Appendix — Trupin v. United States

PILED

97 89 4 NOV 2 6197

No. OFFICE Of BHS OLEAK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

BARRY TRUPIN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SECOND CIRCUIT

JUDD BURSTEIN

Counsel of Record

BURSTEIN & FAss LLP

99 Park Avenue

New York, New York 10016

(212) 681-0606

On the Petition

JUDD BURSTEIN* Aitorneys for Petitioner

MARC FERNICH Barry Trupin

*Counsel of Record

Appendix A

Court of Appeals Decision

117 F.3d 678 (2d Cir. 1997)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 524, 713

(Argued: November 7, 1996 Decided: June 27, 1997)

Docket Nos. 96-125. 96-1307

UNITED STATES OF AMERICA,

Appellee-Cross-Appellant,

vi

BARRY TRUPIN,

Defendant-Appellant-Cross-Appellee.

Before

LUMBARD, OAKES and PARKER, Circuit Judges.

Defendant was convicted in the United States District

Court for the Southern District of New York, Peter K. Leisure,

J., of possessing stolen painting. He appealed, and government

cross-appealed. The Court of Appeals, Oakes, Senior Circuit

Judge, held that: (1) statute prohibiting possession of stolen

goods that have crossed state or United States boundary does not

violate commerce clause; (2) prosecution was not barred by ex

post facto clause; and (3) district court could determine base

offense level for possession of stolen goods based on fair market

value of painting in 1978, when purchased.

Affirmed.

Lumbard, Circuit Judge, filed opinion concurring in part

and dissenting in part.

This appeal and cross-appeal involve the conviction of

Barry Trupin in the United States District Court for the Southern

District of New York, Peter K. Leisure, Judge. for a violation of

one count of 18 U.S.C. § 2315, charging possession of a stolen

Mare Chagall painting. On April 11, 1996, Trupin was

sentenced to a term of five months’ imprisonment, followed by

two years’ supervised release with a special condition of five

months’ house arrest. Trupin’s appeal of the district court’s

decision, United States v. Trupin, 1996 WL 50237 (S.D.N.Y.

Feb.8, 1996), brings three primary assertions of error: first, he

asserts that § 2315 is unconstitutional under the principles of

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131

L.Ed.2d 626 (1995), in that the statute exceeds Congress's

authority under the Commerce Clause; second, he argues that §

2315 as applied here is an unconstitutional ex post facto law

which implicates his Fifth Amendment right to be free from

compulsory self-incrimination; and third, he asserts that the trial

court’s jury instructions contained two key errors. The

Government cross-appeals on two issues: (1) that the district

court erred by treating the Sentencing Guidelines loss

calculation as the value of the painting in 1978 when Trupin

illegally purchased it as opposed to its value in 1990 when he

sold it; and (2) that the court erred by granting a downward

departure based on Trupin’s assertedly "aberrant" conduct. We

have jurisdiction over Trupin’s appeal pursuant to 28 U.S.C. §

1294, and over the Government's cross-appeal under 18 U.S.C. §

3742(b).

UJ

We affirm on both the appeal and cross-appeal.

Judd Burstein, New York, NY (Sabrina P.

Shroff, Burstein & Fass, L.L.P., of

counsel), for Defendant-Appellant-Cross-

Appellee.

Lewis J. Liman, Assistant United States

Attorney, New York, NY (Mary Jo

White, United States Attorney, Guy

Petrillo, Assistant United States Attorney,

of counsel), for Appellee-Cross-

Appellant.

OAKES, Senior Circuit Judge:

FACTS

"Le Petit Concert," the Chagall painting in question, was

purchased in April 1969 by a Baltimore, Maryland, family.

About a year later it and some twenty- two other paintings were

stolen.' In the 1970s, Barry Trupin was an exceedingly

successful businessman involved in structuring and selling tax-

leveraged or tax-saving investments, as a result of which he was

making millions and acquiring the accoutrements thereof: real

estate, a yacht, artworks, and other valuable items for himself

and his companies, not limited to a suit of armor worn by Henry

II and antique Judaica. Trupin’s then spouse introduced Trupin

to Raoul Zuniga, an artist apparently of some repute, but limited

means. Trupin commissioned Zuniga to create a number of

sculptures, to assist in the decoration of Trupin’s yacht, and to

There is no suggestion that Trupin played any role in this

theft.

act as Trupin’s advisor with respect to art acquisitions. Trupin

rewarded Zuniga generously for his work: not only was he paid a

healthy fee for his sculptures and wage for his work in

decorating the yacht, he was further commissioned to carve an

ornate set of doors for the salon of the yacht. At one point in the

1980s, Trupin even gave Zuniga a new Mercedes convertible.

In the late 1970s, Zuniga obtained "Le Petit Concert,"

along with some other paintings, from one Angelo Jack Inglesi

("Jack"), and attempted to sell seven of the paintings to Trupin

sometime in 1978. Trupin purchased the Chagall for $100,000--

which, incidentally, represented the full market value at the time

of the sale. We take it that Trupin’s brief correctly states the fact

when it says that, at that point in Trupin’s life, money was no

object, and he simply did not refuse to purchase an item he

wanted because of its cost. Thus, in context, the obtaining of the

Chagall for $100,000 was a fairly minor transaction for Trupin.

We know at least that Zuniga was aware that the painting

was stolen, and we find that the record strongly supports the

jury’s finding that Trupin was also. Zuniga’s testimony was

that, when he sold the painting and on at least one other

occasion, he explicitly told Trupin that the painting was stolen.

He also testified that Trupin bought the painting directly from

"Jack" at the Waldorf-Astoria, and it was delivered shortly

thereafter near Kennedy Airport and taken to the yacht.

The trial judge found Zuniga to be utterly incredible--a

down-and-out artist put on retainer and given a car, who repaid

Trupin with a stolen painting. Zuniga, it was shown, also had

difficulties not only with another art purchaser but with the FBI

regarding a _ stolen Picasso. Furthermore, numerous

contradictions permeated his testimony, including the fact that

he specifically denied in sworn testimony in 1989 having seen

the Chagall hanging in the Trupin company yacht, though

subsequently admitted having sold the Chagall to Trupin. Were

there no evidence other than Zuniga’s testimony, the trial judge

surely would not have let Trupin’s conviction stand.

