larceny has been proved, intend to imply a rejection of the government‘s broader interpretation of
“The history of
§ 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions.”
But since there was an asportation of records owned by the United States we need not in this case decide whether appropriation of information alone falls within
We recognize that the Department of Justice probably would not have presented this case for indictment but for the informational content of the documents. A statute like
III. THE VALUATION PROBLEM
In the 1948 revision of the criminal code, Congress consolidated several separate provisions treating the problem of theft from the United States. At the same time, it adopted a suggestion that the punishment provision of a preceding section be amended to make the offense punishable as a misdemeanor when the amount involved was small.11 The effect of the revision is to divide the statute, for purposes of sanctions, into felonies and misdemeanors.
Once it is established, however, that a person has wrongfully appropriated a government record or other thing of value as defined in
Section 641 defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” Obviously, the stolen records had no “face” or “par” value. No evidence was introduced as to their “cost price.” Thus we are concerned with market value. As a general rule, that value will be determined by market forces—the price at which the minds of a willing buyer and a willing seller would meet. See generally Abbott v. United States, 239 F.2d 310, 313 (5th Cir. 1956). If no commercial market for particular contraband exists, value may be established by reference to a thieves’ market. See Churder v. United States, supra, 387 F.2d at 833 (blank postal money orders); United States v. Ciongoli, supra, 358 F.2d at 441 (same); Jalbert v. United States, 375 F.2d 125 (5th Cir.), cert. denied, 389 U.S. 899, 88 S.Ct. 225, 19 L.Ed.2d 221 (1967).
While market value is thus usually determined by conventional market forces of some kind, this court in a related context under
Of course in most instances market value is used because under ordinary circumstances it is easily ascertainable. But where an exceptional type of goods that has no market value is the subject matter of the indictment, any reasonable method may be employed to ascribe an equivalent monetary value to the items.
It would do violence to the purpose of the statute were the Justice Department able to take action against the transportation of one carload of, let us say, household goods worth $5,000 but have their hands tied by semantics when the transporting is of geophysical maps worth a sizable fortune.
282 F.2d at 755 (footnote omitted).
In this case the government introduced the following evidence bearing on the value of the stolen documents: Kuczynski testified that he delivered groups of documents to DiGilio on 25-35 separate occasions, and that he received $25-$100 for each delivery. He also testified that DiGilio had told him that some of the documents he delivered were good and some weren‘t, and that DiGilio asked for better ones. Regardless of the quality of the documents, DiGilio paid something for each delivery, but the size of any payment was related to DiGilio‘s assessment of their value to him. Altogether, the evidence showed that Kuczynski received a little over $1000 from DiGilio. This sum included a $200 Christmas “bonus“.
The evidence also tended to show that there were many references and cross-references to other persons and files in the stolen documents. There was some testimony that these documents were being peddled around town, and that others besides DiGilio had been approached about purchasing them. There would appear to be sufficient evidence to sustain a finding that a thieves’ market for the stolen records existed.
We are not persuaded, however, that proof of the existenсe of a thieves’ market satisfied the government‘s burden of proof as to the value of the misappropriated records. For most tangible objects, some market exists, and proof of that fact alone is not enough to establish value in the market. Since there is no proof regarding exchange price in the thieves’ market generally, evidence showing only the existence of that market is insufficient on the question of value for felony sentences under
Discounting the $200 Christmas gratuity, the sum of the evidence on value was that DiGilio paid Kuczynski about $1000 in exchange for the duplication and transmission of a series of packets of FBI records. Because the thefts occurred in installments, however, each of which would amount to a separate offense, the more-than-$100 figure cannot be attained simply by aggregating the values of all the documents taken.13 While the evidence showed that Kuczynski sold documents to DiGilio on 25-35 occasions, there is no evidence showing the number of timеs Klimansky actually copied and took them. That number would appear to be less than the number of sales, since Kuczynski testified that he sometimes broke groups of documents down into smaller packets. There is no evidence establishing that the value of any single document or group of documents taken, as opposed to sold, at any time exceeded $100.
