Unpublished Disposition, 904 F.2d 711 (9th Cir. 1989)

MEMORANDUM^* 

Don Bourke, Jr. appeals his conviction for theft from a tribal organization in violation of 18 U.S.C. § 1163. He contends that the district court erred in failing to submit a requested instruction defining value for purposes of section 1163. He also claims that the evidence was insufficient to sustain a jury finding that the property's value exceeded $100, the minimum amount necessary for a felony conviction, and that therefore the district court improperly denied his motion for judgment of acquittal. We affirm.

On January 18, 1989, Bourke was indicted and charged with one count each of burglary on an Indian reservation and theft from a tribal organization in violation of 18 U.S.C. 1153, A.R.S. 13-1506, and 18 U.S.C. 1163. The indictment alleged that Bourke had entered and remained unlawfully in the executive offices of the White Mountain Apache Tribe (the Tribe) with the intent to commit a theft therein and had stolen a painting belonging to the Tribe with a total value which exceeded $100. Bourke pled not guilty to each charge and proceeded to a jury trial. He was acquitted of the first charge and convicted of the second. Bourke was sentenced to 12 months in custody to be followed by 36 months of supervised release, a fine of $1,500 and restitution of $125 payable to the Tribe.

Theft from a tribal organization is established if the defendant embezzled, stole, knowingly converted to his use or the use of another, or willfully permitted to be misapplied, any of the money, funds, credits, goods, assets, or other property belonging to an Indian tribal organization. 18 U.S.C. § 1163. An individual found guilty under this statute:

Shall be fined not more than $5,000, or imprisoned not more than five years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1000, or imprisoned not more than one year, or both.

Id.

At trial, Nelson Lyle, manager of Graphic Services for McDonnell Douglas Helicopter company, the Company that gave the stolen picture to the Tribe, testified on behalf of the government that the original production cost and the replacement cost of the picture and its frame totaled between $100 and $130. Linda Geiser, office manager of Champlin Fighter Museum, testified on behalf of Bourke that a similar, unframed poster sold at the museum for $10.95. Following the presentation of this evidence, Bourke submitted a proposed jury instruction requiring the government to "establish the value of the property allegedly stolen because the indictment provides that the value of the property exceeds $100. Value means market value at the time the property was stolen." The district judge refused to so instruct the jury.

The district judge did not abuse his discretion. See United States v. Linn, 880 F.2d 209 (9th Cir. 1989). The plain language of section 1163 does not require that value be determined solely by market value. 18 U.S.C. § 641, regarding theft of public property, defines value as "face, par, or market value, or cost price, either wholesale or retail, whichever is greater." 18 U.S.C. § 661, regarding theft within the territorial jurisdiction of the United States, defines value in different terms, and many other criminal statutes do not define value at all. Moreover, in United States v. Bigelow, 728 F.2d 412, 413-14 (9th Cir. 1984), we indicated that value, even as defined in section 641, should be determined in a "practical" manner. In Bigelow the court assessed the value of the property by the amount of money the defendant accepted from a government agent for the purloined item. 728 F.2d at 414. See also United States v. DiGilio, 538 F.2d 972, 979 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (recognizing "that there must be some flexibility with respect to methods of proof of value.... 'any reasonable method may be employed to ascribe an equivalent monetary value to items.' ") (quoting United States v. Lester, 282 F.2d 750, 755 (3d Cir. 1960), cert. denied., 364 U.S. 937 (1961)). This court has never held that value as defined in any of these criminal statutes can be established only by market value.¹ 

Bourke's contention that he was entitled to a judgment of acquittal is equally meritless. Viewing the evidence in the light most favorable to the government, United States v. Yarbough, 852 F.2d 1522, 1542 (9th Cir. 1988), there was sufficient evidence from which the jury could have found Bourke guilty beyond a reasonable doubt of each element of the crime. The government's evidence regarding the value of the property allowed the jury to find that the picture was valued over $100 for purposes of the sentence and fine.

AFFIRMED.