The Government, however, introduced other damning

evidence at trial showing that Trupin knew the painting was

stolen. Tellingly, Trupin kept lengthy and detailed insurance

schedules, bills of sale, and appraisals with the many other

works of art that he had purchased, yet never insured or

maintained any such documents regarding the Chagall. In 1982,

an inventory was recorded of all of Trupin’s personal property,

yet the employee who was directed to photograph and prepare

descriptions of the other pieces of art for a catalog was not told

about the Chagall (which had by that time been recovered by

Trupin from his wife in Connecticut and taken back to the yacht

in New York). The Trupin employee responsible for insurance

matters knew that the Chagall existed, but when he asked Trupin

whether it should be insured, Trupin said, "No," then glared at

him and said, "You know." In addition, while Trupin displayed

his legitimately-purchased works of art in his company

brochures and at reputable museums, the Chagall was installed

behind closed doors on the yacht, and not shown to anyone

except at a social gathering of lawyers and accountants who

worked for him. Moreover, when Trupin sold other possessions,

he did so for maximum profit: he contacted specialists in

connection with the sale of his auto collection or his boat, and

contacted Sotheby’s or Christy’s in connection with the sale of

his other art. Yet, when he determined to sell the Chagall in

1990 (at which time, according to the expert evidence, he could

have sold it for over $1 million), he obtained no expert advice

whatsoever. Instead, he asked a business acquaintance, who he

knew was a convicted felon, to sell the painting privately for

$350,000 and to a buyer who would not ask for the seller's

identity or the painting’s provenance.

Based on these indicia of guilty mens rea, we feel

comfortable that the jury correctly determined that Trupin was

well aware of the painting’s shady past. Ironically, however,

when Trupin attempted to sell the painting under the above-

6

mentioned "no-questions-asked" terms through his felonious

business acquaintance, the dealer/buyer learned that the painting

was stolen and notified the FBI.

I]

DISCUSSION

A. Trupin’s Appeal

Title 18, U.S.C. § 2315 provides that "[w]hoever

receives, possesses, conceals, stores, barters, sells, or disposes of

any goods ... of the value of $5,000 or more ... which have

crossed a State or United States boundary after being stolen,

unlawfully converted, or taken, knowing the same to have been

stolen, unlawfully converted, or taken ..." has committed a

felony. We start by noting that Appellant raises no challenge to

the sufficiency of the evidence establishing that "the Marc

Chagall painting was stolen in or about April 1970 from

Baltimore, Maryland, that in the summer of 1979 it was located

on [Trupin’s}] boat which was docked at the 79th Street boat

basin [in New York City], that, several months later, in the

beginning of 1980 [Trupin] received the painting in Westport,

Connecticut, and that [he] brought it back to New York."

Appellant also raises no challenge to the sufficiency of the

evidence that "Le Petit Concert" was worth more than $5,000

when it was received, that he was told that the painting was

stolen when he received it, and thereafter acted in a manner that

was consistent only with knowledge that it was stolen, and that

he possessed it and sought to dispose of it in March of 1990.

1. United States v. Lopez

Trupin’s first challenge is brought under the principles

enunciated in Lopez. Lopez, it will readily be recalled, held that

the Gun-Free School Zones Act of 1990, 18 U.S.C. §

922(q)(1)(A), which made it a federal offense to possess a

firearm at a place that the possessor knows, or has reasonable

cause to believe, is a school zone, was unconstitutional because

it exceeded Congress's authority to pass legislation under the

Commerce Clause. Lopez, 514 U.S. at 551-65, 115 S.Ct. at

1626-32. We first address Trupin’s argument that within the

strict meaning of Lopez, § 2315 unconstitutionally exceeds

Congress's authority, before turning to his second point that

Congress did not make adequate findings of impact on interstate

commerce when amending the act.

We start our analysis with the proposition long

recognized and recalled in Lopez that there are three "broad"

categories of activity that Congress may regulate under the

Commerce Clause: First, Congress may regulate the use of the

channels of interstate commerce. Second, Congress is

empowered to regulate and protect the instrumentalities of

interstate commerce, or persons or things in_ interstate

commerce, even though the threat may come only from intrastate

activities. Finally, Congress’ commerce authority includes the

power to regulate those activities having a substantial relation to

interstate commerce, 1.e., those activities that substantially affect

interstate commerce.

Lopez, 514 U.S. at 558-59, 115 S.Ct. at 1629-30

(citations omitted); see also Perez v. United States, 402 U.S.

146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971). We

look, then, to see whether § 2315 appropriately falls under the

first, second, or third of these areas, keeping in mind that Lopez

invalidated a statute which analytically fell under the third

category, yet failed to pass muster because its subject matter did

not have a "substantial relation to interstate commerce.”

Trupin’s argument is directed at the portions of § 2315

which prohibit "possession" of property that has "crossed a State

or United States boundary after being stolen....". These two

provisions were added by amendment to § 2315 in 1986. Trupin

acknowledges that the former statute was a constitutional

exercise of Congress’s power to regulate the use of the channels

of interstate commerce (the first of the three categories outlined

in Lopez ). See id,, 402 U.S. at 150, 91 S.Ct. at 1359 (including

former § 2315 as an example of Congress’s exercise of this first

category of power). But Trupin asserts that the addition of

"possession" as a crime, particularly in the light of the change of

the jurisdictional language from "moving as _ interstate

commerce" to "crossed a State boundary," makes the new

provision unconstitutional. He believes that possession of stolen

goods that have crossed state lines cannot be reached as a

regulation of the channels of interstate commerce. He also

asserts that possession alone is not a valid exercise of Congress's

power under the third Lopez category for substantially the same

reason discussed in Lopez.

We disagree. We find the Government’s position

convincing: amended § 2315 does fall within the first of the

three Lopez categories, i.e., it is a regulation of "use of the

channels of interstate commerce," and therefore differs from §

922(q), which fell under the third of those categories. However,

even if we were to accept Trupin’s view that, by adding

"possession" to § 2315 in the 1986 amendment, Congress drew

on its power under the third category enumerated in Lopez, we

would nevertheless find this exercise of power unquestionably

constitutional.

First, we look at the history of § 2315 to assess its

legitimacy as an exercise of Congress’s power to regulate the

channels of interstate commerce. As mentioned above, § 2315

was amended on November 10, 1986, to include "possession" of

stolen goods that have crossed state lines. Prior to the

amendment, the statute did not outlaw "possession" but only

receipt, concealment, storing, bartering, selling or disposing of

stolen property, and also covered only such property which was

"moving as, or which [was] a part of, or which constitute[d]

interstate or foreign commerce...." A close look at the history of

the changes in the jurisdictional language of § 2315 shows that

9

Trupin’s argument, that the "crossed State boundary” language

takes § 2315 out of the purview of the first of the three

permissible categories of regulation, is not warranted.