Of course, the price DiGilio paid for each batch of documents he received is some evidence of value. Whether or not the records had any value to DiGilio, however, he paid not less than $25 per delivery. It is plain, then, that DiGilio was paying both for Kuczynski‘s services in arranging the thefts, and for the documents themselves. The government produced no evidence apportioning the transmittal price between the service, which was purchased, and documents, which were stolen.
The government would have us hold that because in the aggregate DiGilio paid over $1000, the jury could infer that at least one of the thefts was of records having a market value of over $100. The case law that has considered the issue of market value does not support the government‘s positiоn. Judge Sobeloff‘s opinion in United States v. Wilson, 284 F.2d 407 (4th Cir. 1960), is perhaps the leading federal case. There the defendant was charged under
If a value of more than $100.00 had been proved along with the other elements of the crime, the sentence of 7½ years would have been within permissible limits. The Government, however, failed to produce any evidence whatsoever as to the value of the stolen weapons. We are asked to take judicial notice that 72 rifles are worth more than $100.00, but we cannot on the basis of anything in the testimony form a judgment as to value for the purpose of supporting the greater penalty. Nor, in the absence of any proof of value, could the jury be permitted to speculate on this point merely from the appearance of the articles. A fact which distinguishes a violation punishable by imprisonment for not more than one year from a violation punishable by imprisonment for ten years cannot be permitted to rest upon conjecture or surmise. In order to sustain the imposition of the higher penalty, it was as incumbent upon the Government to prove a value in excess of $100.00 as it was to prove the identity of the defendant as the perpetrator of the crime, or the ownership of the property.
284 F.2d at 408. Wilson was followed in United States v. Horning, 409 F.2d 424 (4th Cir. 1969). In
In United States v. Thweatt, 140 U.S.App.D.C. 120, 433 F.2d 1226 (1970), a case involving the District of Columbia larceny statute, the court held that, where the only evidence on the value of stolen clothes was the purchase price four years previously and the testimony that a pawnbroker loaned $55 on the items, the government had failed to carry its burden of proving value in excess of $100:
“When there is a possibility of convicting the defendant of either grand or petit larceny—offenses which carry significantly different penalties and which are distinguished solely by the value of the property taken—it is essential that the government introduce evidence of that value in order to give the jury a firm basis upon which it can render a verdict.”
Accord, Boone v. United States, 296 A.2d 449 (D.C.Ct.App.1972) (jury can‘t speculate on value from appearance of stolen property). See also United States v. Thomas, 135 F.Supp. 662 (E.D.Pa.1955); United States v. Barker, 313 F.Supp. 987 (D.Del.1970); Carlson v. United States, 187 F.2d 366 (10th Cir. 1951); Cooper v. State, 43 Ala.App. 385, 191 So.2d 224, cert. denied, 280 Ala. 711, 191 So.2d 229 (1966); Johnson v. State, 102 So.2d 412 (Fla.Dist.Ct.App.1958); Price v. State, 165 Tex.Cr. 326, 308 S.W.2d 47 (1957). Compare Head v. Hargrave, 105 U.S. 45, 49-50, 26 L.Ed. 1028 (1881).
We conclude that there was insufficient evidence from which the jury could find that any of the several thefts that the government proved was of a record having a value in excess of $100. We do not approve the court‘s charge that the jury could determine the cost of gathering and producing the information or the market value in a thieves’ market “on the basis of [its] common knowledge and experience, and the reasonable inferences to be drawn from the evidence.” No reasonable inferences оf market value of property involved in any particular theft could be drawn from the evidence. Permitting juror speculation as to value in the absence of evidence was, for the reasons set forth in United States v. Wilson and the cases which have followed it, error.
