The opinion of the court was delivered by: FULLAM
The defendants are charged with conspiracy to violate 18 U.S.C. § 2314 (interstate shipment of stolen property valued in excess of $5,000). The facts have been stipulated, and the case is before the Court for decision non-jury. The crucial issue is whether the value threshold of $5,000 has been established. I expressly adopt and incorporate herein all of the facts set forth in the stipulation, which I now summarize as follows:
A quantity of blank forms intended to be imprinted as theater tickets were stolen from Ticketron outlets in Philadelphia and Jenkintown, Pennsylvania, and came into the possession of the defendants. By means of a photographic printing process performed in Philadelphia, the defendants caused these blank forms to resemble legitimate tickets to rock-and-roll concerts and similar events at various locations outside of Pennsylvania. They then caused these facsimile tickets to be transported in interstate commerce and sold at or near the locations of the respective concerts.
The blank ticket forms cost Ticketron approximately $57. There is no other evidence in the case suggesting the value of the blank forms. There is no suggestion of a "thieves market" for such items, or any other basis for assigning a value to the forms at the time of the theft.
The spurious tickets which were transported in interstate commerce, based upon the prices which the defendants printed upon the tickets, had an aggregate face value in excess of $15,000. It is clear that the total amount realized by the defendants from the sale of these spurious tickets was in excess of $5,000. Although a total of six different concerts, hence at least six different interstate shipments, are involved, and although it is doubtful whether the face amount of the tickets shipped on any one occasion was in excess of $5,000, the case involves a single overall conspiracy and it is therefore appropriate to use the figures representing the total of all shipments. Schaffer v. U.S., 362 U.S. 511, 4 L. Ed. 2d 921, 80 S. Ct. 945 (1960), affirming, 266 F.2d 435 (2d Cir. 1959).
The criminal sanctions of 18 U.S.C. § 2314 are applicable to
"whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud. . . ."
In U.S. v. Lester, 282 F.2d 750, 755 (3d Cir. 1960), cert. denied, 364 U.S. 937, 5 L. Ed. 2d 368, 81 S. Ct. 385 (1961), it was stated that value, for purposes of § 2314, is determined as of the time of theft. However, there was no occasion in that case for the Court to focus on the time as of which value is to be determined; the Court was considering the problem of goods for which there was no "market" (geophysical maps), although the goods obviously had very great value. The actual holding of the Court is summed up in the following language:
"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."
In cases arising under 18 U.S.C. § 2315 (receipt, concealment or disposition of goods stolen from interstate commerce), and in other somewhat analogous contexts, there is authority from other circuits to the effect that value may be determined at any time during the receipt or concealment of the stolen property. See, e.g., U.S. v. Riso, 405 F.2d 134 (7th Cir.1968); cert. denied, 394 U.S. 959, 22 L. Ed. 2d 560, 89 S. Ct. 1306 (1969); U.S. v. Kramer, 289 F.2d 909 (2d Cir.1961).
In this Circuit, the most recent discussion of the problem occurred in U.S. v. Weinberg, 478 F.2d 1351 (3d Cir. 1973), a case arising under 18 U.S.C. § 2315. There, genuine stock certificates having a value greatly in excess of $5,000 were stolen from interstate commerce. The theft was discovered, and a "stop-order" issued. Thereafter, the defendant negotiated the certificates, unaware that the stop-order had been issued. The trial court charged the jury that value was to be determined as of the date of receipt or disposition of the property. The evidence at trial did not address the possible effects of the stop order upon the value as of that time. Later, in denying post-trial motions, the District Court concluded that value as of the time of the original theft should control. 345 F. Supp. 824, 833 (E.D. Pa. 1972). The Court of Appeals expressly declined to evaluate the correctness of either proposition, because the par value of the stock greatly exceeded $5,000, and § 2311 defines "value" as par or market value, whichever is higher.
In U.S. v. Tauro, 493 F.2d 1402 (3d Cir. 1973) (Table), the Court affirmed without opinion a District Court decision, 362 F. Supp. 688 (W.D. Pa. 1973), which discussed the issue and, citing the Kramer and Riso cases, supra, adopted the view that value can be determined at any time during the receipt or concealment. However, this was essentially dictum. In Tauro, blank stock certificates were stolen in Denver, Colorado. The defendant negotiated the certificates in Pittsburgh, Pennsylvania, at which time the blanks had been fraudulently filled in, and signatures forged; as a result of the Pittsburgh transaction, the defendant caused the certificates to be transported in interstate commerce from Pittsburgh to New York City, and from New York back to Denver, Colorado. For present purposes, the significant distinctions between our case and the Tauro case are that in the latter, what was transported in interstate commerce clearly constituted "falsely made, forged, altered, or counterfeited securities" under the third paragraph of § 2314, hence ...