Although the "moving as_ interstate commerce"

requirement of the original statute was generally broadly

construed, a number of courts intimated that, if an item once

moving was found to have "come to rest," subsequent attempts

to receive, conceal, sell, or dispose of the property would not

violate the statute’s prohibitions. For example, the Fifth Circuit

explained that the original thief might transfer property to

another person in such circumstances that it could be considered

to have left interstate commerce; the court further stated that a

stolen object could remain in the destination state for such a

length of time that there would be an indication that it had left

interstate commerce. United States v. Tobin, 576 F.2d 687, 692-

93 (Sth Cir.1978).’ See also, e.g., Lee v. United States, 363 F.2d

469, 475 (Sth Cir.1966); Corey v. United States, 305 F.2d 232,

236-38 (9th Cir.1962); Pilgrim v. United States, 266 F.2d 486,

488 (Sth Cir.1959). Cf. McElroy v. United States, 455 U.S. 642,

652-54, 102 S.Ct. 1332, 1338-39, 71 L.Ed.2d 522 (1982)

(construing 18 U.S.C. § 2314 in light of commerce clause

decisions before 1919).

To forestall this potentially problematic interpretation,

the 1985 Congress amended a companion statute, 18 U.S.C. §

9313. the Motor Vehicle Theft Law Enforcement Act, to replace

the requirement that a stolen motor vehicle be in interstate

commerce with the requirement that it have crossed a state

2 On the other hand, the Fifth Circuit was careful to point out

that a stolen item might be concealed so that it could "cool off" or

until its price rose, in which case the concealment would be an

integral part of the movement in interstate commerce and the

perpetrator could not escape the reach of the statute. Tobin, 576

F.2d at 693.

10

boundary. On June 4, 1985, Senator Thurmond introduced an

Act amending § 2315 to track the language of this "sister

statute," and called the Act a "package of technical and minor

changes to the Comprehensive Crime Control Act of 1984." 131

Cong. Rec. 14166 (1985). The amendment to § 2315 was

described as "eliminat[ing] the present requirement that the

property still be considered as moving in interstate or foreign

commerce at the time the defendant receives, conceals, or

disposes of it," a requirement which, according to Thurmond,

was “unnecessarily burdensome and ... unrelated to the

blameworthiness of the defendant’s conduct." 131 Cong. Rec.

14184 (1985). Thus, the amendment was intended to

"technically" correct the potential loophole created by the

language "moving in interstate commerce" by changing the

"moving" reference to the "crossing" language. See H.R.Rep.

No. 99-797 (1985), quoted in part in 1986 U.S.C.C.A.N. 6138-

57 ("H.R. 5241... makes technical and minor changes in .

provisions of titles 18 and 28 of the United States Code. All of

the amendments contained in the bill are uncontroversial." Id. at

6139.)

Ironically, however, in the 1986 Congress’s considerable

zeal to make this "technical" correction via enactment of the

Criminal Law and Procedure Technical Amendments Act of

1986, Pub.L. No. 99-646, § 76, 100 Stat. 3618 (Nov. 10, 1986),

it enacted a syntactical horror. The enactment caused a second

paragraph of § 2315 to read "whoever receives, conceals, stores,

barters, sells, or disposes of any falsely made, forged, altered or

counterfeited securities or tax stamps ... which have crossed a

State or United States boundary after being stolen, unlawfully

converted or taken, knowing the same to have been so falsely

made, forged, altered, or counterfeited." This jumbled jargon

was corrected in 1988 by another technical amendment, enacted

as a rider to the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-

690, § 7048, 102 Stat. 4401 (Nov. 18, 1988), which reconverted

the language of the second paragraph to read as before the 1986

amendments.

1]

In the light of this history, we think it improper to

attribute much, if any, significance to the difference between the

language in the second paragraph and the other paragraphs of §

2315, particularly the first, with which we are here concerned.

That the second paragraph was returned to its original language

is meaningless, since grammar, not policy, motivated the

change. We do not agree with Trupin that the change broadened

the scope of § 2315, but think the new language made the

provision more specific. The new law might reach some

conduct that was beyond the scope of the old law, e.g., stolen

goods that have come to rest in their destination state. Yet, it

also might be construed to exclude some conduct that the old

law covered, i.e., wholly intrastate movement of stolen goods

that is nonetheless part of commerce. Because the new "crossed"

language did not greatly expand the scope of the former § 2315,

which is concededly constitutional, but rather clarified exactly

what conduct Congress intended to reach, the change did not

make the new version of the law unconstitutional. With regard

to this statute, therefore, the statutory reference to movement

across state boundaries is indistinguishable, for the purpose of

constitutional analysis, from a reference to movement in

interstate commerce.

Having so held, we do not agree with Trupin that the

amendment adding pure "possession" to the litany of § 2315

offenses takes the statute out of the "use of the channels of

interstate commerce." Cases such as United States v.

Beuckelaere, 91 F.3d 781 (6th Cir.1996) (upholding 18 U.S.C.

922(0), punishing machine gun possession), and United States v.

Rambo, 74 F.3d 948-52 (9th Cir.), cert. denied, --- U.S. ----, 117

S.Ct. 72, 136 L.Ed.2d 32 (1996) (same), have upheld, as first-

category regulation, statutes which prohibit possession alone,

and which, unlike § 2315, contain absolutely no reference to

either crossing of state lines or movement in_ interstate

commerce. See Beuckelaere, 91 F.3d at 783 ("§ 922(0) is ‘a

regulation of the use of the channels of interstate commerce’

because it is ‘an attempt to prohibit the interstate transportation

12

"

of a commodity through the channels of commerce.” " (quoting

Lopez, 514 U.S. at 559, 115 S.Ct. at 1630)). Likewise, and in

conjunction with a statutory element of movement across state

boundaries, possession alone can certainly be sustained as a

legitimate exercise of Congressional power to regulate the "uses

and channels of interstate commerce."

For these reasons, we believe that § 2315, as amended, is

a legitimate exercise of Congress’s power to regulate the

channels of interstate commerce.

We next evaluate how amended § 2315 differs from the

statute evaluated in Lopez even if viewed as a "category three"

exercise of the commerce power. Trupin’s belief is that the

provision of § 2315 which criminalizes possession of stolen

goods that have crossed state lines goes too far in that it reaches

beyond the regulation of interstate commerce to an act that could

easily occur entirely within a single state. A reading of Lopez,

however, shows that § 2315 and § 922(q) are entirely dissimilar

with regard to the connection of their regulated subject matter

with interstate commerce. § 922(q) did not implicate commerce,

or activity of a commercial nature. Justice Rehnquist’s majority

opinion stated that "[s]ection 922(q) is a criminal statute that by

its terms has nothing to do with ‘commerce’ or any sort of

economic enterprise, however broadly one might define those

terms." Lopez, 514 U.S. at 561, 115 S.Ct. at 1630-31. By

conirast, § 2315 does concern commerce in that it seeks to

eradicate the interstate and international traffic in stolen goods

and in doing so to proiect and encourage legitimate trade.