We hold that the evidence does not support the felony convictions of DiGilio and Szwandrak under
IV. Bruton ISSUES
In the course of the investigation leading to the instant indictments, FBI agents interviewed defendants Lupo and Szwandrak, and obtained statements in which each incriminated himself and others in the theft of the FBI records. Szwandrak also incriminated himself and others in testimony before the grand jury. At trial these statements and grand jury testimony, in redacted form, were read to the jury. The court cautioned the jury in each instance not to consider the statements as evidence against any defendant other than the utterer. It added that “[i]n order to aid you in adhering to that instruction certain omissions have been made from the statement. . . by using . . . the word ‘blank’ . . ..” Since neither Lupo nor Szwandrak testified at trial, no co-defendant could
The Lupo and Szwandrak statements, as read to the jury, contained no references whatsoever to DiGilio. In Lupo‘s statement, all incriminating references to defendant Grillo were omitted, but one non-incriminating reference to Grillo was retained and no references to Szwandrak were deleted. Thus Lupo‘s statement, as read to the jury, contained incriminating references to Szwandrak. Both Szwandrak‘s FBI statement and his grand jury testimony, as read to the jury, contained incriminating references to Lupo. Non-incriminating references to Grillo were included but incriminating references to Grillo were excised.
The net effect of the redaction process was to preserve incriminating references to co-defendants who incriminated themselves in pre-trial confessions, but to redact incriminating references to co-defendants who had not. Each of the appellants, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), says that this was prejudicial and reversible error. Bruton held that a defendant is denied his sixth amendment right of confrontation when the incriminating confession of a co-defendant is introduced, unless the accused is given an opportunity for cross-examination of his co-defendant.
A. Lupo and Szwandrak
This court has on at least three occasions approved the use at trial of the confessions of co-defendants where all references to the appealing party had been redacted. See United States v. Lipowitz, 407 F.2d 597 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969); United States v. Panepinto, 430 F.2d 613 (3d Cir. 1970); United States v. Alvarez, 519 F.2d 1052 (3d Cir.), cert. denied, 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975). These holdings were predicated on our finding that the redacted versions of the confessions did not in any way suggest the appellants’ participation in the admitted offenses. That certainly was not the case with the mutually incriminating hearsay statements of Lupo and Szwandrak. No case in this circuit has authorized the admission of parallel statements by co-defendants as an exception to the Bruton rule. The government asserts that such an exception is recognized in the Second Circuit and elsewhere. That notion arises, we think, from an overly broad reading of Judge Hays’ opinions in United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970), and United States еx rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972). In those state habeas corpus cases the Second Circuit affirmed the denials of the petitions alleging Bruton violations such as occurred here, not because it approved of the practice of admitting nonredacted parallel confessions, but because in each instance it could find the hearsay violations harmless beyond a reasonable doubt. Metropolis v. Turner, 437 F.2d 207, 208-09 (10th Cir. 1971), another state habeas corpus case, reaches the same conclusion and explains Catanzaro as a harmless error case. The only direct appeal which has been called to our attention involving the type of Bruton violation committed here is United States v. Spinks, 470 F.2d 64 (7th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972). It, too, rejects a Bruton challenge not on the ground that there was no violation, but because any error was harmless beyond a reasonable doubt. See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d Cir. 1975).
The harmless error rule is not a predicate for the admission of evidence. We expressly disapprove of the suggestion that there is a “parallel statements” exception to the Bruton rule in this circuit. Hearsay errors both of constitutional and of non-constitutional dimensions will in appropriate cases be regarded as grounds for reversаl, and this includes the hearsay error upon which the Bruton court focused.
Nevertheless, the Supreme Court has made it clear that the constitutional harmless error rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), is applicable to a Bruton violation. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In this case Kuczynski testified without contradiction that Szwandrak served as the intermediary between DiGilio and him, disbursing cash in exchange for the stolen government documents. That uncontradicted testimony was corroborated by Szwandrak‘s confession to the FBI and his statement to the grand jury. In these circumstances the error of admitting the unredacted Lupo statement, which added nothing of substance to the government‘s case, was, we find, harmless beyond a reasonable doubt.
