United States v. John Joseph Clutterbuck
421 F.2d 485
9th Cir.
1970
Check Treatment

*1 suggests that a verdict issue the factual when cannot be directed “contemplation is involved. of death” clearly in this case The facts statutory presumption and

rebutted the speculative inferences overwhelmed I would af- the Government. offered firm. Hogan (argued), Davis, Cal.,

James E. Lally, Lally, William H. Martin & Chidlaw, Desmond, Desmond, Louis N. Miller, West, Sacramento, Desmond & Cal., for defendant-appellant. STATES UNITED (argued), James J. Simonelli Asst. Atty., Hyland, Atty., U. S. John P. U. S. plaintiff-appellee. CLUTTERBUCK, Joseph Defendant-

John MADDEN, Judge Before of the Court Claims, and MERRILL and Judges. Circuit States Court Circuit. Ninth MERRILL, Judge. Jan. 1970. Appellant convicted of theft property in excess of

value, in of 18 violation U.S.C. 641.1 given He concurrent sentences of ten years of four counts and on one on each $10,000.2 the counts was fined question appeal presented on sole established that of the articles stolen exceeded $100. separate

On over a five- four occasions period appellant week stole Army “yokes” from an known as yokes stolen warehouse.3 The had been used They discarded con- as outworn. signed containing to bins miscellaneous pump parts were held * * * * * * any 1. steals word ‘value’ means “Whoever * * * either whole- * * * States 2. $10,000 more than He be fined not Shall also convicted on two other imprisoned years, not more than ten counts under the same statute. Sentence both; suspended, but if the value of such those counts was and the $100, being appealed. he not exceed the sum of convictions are not more or im- be fined not than prisoned year, respectively one 3. not more than The four counts 100, 8, yokes. yokes ap- both. 32 and 30 parently weigh pound about a *2 486 [Emphasis ranging If the value crime. prices added]. from six scrap at as steel felony a if but is crime is over the pound. On Govern- a ten cents to cents longer not ex- of such the value does they classified were no

ment books ais mis- scrap. the crime ceed sum of $100 the parts, as pump as demeanor. yokes proved the that The Government prosecutions for In order to facilitate On the cost the Government $88 States, government property, the 283 theft of Con authority of v. Fulks United gress section, denied, in the “The (9th 1960), defined value Cir. F.2d 259 693, or market 692 word ‘value’ means 5 L.Ed.2d 365 81 S.Ct. U.S. value, or wholesale (1961), this establishes it that contends by is [18 U.S. as measured of thefts the the value Congress obviously knew C. price.” § 641]. the “cost defining doing since what it was in un- Fulks with We 2311, defining for value 18 U.S.C. § instruments held aircraft used covering chapter for the in the sections as such. eign transportation of interstate here, where, machine as hold that of there no mention by parts the Govern- been used have of The in the definition value. their usefulness the where ment to purpose of one of the 18 U.S.C. § as such has been to exhausted; Government chapter, penalize sections they have been and where violators of who utilize cause state law disposal are held for as discarded and foreign utilized, be channels of segre- classified, scrap than as rather transport interstate commerce gated original they parts, have lost their Sheridan, property. v. United States 329 identity transformed into and have been 332, 91 L.Ed. U.S. 67 S.Ct. 359 price” Consequently, of scrap. the “cost (1946), 834, 67 reh. den. 329 U.S. S.Ct. irrelevant, parts far is since in so as (1947). 91 706 The no is Government prosecutions involved in 2314 § longer anything to that “cost private generally property. is Thus price” can relate. Congress distinction made a between thief, discriminating a The fact that private prop property and bin, identify pawing scrap over a can erty, type proof required to in the scrap yokes items some prove value. change his theft to them does confine Merely had because purpose result. Neither the thief’s parts known classified potential nor retransformation “yokes” scrap for sale as thing alters the that of value fact longer part a that no mean thing each stolen from the constituted states that of value. scrap. parts “lost their iden- Government, then, has failed tity into transformed and have been prove that articles the any price’ Consequently scrap. the ‘cost stolen under count exceeded $100. irrelevant, so far is since in imposed is set aside no the longer anything is concerned there is resentencing. is matter remanded that ‘cost to- which price’ the ma- can In relate.” substance Judge jority judicially or re- has JAMES M. amended (dissenting). formed the statute. respectfully dissent. if is as con material Even surplus property majority opinion in Fulks violence trasted Congress, 18 statute enacted U.S. part, provides 81 C. cert. denied 365 U.S. 641. The statute “thing (1961), reh. den. 692 whoever steals of value L.Ed.2d a guilty a 365 L.Ed.2d United States” thing and ment as he saw fit. It concluded stat- a it is still substance, ing that 641 “would have In been the statute.

comes within Congress yoke, power saying a constitutional provided longer even if had not value. it for a no lower penalty maximum fine States, (6 Cir. *3 In Bernhardt v. United ment in case the ‘value’ of the 1948) den. 169 F.2d defined, exceed the sum (1949) 93 L.Ed. 437 [page $100.00.” 336]. charge and was under 18 U.S.C. § Thus, alleged in our property case the trial was furnished on court military or naval service convictions felonies could fined use of the up imposed contended an amount of the It States. was imprisonment goods any up declared time to ten had been years. reported If the surplus inven- and as such Administration, tory punishment imposed, about the War Assets the an- segregated (1) imposed swer only the court and there could have available jail fines, purchasers. However, goods short sentences or were small army (2) army and depot it is our function at still control, and review imposed Military still ac- is within and statutory goods left limits. physically until the countable depot. The court the confines place decision an will “It is that the stated: conceded additional burden on the goods originally the classi- within came prosecution government prop- theft of for the furnished fication erty, in that the Government will have military the United of the service of ascertain retail within that think it was still States. wholesale, proof and base its army long so classification thereon. responsible its theft for it and that distinguished Fulks cannot application the am- unlawful were within ground surplus, and here alleged bit to have been the statute scrap was the materials involved. Fulks [page violated.” 985]. judgment controls this ease and the goods case, In our whether the should be Affirmed. Fulks, considered was still the control within of the and the ambit of 18 U.S.C. 641. O’Malley v. United cert. den. 350 U.S. UNITED STATES although issue, not in on our

informative. an There attack was made WHITE, Jr., Defendant- Arthur Wilson on 18 U.S.C. use of that the stolen, of the article rather than its value the time of the at theft, repugnant to Amendment VIII States Court of prohibited the Constitution which Fifth Circuit. imposition of or of cruel fines excessive Dec. 1969. punishment. and re- unusual The court garded argument fetched as far frivolous, pointed out that the maxi- imprisonment mum limits of fine and

were within the of the trial discretion judge court in his discretion

might impose such fine and/or