When § 2315 was originally passed, Congress had

evidence that thieves were using interstate commerce to

transport stolen goods and that the possession of goods that had

crossed state lines after having been stolen could not be

effectively prosecuted by local authorities who did not have

access to the original complainant or national subpoena power,

much less a strong interest in prosecuting a local recipient of

13

property stolen in another jurisdiction. See Sending and Receipt

of Stolen Property in Interstate and Foreign Commerce: Hearing

before the Committee on the Judiciary of the House of

Representatives on H.R. 10287, 70th Cong. 6-7, 36, 38, 42 (Apr.

3 and 4, 1928); Jerome Hall, Federal Anti-Theft Legislation, |

Law & Contemp. Probs. 425, 428-34 (1934); cf. Dowling v.

United States, 473 U.S. 207, 218-19, 105 S.Ct. 3127, 3134, 87

L.Ed.2d 152 (1985) (discussing § 2314). Thus, the statute in

both its first paragraph (dealing with receiving, concealing,

storing, bartering, selling, or disposing of goods, wares,

merchandise, securities, or money), and second paragraph

(dealing with falsely made, forged, altered, or counterfeited

securities or tax stamps) used as its commerce-nexus language

the words "moving as, or which are a part of, or which constitute

interstate or foreign commerce...." In short, there is substantial

evidence that Congress was concerned about a serious problem

of illegal, interstate trade when it first enacted § 2315. The 1986

modifications to the statute regarding "possession" are consonant

with these concerns, and thus likewise reflect Congress’s

legitimate power to impact interstate commerce, for the same

reasons mentioned above in our discussion of category-one

regulation.

As the Lopez majority opinion itself recognized,

Congress may reach intrastate acts as part of "an essential part of

a larger regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity were

regulated." Lopez, 514 U.S. at 561, 115 S.Ct. at 1631. This

principle has been applied to uphold criminal statutes. See, e.g.,

Perez, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (upholding

Congress’s power to criminalize even entirely local

manifestations of loan sharking). Amended § 2315 is a similar

law: In seeking to eradicate a problem with an obvious and

substantial interstate component, it reaches acts that in some

instances might occur in a single locale. Lopez does not prevent

this, at least when commerce is clearly implicated.

14

In sum, therefore, although we find Trupin’s Lopez

arguments to be sophisticated and creative, we are yet again led

to agree with the Seventh Circuit's sentiment that "[i]t appears

that United States _v. Lopez has raised many false hopes.

Defendants have used it as a basis for challenges to various

statutes. Almost invariably those challenges fail." United States

v. Bell, 70 F.3d 495, 497 (7th Cir.1995) (citations omitted).’

Numerous statutes have been upheld against post-Lopez

Commerce Clause challenges in this and other courts. For

example, the Government cites 18 U.S.C. § 922(g), dealing with

the interstate or foreign shipment or transportation of firearms and

ammunition. This statute has been upheld against Lopez

challenges as requiring a showing by the Government that the

weapon at issue was shipped or transported in interstate or foreign

commerce, or was possessed in or affected commerce, and thus

had a "legitimate nexus with interstate commerce." E.g., United

States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995). Another

such analog statute is 18 U.S.C. § 2251(a), the Protection of

Children Against Sexual Exploitation Act of 1977, which

prohibits the use of a minor to produce visual depictions of sexual

activity if those depictions are transported in interstate or foreign

commerce. This statute was distinguished from the one in Lopez

as requiring "an identifiable interstate nexus" in United States v.

Sirois, 87 F.3d 34, 40 (2d Cir.), cert. denied, --- U.S. ----, 117

S.Ct. 328, 136 L.Ed.2d 241 (1996). Finally, 18 U.S.C. § 2119,

prohibiting the taking of a motor vehicle with the intent to cause

death or serious bodily harm by force, violence, or intimidation

when the vehicle has been transported, shipped, or received in

interstate or foreign commerce, was upheld in United States v.

Bishop, 66 F.3d 569, 585-88 (3d Cir.) (relying on United States vy.

Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), and

Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52

L.Ed.2d 582 (1977), for the proposition that past transportation

provided a sufficient nexus with interstate commerce), cert.

denied, --- U.S. ----, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995).

(continued...)

15

(...continued)

Because Trupin’s argument is directed toward the lack of

a § 2315 reference to interstate commerce, we focus here upon

those which do not contain such a reference. An overwhelming

number of courts have upheld such statutes against Lopez

challenges. (We also note that several such statutes, e.g., 18

U.S.C. § 922(0), outlaw simple possession.) Furthermore, several

have been upheld despite being held not to be third- category

cases. See, e.g., Beuckelaere, 91 F.3d 781 (upholding 18 U.S.C.

§ 922(0), which prohibits possession of machine guns, as a first-

category regulation); Rambo, 74 F.3d at 952 (same); United

States v. Rybar, 103 F.3d 273 (3d Cir.1996) (same, upheld as

third-category regulation); United States v. Kenney, 91 F.3d 884,

885-91 (7th Cir. 1996) (same, upheld as third-category regulation);

United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995)

(same, upheld as second-category regulation); United States v.

Wall, 92 F.3d 1444, 1449-52 (6th Cir. 1996) (upholding 18 U.S.C.

§ 1955, which prohibits illegal gambling operations, as a third-

category regulation), cert. denied, --- U.S. ----, 117 S.Ct. 690, 136

L.Ed.2d 613 (1997); United States v. Michael R., 90 F.3d 340,

344-45 (9th Cir.1996) (upholding 18 U.S.C. § 922(x)(2), which

prohibits knowing and intelligent possession of a handgun by a

juvenile, as a third-category regulation); United States v. Staples,

85 F.3d 461, 462-63 (9th Cir.) (upholding 18 U.S.C. § 924(c)(1),

which prohibits use or carrying of a firearm during a crime of

violence or drug trafficking, using third-category regulation

analysis), cert. denied, --- U.S. ----, 117 S.Ct. 318, 136 L.Ed.2d

233 (1996); United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th

Cir.1995) (upholding 21 U.S.C. § 841(a)(1), the Comprehensive

Drug Abuse Prevention and Control Act of 1970, as a third-

category regulation); United States v. Parker, 108 F.3d 28 (3rd

Cir.1997) (upholding 18 U.S.C. § 228 (1994), the Child Support

Enforcement Act (CRSA), as a third- category regulation): United

States v. Bongiorno, 106 F.3d 1027, 1031 (1st Cir.1997) (same,

upheld as a second-category regulation); United States v. Sage.

(continued...)