The evidence against Lupo differs from that against Szwandrak in only one respect. While Kuczynski‘s testimony directly implicated Szwandrak, it implicated Lupo through the statements made about him by other members of the conspiracy and in furtherance of its ends. This evidence, though different in kind, was not in our view significantly different in weight in this instance. The totality of the evidence of guilt was overwhelming. We find in Lupo‘s case that the error of admitting Szwandrak‘s unredacted statements implicating him was harmless beyond a reasonable doubt.
B. DiGilio
DiGilio‘s Bruton argument is postured sоmewhat differently from that of his co-defendants. All references to his name were deleted from all of his co-defendants’ statements. DiGilio argues, however, that because references to the activities of unnamed co-defendants remained, and in some instances those co-defendants were named, the jury must inevitably have associated his name with the blanks in the redacted statements.
The redactions performed here differed qualitatively from the redactions we approved in United States v. Alvarez, supra, and United States v. Lipowitz, supra, where all references to co-defendants were omitted, and even from the redaction in United States v. Panepinto, supra, where all names were deleted. Despite the district court‘s limiting instruction, the jury might well have drawn the inference that DiGilio was the “blank” referred to in the Lupo and Szwandrak statements. We cannot approve of the practice of limited redaction in which the redaction exception gradually swallows up the Bruton rule. We find merit to DiGilio‘s contention that in the particular circumstances of this case a Bruton violation did occur.
The government‘s case against DiGilio consisted primarily of the testimony of Kuczynski, who testified about incriminating conversations that he had directly with DiGilio. Kuczynski wаs, of course, an accomplice. But his testimony implicating DiGilio was corroborated to a significant extent by the stipulated fact that only records relating to DiGilio were removed from the FBI office. DiGilio called several defense witnesses, but none of them contradicted Kuczynski‘s testimony. Thus in DiGilio‘s case, as in those of Lupo and Szwandrak, we find that the error of admitting without cross-examination the co-defendant statements was harmless beyond a reasonable doubt. Brown v. United States, supra.
V. SUPPRESSION ISSUES
Lupo and Szwandrak urge that the district court erred in admitting their statements because they were obtained in violation of the due process and self-incrimination clauses of the fifth amendment. These appellants contend that the confessions were procured as the result of an illegal arrest, and of an abuse of process of this court, and in any event were involuntary.
A. The Facts
(1) Lupo
FBI agents approached Lupo at his place of employment at 8 a. m. on July 14, 1974, identified themselves, and indicated they wished to question him about the theft of the DiGilio records from the FBI office. The agents advised Lupo of his Miranda rights and he signed a Miranda waiver. At
(2) Szwandrak
On July 17, 1974 two FBI agents went to the home of Szwandrаk‘s mother. Szwandrak did not live there, but she furnished the agents with his address. The agents proceeded to that address and promptly served Szwandrak with a “forthwith” grand jury subpoena identical to that served on Lupo. Szwandrak admitted the agents to his home. The agents read Szwandrak his Miranda warnings and he signed a Miranda waiver. The agents then questioned him for an hour and a half, during which he made incriminating statements. When the interrogation was completed Szwandrak drove his car to Newark, accompanied by one FBI agent. They went to the office of the Organized Crime Strike Force and later to the office of the United States Attorney. Szwandrak was interrogated three additional times, always after having been advised of his Miranda rights. Some incriminating details were added to his prior confession during these interrogations. At 4:30 p. m. he was taken before the grand jury where he gave the testimony later used at the trial.
B. The illegal arrest contention
Both Lupo and Szwandrak contend that their statements should have been suppressed as the fruits of an illegal arrest. They contend that the “forthwith” subpoena was used as the substitute for an arrest warrant, and as a means for subverting the requirement that a judicial officer make a probable cause determination prior to issuing an arrest warrant. Fed.R.Crim.P., Rules 4, 9. Under Rule 17, Fed.R.Crim.P., the clerk issues subpoenas in blank.
