United States v. Perry

The defendant Perry was convicted of transporting in interstate commerce stolen goods of a value in excess of $5,000, knowing same to have been stolen. 18 U.S.C. § 2314. On his appeal, the defendant principally contends that the district court erred in not granting his motion for a judgment of acquittal grounded on the government's failure to prove that the stolen property transported by him had a market value of $5,000 or more, a statutory prerequisite for conviction of the federal crime. The transported goods had been stolen from a manufacturer-wholesaler. We find that the ""market value"" of goods stolen from a wholesaler is the wholesaler's sales price, and thus we reject the government's contention that the ""market value"" should be fixed at the price that would have been charged by a retailer who had first purchased the goods at the wholesaler's price. The defendant's motion for a judgment of acquittal at the close of the government's evidence should therefore have been granted by the district court. Under the rule followed in this circuit, however, when a defendant puts on evidence after his motion for judgment of acquittal has been denied, the sufficiency of the evidence to support his conviction is to be determined by a reviewing court on the basis of the record as a whole. Nevertheless, since we find no evidence in the record which can properly be used to supply the deficiency in the proof of market value, we reverse the conviction. In its case in chief, the government contented itself with producing proof of the market value of stolen cashews and pistachios transported by Perry on a trip ending with his arrest on November 1, 1979. As we shall note more fully in Part II, below, the government's proof at most shows a total wholesale value of the cashews and pistachios of between $3,309.12 and $4,715.88, and a total retail value of between $6,540.48 and $8,446.56.