16

(...continued)

92 F.3d 101, 106-07 (2d Cir.1996) (same, upheld as a second-

category regulation), cert. denied, --- U.S. ----, 117 S.Ct. 784, 136

L.Ed.2d 727 (1997); Terry v. Reno, 101 F.3d 1412, 1415-18

(D.C.Cir.1996) (upholding 18 U.S.C. § 248, the Freedom of

Access to Clinic Entrances Act (FACE), as a third-category

regulation); United States v. Dinwiddie, 76 F.3d 913, 919 (8th

Cir.) (same, upholding as either second or third-category

regulation), cert. denied, --- U.S. ----, 117 S.Ct. 613, 136 L.Ed.2d

538 (1996); United States v. Wilson, 73 F.3d 675, 679-88 (1995)

(same, upholding as third-category regulation and declining to

address applicability of second category), cert. denied, --- U.S. ----

, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996); Cheffer v. Reno, 55 F.3d

1517, 1519-21 (11th Cir.1995) (same, upholding implicitly as

third- category regulation); American Life League, Inc. v. Reno,

47 F.3d 642, 647 (4th Cir.) (same, upheld without discussion of

categories), cert. denied, --- U.S. ----, 116 S.Ct. 55, 133 L.Ed.2d

19 (1995). Several of these statutes, e.g., the CSRA, include

language similar to that in § 2315 regarding the crossing of state

lines. The broad range of these holdings and their rationales

further bolster our belief that the "crossing of state lines"

amendment in no way moved § 2315 out from the first category

of areas which Congress may permissibly regulate, and that even

if it were a third-category case, it would be within Congress’s

dominion. Finally, we call attention to Judge Ross’s fine opinion

in United States v. Friedman, No. 95-CR-192(S-3)(ARR), 96-CR-

182(ARR), 1996 WL 612456 (E.D.N.Y. Aug.13, 1996), which

reached substantially the same result as we do here with regard to

§ 2315 itself, and held that the statute could be upheld under any

of the three categories of permissible Congressional regulation.

Id. at *3.

17

?. Ex Post Facto/Fifth Amendment

We reject Trupin’s argument that § 2315 as amended in

1986 was applied to him in violation of the ex post facto clause

and the Fifth Amendment. Rather, as the district court found,

Trupin was prosecuted for the portion of his continuing offense

that occurred after the date of the amendment of the statute. His

prosecution is hence not barred by the ex post facto clause. In

Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568

(1925), the Supreme Court held that the Georgia prohibition

statutes making it illegal to "control or possess" liquor could

properly be applied to a defendant who had lawfully acquired the

liquor before the effective date of the statute, and continued the

possession for several years after the change in the law. The

court reasoned that "[t]he penalty [the statute] imposes is for

continuing to possess the liquor after the enactment of the law."

Id. at 193, 45 S.Ct. at 265 (citing Chicago & Alton R.R. Co. v.

Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204 (1915))

(statutes imposing criminal penalties for continuing conduct will

be construed to allow a reasonable grace period for compliance

so as to avoid ex post facto concerns). Similarly, here, the

offense charged was for continuing to possess the stolen painting

after the 1986 amendment. Much more recently, we held in

United States v. Harris, 79 F.3d 223, 230 (2d Cir.), cert. denied,

--- U.S. ----, 117 S.Ct. 142, 136 L.Ed.2d 89 (1996), that the ex

post facto clause was not violated by the continuing financial

crimes enterprise statute, 18 U.S.C. § 225. Judge Miner's

opinion in Harris reached this holding, in reliance upon ample

Second Circuit precedent, because the jury must have considered

post-enactment conduct in reaching its verdict. See id. at 229

(citing United States v. Torres, 901 F.2d 205, 226 (2d Cir.1990);

United States v. Duncan, 42 F.3d 97, 104 (2d Cir.1994)). See

also United States v. Borelli, 336 F.2d 376, 386 n. 5 (2d

Cir.1964) (Friendly, J.).

As we have said, the relevant conduct in this case was

not the receipt of the painting which Trupin took from Westport,

18

Connecticut, to New York in 1980, but the continued possession

of it after the 1986 amendment. Trupin could have avoided

conviction for possession by ceasing his possession within a

reasonable time after the 1986 amendment. See Chicago &

Alton, 238 U.S. at 74, 35 S.Ct. at 680-81; see also 1 Wayne R.

LaFave & Austin W. Scott, Jr., Substantive Criminal Law, §

2.4(b), at 142 & n.53 (1986).* He could have returned the

painting to its owners anonymously or through his attorney, or

delivered it to a legitimate custodian of lost and stolen art. His

failure to take any such remedial steps after the change in the

federal law subjects him to conviction without implicating the

ex post facto clause. See United States v. Alkins, 925 F.2d 541,

549 (2d Cir.1991) (amendment to mail fraud statute was not

applied to defendants in violation of ex post facto clause where

defendants could have taken steps to prevent the final element of

the crime from occurring after the effective date of the statute).

Trupin responds that returning the painting after the 1986

amendment would attest to his illegal possession in the interim,

thereby implicating his Fifth Amendment privilege against self-

incrimination. Trupin, however, is not in the same situation as

that faced by the defendants in United States v. Kuh, 541 F.2d

672 (7th Cir.1976), or United States v. King, 402 F.2d 694 (9th

Cir.1968). In those cases, the relevant statute contained a

provision criminalizing the failure to inform authorities of

criminal conduct. The Seventh and Ninth Circuits both held that

such a provision violated those defendants’ Fifth Amendment

rights by forcing them to report information which could

incriminate them. But Trupin had options, as just listed above,

which would have enabled him to cease his possession of stolen

goods within a reasonable time after such possession was

criminalized without subjecting him to further criminal

proceedings. The Kuh and King defendants had no such options

' Because Trupin took no step to comply with the amended

federal law, we need not decide what length of time would be

reasonable as a grace period to permit compliance.

19

available to avoid self-incrimination. Trupin’s conviction thus

violates neither the Fifth Amendment nor the ex post facto

clause.

3. Jury Instructions

Trupin also argues that the district court’s jury instructions were

erroneous in two respects: First, the court should have required

the jury to find that Trupin’s interstate transportation of the

painting had a commercial impact on interstate commerce,

second. the instructions erroneously stated that the jury could

find him guilty if he either possessed, stored or concealed the

painting, or sold, bartered or disposed of it. Objection to the

‘nstruction as to commercial impact or commercial purpose was

not preserved by trial counsel either at trial or in post-trial

motions and, indeed, was a charge rejected in Sirois, 87 F.3d at

39-40.

The second objection is more complicated. The court

initially proposed an instruction, taken from the standard jury

‘nstructions contained in L. Sand, J. Siffert, W. Laughlin, and S.

