United States v. John Joseph Clutterbuck

421 F.2d 485, 1970 U.S. App. LEXIS 11151

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 1970
• Docket: 23598
• Status: Published

Opinions

MERRILL, Circuit Judge.

Appellant was convicted of theft of Government property in excess of $100 in value, in violation of 18 U.S.C. § 641.¹ He was given concurrent sentences of ten years on each of four counts and on one of the counts was fined $10,000.² The sole question presented on appeal is whether the Government established that the value of the articles stolen exceeded $100.

On four separate occasions over a five-week period appellant stole aircraft pump parts known as “yokes” from an Army surplus warehouse.³ The yokes stolen had been used by the Government and discarded as outworn. They were consigned to bins containing miscellaneous steel pump parts and were held for sale as steel scrap at prices ranging from six cents to ten cents a pound. On Government books they were no longer classified as pump parts, but as scrap.

The Government proved that the yokes cost the Government $88 each. On the authority of Fulks v. United States, 283 F.2d 259 (9th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961), it contends that this establishes the value of the thefts as measured by the “cost price.”

We disagree. Fulks dealt with unused surplus aircraft instruments held for sale as such.

We hold that where, as here, machine parts have been used by the Government to the point where their usefulness to the Government as such has been exhausted; and where they have been discarded and are held for disposal as scrap rather than as classified, segregated parts, they have lost their original identity and have been transformed into scrap. Consequently, the “cost price” of the parts is irrelevant, since in so far as the Government is concerned there is no longer anything to which that “cost price” can relate.

The fact that a discriminating thief, pawing over a scrap bin, can identify some of the scrap items as yokes and confine his theft to them does not change the result. Neither the thief’s purpose nor potential retransformation or use alters the fact that the thing of value stolen from the Government constituted steel scrap.

The Government, then, has failed to prove that the value of the articles stolen under any count exceeded $100.

The sentence imposed is set aside and the matter is remanded for resentencing.

1 . “Whoever * * * steals * * * any * * * thing of value of the United States * * *

Shall be fined not more than $10,000 or imprisoned not more than 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.

The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”

2 . He was also convicted on two other counts under the same statute. Sentence on those counts was suspended, and the convictions are not being appealed.

3 . The four counts respectively dealt with 100, 8, 32 and 30 yokes. The yokes apparently weigh about a pound each.