We recognize that the misuse of “forthwith” grand jury subpoenas issued in blank pursuant to Rule 17 may circumvent the more rigorous procedural requirements of Rules 4 and 9. But there are several difficulties with the argument of Lupo and Szwandrak that such putative misuse justifies suppression in this case. First, service of the “forthwith” subpoenas took place at a time when the government already had a statement from Kuczynski establishing probable cause for the arrest of both of them. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Court held that where probable cause for arrest exists the fourth amendment does not require a warrant even where, as here, there is ample time to obtain one. It is true that the authority of FBI agents to arrest without a warrant is limited to cases where they have reasonable cause to believe that the person to be arrested has committed a felony.
We need not rest our holding that neither Lupo‘s nor Szwandrak‘s confession was the fruit of an illegal arrest upon the recent decision in Watson.14 In connection with the suppression motions, the district court found as a fact that neither Lupo nor Szwandrak were under any restraint whatsoever at the time they gave their incriminating statements to the FBI agents. See
C. The abuse of process contention
Lupo and Szwandrak next contend that in the exercise of our supervisory power to prevent the misuse of subpoenas issued pursuant to Rule 17, we should prohibit the use of “forthwith” grand jury subpoenas as a means for facilitating investigatory interrogation outside the presumably protective presence of the grand jury. The record here amply supports the contention that the subpoenas were misused. We havе in the past made clear that we do exercise supervisory power over the utilization of Rule 17 subpoenas. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973). Rule 17 does not, in our view, authorize the use of grand jury subpoenas
But it does not follow that we can enforce a suppression remedy for the abuse of Rule 17 process. Congress has decreed in
D. Voluntariness
Szwandrak does not contend that his incriminating statements are involuntary in the fifth amendment sense. Lupo urges that his confessions were involuntary because the FBI agents cajoled him into incriminating himself with promises and inducements, and by threats. It is not disputed that Lupo received Miranda warnings. Thus, the issue in the suppression hearing was whether in the totality of the circumstances the confessions were voluntarily given.
In summary, we reject all the grounds for suppression advanced by the appellants.
VI. DIGILIO‘S COMPETENCE TO STAND TRIAL
On April 7, 1975, counsel for DiGilio moved on his behalf pursuant to
Ultimately, the court concluded that DiGilio was competent to stand triаl. At the hearing there was substantial evidence, which the district court apparently credited, tending to establish that DiGilio suffers from organic brain disorders of traumatic origin, and functions at a retarded level. The court nonetheless concluded that he was legally competent. That conclusion is reflected in findings of fact dictated from the bench at the conclusion of the hearing
“The test is: Can he cooperate with counsel to a reasonable degree? And can he achieve a reasonable understanding of the nature of the charges against him?
I find, in short, that Mr. DiGilio can do both; that while he is mentally impaired because of his organic brain disease, that impairment is not so extensive that I should declare him incompetent to stand trial. And by the standard I have previously quoted I do find him, in fact, competent to go to trial in this case.”
DiGilio‘s attorneys urge that the court erred in two significant respects. They first complain that in weighing the evidence the court proceeded on the assumption that DiGilio had the burden of proof. As we pointed out above, the court explicitly announced that assumption. They next complain that the court, in evaluating the evidence of competency to stand trial, erroneously took into account DiGilio‘s committability in the event he were adjudicated incompetent. Certainly the court in its findings made reference to that factor.16
There is surprisingly little case law dealing with the allocation of the burden of proof in a proceeding under
In the somewhat analogous context of a proceeding under
“Two of the District Judges specifically ruled that, even if the Government had the burden of establishing such competency beyond a reasonable doubt, as to which we now express no opinion, it had carried that burden; and it is fairly inferable that the third District Judge, who, by consent heard the testimony with one of the other judges, did likewise.”