Reiss. Modern Federal Jury Instructions (1995), which included

reference to the receipt of stolen goods. Trupin's counsel

objected to that instruction. Following an out-of-court

discussion between Trupin's counsel and the prosecutor,

Trupin’s counsel did not object to a revised instruction which

deleted the verb "received." The resuliing instruction read as

follows: "[Y]ou may not find the defendant guilty unless you

agree, unanimously, that the defendant possessed, concealed or

stored the property or that the defendant bartered, sold, or

disposed of the property. It is not enough that some of you find

only that the defendant possessed or stored the property and the

rest of you find only that the defendant disposed of or sold the

property." Arguably, therefore, Trupin has waived his right to

appeal that instruction. Later. however, Trupin raised the

contention that the court’s instruction violated his right to a

unanimous verdict.

20

While we believe that Trupin waived his appeal on this

point, we need not decide whether his apparent acquiescence to

the instruction as given constituted waiver, because we find no

error in the instruction as given. We have, time and again, held

that a general charge regarding unanimity is ordinarily sufficient

to protect the defendant's right to a unanimous verdict. United

States v. Harris, 8 F.3d 943, 945 (2d Cir.1993); United States v.

Natelli, 527 F.2d 311, 324-25 (2d Cir.1975). Compare United

States _v. Gipson, 553 F.2d 453, 458-59 (Sth Cir.1977)

(describing § 2313 as referring to six acts in two distinct

conceptual groupings--receiving, concealing and storing on the

one hand--bartering, selling and disposing on the other--which

could permit the jury to find the actus reus element unanimously

despite difference in belief as to which intra group act the

defendants committed, but reversing conviction where trial

judge gave instruction that permitted jury to find actus reus

element unanimously despite difference in belief that inter group

acts occurred), cited approvingly in United States v. Peterson,

768 F.2d 64, 67 n. 2 (2d Cir.1985).

Thus, we affirm the defendant’s conviction.

B. The Government’s Cross-Appeal

1. Sentencing Guidelines--Loss Value Calculation

On cross-appeal, the Government first asks us to vacate

the judgment and remand for resentencing on the basis that the

Guidelines "loss" attributable to Trupin cannot be based on the

fair market value of the painting in 1978 when Trupin purchased

it, but must be based on its fair market value in 1990, the year he

last possessed and attempted to sell the painting. The

Government argues (and it is undisputed) that at the time Trupin

gave the painting to his representative to sell, its fair market

value was between $1 and $1.5 million, much appreciated from

the $100,000 which he had paid for it.

21

oe

In deciding this point, the district court relied upon the

November 1, 1993, amendment to Application Note 2 to § 2B1.1

of the Sentencing Guidelines.* This amendment provided that

"{l]oss does not include the interest that could have been earned

had the funds not been stolen." U.S. Sentencing Guidelines

Manual [hereinafter U.S.S.G.] § 2B1.1, Application Note 2

(1993). Evidently, the district court analogized the increase in

the value of the painting to such interest. This analogy has

found some support in United States v. Arjoon, 964 F.2d 167,

172 (2d Cir.1992) (defining, in the context of not taking into

account property returned by the defendant to the victim

voluntarily or before the theft was discovered, "loss" to mean

"not the ultimate harm suffered by the victim, but ... rather the

value of what was taken." (citing United States v. Brach, 942

F.2d 141. 143 (2d Cir.1991). On the other hand, the Government

points to cases such as United States v. Henderson, 19 F.3d 917,

928 (Sth Cir.1994), where the court found "that this commentary

sweeps too broadly," and that "[iJnterest should be included if,

as here, the victim had a reasonable expectation of receiving

interest from the transaction." (citation omitted).

Unfortunately, the Sentencing Commission has not

explicated this amendment to § 2B1.1. See U.S.S.G. Appendix

C. amendment no. 482 at 318 (1993). We think that in the

absence of such guidance, a district court could properly go

either way on this question. The 1989 Manual Application Note

3 states that the amount of loss "need not be determined with

precision, and may be inferred from any reasonably reliable

information available, including the scope of the operation."

U.S.S.G. § 2B1.1, n.3 (1989). See United States v. Wilson, 900

F.2d 1350, 1356 (9th Cir.1990) ("where goods have no readily

ascertainable market value, any reasonable method may be

§ Certainly the court’s decision to rely upon the1993

Application Note to interpret the 1989 Guidelines is reasonable

given that the later version does not contradict the earlier, but,

rather, sheds light on the policy of the Sentencing Commission.

ho

to

employed to ascribe an equivalent monetary value to the items."

(internal citations and quotations omitted)). We are required to

give "due deference to the district court’s application of the

guidelines to the facts," 18 U.S.C. § 3742(e), and will not

overturn the court’s ruling unless there has been an abuse of

discretion. United States v. Parker, 903 F.2d 91, 103 (2d

Cir.1990). Though the appreciation in a painting’s base value is

not necessarily the same as interest, the concepts are similar. In

this case, where Trupin did not attempt to sell the painting at its

full market value, we will not second-guess the district court’s

decision to value the painting at the lower amount, though we do

not hold that, as a matter of law, appreciation in value can not be

considered when calculating loss.

2. Sentencing Guidelines--" Aberrant Conduct"

The Government also argues on cross-appeal that Trupin

should not have been given a downward departure of five levels

on the basis that his conduct was "aberrant." The district court

made clear that it would only consider applying this downward

departure as an alternative to the $100,000 loss calculation.

Because we agree with the court’s rationale relating to the

amount of loss, we need not address the aberrant conduct

departure issue.

We thus affirm the cross-appeal.

CONCLUSION

Judgment affirmed.

LUMBARD, Circuit Judge, concurring in part and

dissenting in part:

[ concur in the majority’s affirmance of Trupin’s

conviction, but write separately because I view the application of

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131

23

L.Ed.2d 626 (1995), to this case somewhat differently than does

the majority, and because I dissent from the affirmance of

Trupin’s sentence, which fails to establish adequate principles

for sentencing possession offenses. 1 would remand for

resentencing.

The statutory provision at issue here--18 U.S.C. § 2315's

prohibition of possession of certain stolen property--is a

constitutional exercise of Congress’s commerce power. Under

Lopez Congress’s commerce clause power extends to three

categories of activity: First, Congress may regulate the use of the

channels of interstate commerce. Second, Congress is

empowered to regulate and protect the instrumentalities of

interstate commerce, or persons or things in_ interstate

commerce, even though the threat may come only from intrastate

activities. Finally, Congress’ commerce authority includes the

power to regulate those activities having a substantial relation to

interstate commerce, i.e., those activities that substantially affect

interstate commerce.

Id. at 558-59, 115 S.Ct. at 1629-30 (citations omitted).

