Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 88-40017--Michael M. Mihm, Judge.
Bauer, Chief Judge, Cummings and Flaum, Circuit Judge.
Stolen goods will generally fetch a price less than their retail or wholesale market value since the seller need not cover the actual costs of production and will often be interested in a quick turnover. At the same time, the fence may seek a discount in light of the risks associated with receiving "hot" goods, or because the seller cannot offer a warranty. That is not to say that these general characteristics regarding the valuation of goods in the "thieves' market" are applicable to every transaction. The facts presented in this appeal involve such a circumstance. The appellant paid an Army employee over four times as much for a document that he could have legitimately obtained from the government for $45.25. A jury subsequently found him guilty of receiving governmental property in violation of 18 U.S.C. § 641 and supplementing a governmental employee's salary in violation of 18 U.S.C. § 209(a). The central question before us is whether the $200 price that the appellant paid for the document in the "thieves' market" -- as opposed to its legitimate purchase price of $45.25 -- is the appropriate measure of the market value of the item for the purposes of sentencing under § 641. We affirm.
Michael Oberhardt, a partner with a defense contract consulting firm, served as a consultant to manufacturers doing business with the Armament, Munitions, Chemical Command ("AMCCOM") at the Rock Island, Illinois, Arsenal ("Arsenal"). While at the Arsenal on January 6, 1989, Oberhardt overheard Scott Bridge, a clerk with the small purchases division of the Arsenal, say that he had a current copy of the Federal Supply Code for Manufacturers list ("FSCM"). The FSCM is a non-classified, computer print-out of the names, addresses and other information regarding AMCCOM contractors. Oberhardt approached Bridge a few minutes later in a stairwell of the Arsenal and offered to pay him $200 for a copy of the FSCM. Bridge accepted the offer, and on the following day, he phoned Oberhardt from the Arsenal to tell him that a copy of the list was ready. Later that day, the two met in a hallway of the Arsenal to consummate the transaction. Bridge handed over a copy of the FSCM wrapped in a brown bag and Oberhardt gave Bridge $200 in cash. Oberhardt told Bridge that if anyone were to ask, he should say that the money was to cover the cost of printing the list. Before leaving, Oberhardt reminded Bridge that he could lose his job by selling a copy of the FSCM.
The Criminal Investigation Division Fraud Team at the Arsenal got wind of the deal and interviewed Bridge. Bridge confessed to selling the document, and as part of his agreement to cooperate, he allowed the FBI to record a contrived telephone conversation with Oberhardt. Bridge called Oberhardt and told him that he had received a grand jury subpoena, seemingly related to their transaction regarding the FSCM. Oberhardt assured Bridge that the subpoena had nothing to do with their deal. Nonetheless, Oberhardt told Bridge to claim that he won the $200 by gambling on a sporting event. As for his part, Oberhardt stated that he would lie to the grand jury if called to testify; he urged Bridge to do the same.
Oberhardt was subsequently arrested and indicted for bribery in violation of 18 U.S.C. § 210, receiving stolen governmental property in violation of 18 U.S.C. § 641, supplementing a governmental employee's salary in violation of 18 U.S.C. § 209(a), and improperly compensating a governmental employee in violation of 18 U.S.C. § 203. The trial court dismissed the improper compensation count before trial. Upon hearing the evidence, a jury acquitted Oberhardt of the bribery charge and found him guilty of receiving stolen goods and supplementing Bridge's salary.*fn1 After the district court denied Oberhardt's post-trial motions for acquittal and a new trial,*fn2 the defendant timely filed this appeal.
On appeal, Oberhardt's initial challenge is to his conviction under 18 U.S.C. § 641. He argues that the district court incorrectly ruled that the $200 paid by Oberhardt for the FSCM constituted the value of the list for the purposes of § 641. Oberhardt contends that on its face, § 641 does not contemplate valuing the goods according to their price in the "thieves' market" when the legitimate commercial price of the goods is available. Alternatively, he claims that under the rule of lenity, the statute should be strictly construed in his favor on this issue. We find each of these claims to be without merit.
The starting point for addressing this claim is the plain wording of statute. United States v. Podell, 869 F.2d 328, 331 (7th Cir. 1989). If Congress has spoken in terms that are clear and definite, the rule of lenity -- a doctrine of last resort -- does not come into play. United States v. Lowe, 860 F.2d 1370, 1376 (7th Cir. 1988) (citing Russello v. United States, 464 U.S. 16, 29, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983)). In pertinent part, the federal larceny statute provides that:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States or of any department or agency thereof, . . . or Whoever receives, conceals, or retains the same with intent to convert it to his own use or gain, knowing it to have been embezzled, stolen, purloined or converted --
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 ...