On petition for rehearing in banc the court divided sharply over the effect to be given to the
We note that
But we do not believe that it is reasonable to construe
Allocation of the burden of proof will be significant, in theory at least, only in the rare case when, assuming the evidence is weighed by the preponderance of evidence standard, the conflicting evidence is in equipoise in the mind of the fact finder. At that point the triability of a defendant will depend on where the burden of proof is placed. To put the question аnother way, what we are determining is a rule of law, of due process dimensions, that a defendant, about whom the evidence of competency to stand trial is in equipoise, should or should not be tried. If, as the Court has made clear, the concept of competency to stand trial is grounded in notions of fundamental fairness in the operation of the judicial process, see Drope v. Missouri, supra, 420 U.S. at 171-72, the question can only be answered in the negative. Evidence showing competency must be more persuasive than that showing incompetency. Of necessity, then, there is no room for a rule of law placing any burden of proof on the defendant.20
DiGilio‘s counsel would have us go further, and hold that the government must prove competency, once it is in issue, beyond a reasonable doubt. The beyond-a-reasonable-doubt test is constitutionally mandated for all elements of a criminal offense. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). But competency to stand trial is not an element of the crimes for which DiGilio was indicted. Compare Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Government of the Virgin Islands v. Bellott, 495 F.2d 1393 (3d Cir. 1974) (sanity at the time of the offense). Moreover, the government is not, on every subsidiary issue arising during the course of a criminal proceeding, required to satisfy the beyond-a-reasonable-doubt standard. The preponderance-of-the-evidence test has been utilized in determining the admissibility of evidence under the constitutional exclusionary rules. See, e. g., Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (plurality opinion) (voluntariness of a confession); United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (fourth amendment suppression). We do not believe that a more rigorous evidentiary standard is warranted here, and hold that a defendant‘s competency to stand need be established by a preponderance of the evidence only.
Since the district court, in weighing the evidence on what was obviously a close and troublesome issue, explicitly referred to
There remains the question whether the district court must hold a new hearing, and if DiGilio is found competent, conduct a new trial. Here the hearing was extensive and is not so remote in time as to present insurmountable problems of recollection. While nunc pro tunc determinations of mental competency are not favored, Drope v. Missouri, supra, 420 U.S. at 183, 95 S.Ct. 896; United States v. Pogany, 465 F.2d 72, 79 (3d Cir. 1972), we have in a state habeas corpus case recently recognized the possibility that a nunc pro tunc determination may be constitutionally permissible. See United States ex rel. McGough v. Hewitt, 528 F.2d 339, 343-44 (3d Cir. 1975). The district court is in the best position to determine whether it can, either on the present record or with supplementary testimony, make a retrospective determination of DiGilio‘s competency throughout his trial. If the court concludes that this can be done, and concludes after applying the proper burden of proof that DiGilio was competent, then no new trial will be required.
Since DiGilio‘s case is being remanded for further proceedings, it is appropriate to note that if the district court intended by its reference to DiGiliо‘s noncommittability to suggest that this factor is relevant to the competency inquiry, we do not agree that it is. Congress has dealt with the problem of committability, explicitly if not satisfactorily, in
VII. CONCLUSION
The judgment of sentence of the district court in the appeal of Harry Lupo (No. 75-2219) will be affirmed. The judgment of sentence in the appeal of Peter Szwandrak (No. 75-2220) will be vacated and the case remanded to the district court for resentencing within the lower range of sentences permitted by this opinion. The judgment of sentence in the appeal of John DiGilio (No. 75-2218) will be vacated and the case remanded to the district court (1) for a determination (a) whether the court can now decide DiGilio‘s competency at the time of his trial and sentence, and if so, (b) whether he was competent at those times. If the court concludes that DiGilio was competent at the time of his trial and remains so, he should be resentenced within the lower range of sentences permitted by this opinion. If the court finds that it cannot retroactively determine DiGilio‘s competency, he must be granted a new competency hearing and if found to be competent a new trial. In such a new trial the district court should decide in the first instance whether, in view of the government‘s failure of proof on the value of the stolen documents at this trial, double jeopardy considerations will limit the range of sentences to those which we today hold permissible.22
United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973); United States v. Howard, 432 F.2d 1188, 1191 (9th Cir. 1970). See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Before CLARK, Associate Justice, SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
The petition for rehearing filed by appellee in the above entitled case (75-2218 and 75-2220) having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
ROSENN, Circuit Judge, would grant rehearing.