Two types of regulation fall within Lopez’s third category: first,

"regulations of activities that arise out of or are connected with a

commercial transaction, which viewed in the aggregate,

substantially affects interstate commerce," id. at 561, 115 S.Ct.

at 1631. and second, those regulations containing a jurisdictional

element "which would ensure, through case-by-case inquiry, that

the [activity] in question affects interstate commerce." id.

Section 2315's possession provision can be upheld under

Lopez's third category as a regulation of an activity that

substantially affects interstate commerce. Although possession

itself is not a commercial activity, § 2315 as a whole clearly is

directed toward regulating interstate commerce in certain stolen

property by prohibiting transactions in such property. The

statute's possession provision aids that regulatory scheme by

criminalizing the demand side of the market in stolen goods, and

24

thus Congress rationally could conclude that the provision is "an

essential part of a larger regulation of economic activity, in

which the regulatory scheme could be undercut unless the

intrastate activity were regulated." Lopez, 514 U.S. at 561, 115

S.Ct. at 1631.

For the same reason, however, § 2315's possession

provision cannot also be upheld as a first-category regulation of

the channels of interstate commerce. The citations in Lopez

demonstrating that “Congress may regulate the use of the

channels of interstate commerce," 514 U.S. at 549, 115 S.Ct. at

1629, each deal with the actual transportation of people or items

in interstate commerce. See Heart of Atlanta Motel. Inc. v.

United States, 379 U.S. 241, 256, 85 S.Ct. 348, 357, 13 L.Ed.2d

258 (1964) ("The transportation of passengers in interstate

commerce, it has long been settled, is within the regulatory

power of Congress, under the commerce clause of the

Constitution") (quoting Caminetti_ v. United States, 242 U.S.

470, 491, 37 S.Ct. 192, 196- 97, 61 L.Ed. 442 (1917)); United

States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed.

609 (1941) ("Congress ... is free to exclude from the commerce

articles whose use in the states for which they are destined it

may conceive to be injurious"). "Thus, it seems clear that the

first category of Commerce Clause authority outlined in Lopez

concerns Congress's power to regulate, for economic or social

purposes, passage in interstate commerce of either people or

goods." United States v. Rybar, 103 F.3d 273, 288-89 (3d

Cir.1996) (Alito, J., dissenting), petition for cert. filed, 65

U.S.L.W. 3755 (U.S. April 30, 1997) (No. 96-1738).

Possession, as opposed to transportation, does not use the

channels of interstate commerce, and therefore does not fall

within the first Lopez category. See United States v. Kenney, 91

F.3d 884, 889 (7th Cir.1996) ("[A]lthough it may be true that

Congress must regulate ... even mere possessions ... in aid of its

prerogative of preventing the misuse of the channels of interstate

commerce, the regulation still regulates much more than the

25

a

channels of commerce. This rationale is therefore an aspect of

Congress's broader power to regulate things ‘affecting’ interstate

commerce."). Consequently, a majority of circuits that have

considered Lopez challenges to other possession offenses have

upheld the respective statutes only under Lopez's third category.

See United States v. Knutson, 113 F.3d 27, 31 (Sth Cir.1997)

(addressing 18 U.S.C. § 922(0)); Rybar, 103 F.3d 273, 283 ("Wwe

hold, that the authority of Congress to enact § 922(0) under the

Commerce Clause can be sustained under the third category

identified” in Lopez ); Kenney, 91 F.3d 884 (§ 922(0)); United

States v. Michael R., 90 F.3d 340 (9th Cir.1996) (18 U.S.C. §

922(x)(2))."° Like those statutes, §.2315 by its terms does not

regulate the passage of goods. Rather, by prohibiting

transactions in, and even possession of, property once it has been

in the channels of interstate commerce, the statute inhibits--i.e.,

affects--interstate commerce in such property without directly

regulating the property's passage in the channels of commerce.

As a result, it too can be upheld only under Lopez 's third

category.

Although I agree for the most part with the district

court's sentencing approach, I dissent from the majority's

affirmance of Trupin's sentence, which fails to set forth

principles under which Trupin should have been sentenced. The

commentary to the applicable sentencing guideline, § 2B1.1,

States that

[l]oss means the value of the property taken, damaged,

or destroyed.... Loss does not include the interest that

6 As there seems no relevant basis for distinguishing the

possession provision in § 922(x)(2) from that in § 922(0), Michael

R. implicitly conflicts with United States v. Rambo, 74 F.3d 948

(9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 72, 136

L.Ed.2d 32 (1996), cited by the majority, which upheld § 922(0)

under Lopez's first category.

26

could have been earned had the funds not been stolen.

In stolen property offenses (receiving, transporting.

transferring, transmitting, or possessing stolen property ).

the loss is the value of the stolen property determined as

in a theft offense.

U.S.S.G. § 2B1.1, comment. (n. 2). Underlying this

commentary is a general policy favoring loss valuation as of the

time the defendant first took the property. Thus, in typical theft

and fraud cases, we have routinely read this application note.

and the analogous commentary to § 2F 1.1, see U.S.S.G. § 2F 1.1,

comment. (n. 7), to require calculation of loss based on the value

of the property taken, without regard to subsequent disposal or

return of the stolen property or funds. See United States \

Arjoon, 964 F.2d 167, 172 (2d Cir.1992) (" ‘Loss’ is, therefore.

not the ultimate harm suffered by the victim, but is rather the

value of what was taken."); United States v. Brach, 942 F.2d 141

(2d Cir.1991).

The commentary's instruction that loss not include

interest that could have been earned on stolen funds, relied upon

by the district court here, furthers this policy by excluding from

the loss calculation amounts that were speculative and

prospective when the defendant first took or received the

property or funds. Thus, those circuits that have interpreted the

interest provision as allowing promised rates of return to be

included in the loss figure have done so precisely because the

commentary "allows for a distinction to be made between the

types of interest based on the level of certainty with which the

interest was due... Inherent in thie guideline’s interest

exclusion] is a degree of speculation....". United States v.

Allender, 62 F.3d 909, 917 (7th Cir.1995), cert. denied, --- U.S.

----, 116 S.Ct. 781, 133 L.Ed.2d 732 (1996); see United States

v. Goodchild, 25 F.3d 55, 65-66 (ist Cir.1994) (including

contractually-specified interest in loss figure); United States \

Henderson, 19 F.3d 917, 928 (Sth Cir.1994) (same); United

27

States v. Lowder, 5 F.3d 467, 471 (10th Cir.1993) (same); cf.

United States _v._ Hoyle, 33 F.3d 415, 419 (4th Cir.1994)

(reversing inclusion in loss figure of interest which represented

only time-value of stolen funds).