OPINION SUR DENIAL OF PETITION FOR REHEARING
ROSENN, Circuit Judge.
I believe this case merits consideration by the court en banc. The issues on which the panel vacates the sentence of the defendants DiGilio and Szwandrak have wide reaching ramifications and the Government asserts that they were neither briefed nor argued by the parties in this court.
Count II of the indictment essentially charges that the defendants “commencing on or about November 1, 1971, to on or about June 30, 1972,” in furtherance of the conspiracy charged in Count I, stole, purloined, and converted to their own use photocopies of official files of the Federal Bureau of Investigation of a value in excess of $100. This language, especially since it incorporates the conspiracy allegations of Count I charging a scheme to surreptitiously remove photocopies of official files, plainly charges a single plan to steal photocopies of official FBI files over a period of time.
The Government avers that the district court charged the jury that if the installment deliveries of documents from DiGilio‘s file were made pursuant to a single criminal plan, the values of all such installments could be aggregated for the purpose of determining whether records valued at $100 had been stolen within the meaning of
The panel opinion, however, rejects the single plan finding. It rests on the premise that since the thefts occurred in installments, each installment must be treated as a separate offense, and thus “the more-than-$100 figure cannot be attained simply by aggregating the values of all the documents taken.” (at p. 980.) The general rule appears to be to the contrary. People v. Cox, 286 N.Y. 137, 36 N.E.2d 84, 86 (1941); Hurlburt v. Falvey, 298 N.E.2d 897 (Mass.App.1973); Annot., 53 A.L.R.3d 398 (1973). “As long as the larceny is held to be pursuant to a single intent, and one complete illegal scheme, it matters not the length of the period over which the takings continued.” People v. Cox, supra, 36 N.E.2d at 86. Where the Government charges and proves a series of acts under a sustained plan and intent to commit a single larceny, aggregation of values for the various takings is permissible. Hurlburt v. Falvey, supra, 298 N.E.2d at 897. This is the rule in twenty-eight of the thirty state jurisdictions surveyed in 53 A.L.R.3d 398 (1973).
The payments by DiGilio of ovеr $1,000, regardless of whether they included services for an intermediary in arranging the theft, was evidence from which the jury could infer a value of the records to DiGilio of more than $100. This evidence afforded a concrete base for the jury‘s verdict; it required no speculation by the jury as to the aggregate value.
Accordingly, I dissent from the order denying rehearing en banc. Circuit Judge WEIS joins in this dissent. Circuit Judge ADAMS has authorized me to state that he, too, believes the matter presented here is of sufficient importance to warrant consideration by the Court en banc.
Notes
“Shall be fined not more than $10,000 or imprisoned not more then ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
If, however, the offense, the commission which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”
Intangible personal property is also meant to be broadly construed. It is intended to cover contract rights, including insurance, guarantees and other obligations, privileges, interests, and claims as well as intellectual property. Thus, theft of trade secrets and documents containing confidential information would be covered under section 1731.
In prohibiting the theft of documents—and duplicates of documents containing confidential information—this section reflects current law. Where documents constitute the property “obtained or used,” as that phrase has been defined, the “ideas” contained in the documents, rather than the paper on which the ideas are written, establish the value of
the stolen property. The Second Circuit in United States v. Bottone, has held that the copying of documents containing a secret formula and the asportation of the copies violate the 18 U.S.C. § 2314 theft provision even though the originals of the documents were returned to their appropriate place. Senate Comm. on the Judiciary, Report on the Criminal Justice Reform Act of 1975, 94th Cong., 1st Sess. 675 (1975).
“In the second place, we would be in that situation where you have a man indicted by a grand jury, accused of [a] serious crime, and he is not committable and not triable, and therefore perpetually able to avoid answering the charges society has brought against him.”