In light of this policy of excluding loss which was

speculative when the defendant took the property, the most

sensible reading of the commentary’s directive that loss in

means, not the value of the property when the defendant's

possession of it ceased, but the "value of the property taken"--

.¢., at the time the defendant took it. Subsequent appreciation in

the property's value should not be included because, like the

interest excluded from the Guidelines’s definition of loss, it is

speculative. Indeed, to read the guidelines and commentary as

requiring that loss be valued as of the time possession

terminated wouid measure loss by the ultimate harm to the

victim, the precise scheme that we have rejected in Arjoon and

other cases.

The government's argument to the contrary errs both as

a matter of interpretation and policy. The government relies

largely on the relevant conduct principles of the Guidelines,

under which a defendant is responsible for "all harm that

resulted from the acts and omissions," U.S.S.G. § 1B1.3(a)(3)

(emphasis added), that occurred during the offense of

conviction. But this general definition of relevant conduct

factors is qualified by the commentary to § 2B1.1, which, as

explained above, directs that loss be measured as of the time the

stolen property was taken. See Stinson v. United States, 508

U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993)

(“commentary in the Guidelines Manual that interprets or

explains a guideline is authoritative unless it ... is inconsistent

with, or a plainly erroneous reading of, that guideline.")

Moreover, Guidelines § 1B1.3(a)(3) does not even support the

government's argument. The general prescription that "all harm"

resulting from the offense be included dictates that property in a

28

possession offense be valued, not so much as of the date of the

termination of the offense, but at its highest value during the

course of the offense. Thus, had the value of the Chagall risen

even higher between 1978 and 1990 before settling at its 1990

value, reliance on § 1B1.3(a)(3) would support a loss valuation

at the highest figure, which, no less than the value of the

painting in 1990, would be "harm that resulted from the acts and

omissions" of Defendant. The government does not urge that

loss be determined by reference to the property’s highest value

during the course of the offense. But its logic nonetheless

compels this result rather than valuation of the painting as of the

termination of Trupin’s offense, and thus compels rejection of

the government's argument.

Under ordinary circumstances, therefore, the loss from

Trupin’s offense would be measured as of 1986, when the

offense for which he was convicted began. Given that Trupin

actually came into possession of the painting in 1978, it would

be within the district court’s discretion under the Sentencing

Guidelines’ relevant conduct provisions to choose the 1978

figure. See U.S.S.G. § 1B1.3 (stating relevant conduct

principles). But the record does not reflect that the district court

contemplated the possibility of using a figure from 1986 and

consciously chose instead to consider the 1978 figure. As a

result, barring reliance on the district court’s alternative basis for

arriving at Trupin’s adjusted offense level--a downward

departure which need not be addressed in light of the majority’s

disposition of the sentence--l would remand the case for

resentencing in light of the foregoing principles.

99

APPENDIX B

UNITED STATES of America,

v.

Barry TRUPIN, Defendant.

No. 95 Cr. 450.

United States District Court, S.D. New York.

Feb. 8, 1996

Mary Jo White, United States Attorney for the Southern

District of New York, New York City (Lewis J. Liman,

Esq., of counsel), for U. S.

Judd Burstein, P.C., New York City (Judd Burstein, of

counsel), for Defendant.

OPINION AND ORDER

LEISURE, District Judge:

Before the Court is defendant's motion for a judgment of

acquittal or, in the alternative, for a new trial. Defendant argues

(i) that the statute under which he was prosecuted, 28 U.S.C. §

2315, is unconstitutional as beyond the scope of Congress's

enumerated Article I, Section 8 powers; (11) that the statute is an

ex post facto law as applied to his activities; and (iii) that the

Court's instructions to the jury erroneously grouped the various

alternative acts specified in the statute, thus depriving the

30

defendant of his nght to a unanimous verdict. For the reasons

stated below, the motion is denied.

BACKGROUND

Defendant was convicted of violating 28 U.S.C. § 2315,

which states in pertinent part, Whoever receives, possesses,

conceals, stores, barters, sells, or disposes of any goods, wares,

or merchandise, securities, or money of the value of $5,000 or

more, ... which have crossed a State or United States boundary

after being stolen, unlawfully converted, or taken, knowing the

same to have been stolen, unlawfully converted, or taken ....

Shall be fined under this title or imprisoned not more than ten

years, or both.

Viewing the evidence in the light most favorable to the

Government, see, e.g., United States v. Aulicino, 44 F.3d 1102,

1105 (2d Cir. 1995), the facts are as follows: In April 1970, a

Chagall painting was stolen from the Baltimore, Maryland

apartment of Leslie and Naomi Legum. Eight years later, one

Angelo Jack Inglese approached an artist employee of defendant,

Raul Zuniga, and inquired whether defendant would be

interested in purchasing the Chagall painting. Ultimately, at a

meeting with Inglese at the Waldorf Astoria Towers in

approximately 1978, defendant agreed to purchase the stolen

Chagall painting for $100,000.

Zuniga picked up the painting from Inglese on a highway

close to Kennedy Airport, and installed it behind doors in the

parlor of defendant's yacht. Thereafter, the painting was removed

to the Westport, Connecticut home of defendant's wife. In March

of 1980, after defendant's wife commenced a divorce

proceeding, defendant brought the Chagall painting back from

Connecticut to New York where he held it for ten years.

In 1990, defendant asked a business associate, Irving

Ayash, to sell the painting privately for $300,000, provided the

buyer did not ask to know who the seller was, did not ask for any

papers, and did not ask for a bill of sale. At a meeting in early

March 1990, Ayash offered the Chagall painting to a self-

described private art dealer, Joseph Mirisola, who was interested

in purchasing the painting on behalf of a client. Ayash and

Mirisola reached agreement that Mirisola's client was going to

buy the painting, that the owner was going to receive $350,000,

and that Ayash and his associate would each be paid $100,000 in

commissions.

Mirisola learned from the International Foundation for

Art Research that the painting was stolen and helped set up a

sting operation with the Federal Bureau of Investigation.

Ultimately, defendant was arrested and this prosecution ensued.

DISCUSSION

I. Constitutionality of 18 U.S.C. § 2315

Relying on the Supreme Court's recent case, United

States v. Lopez, 115 S. Ct. 1624 (1995), defendant argues that

section 2315 is unconstitutional as outside Congress's

enumerated powers, specifically arguing that the statute does not

fall within Congress's power "To regulate Commerce with

foreign Nations, and among the several States, and with the

Indian Tribes." U.S. Const. art. I, § 8, cl. 3. In Lopez, which

involved a challenge to a federal statute making it a crime

knowingly to possess a firearm within a school zone, the Court

stated,

[W]e have identified three broad categories of activity

that Congress may regulate under its commerce power. First,

Congress may regulate the use of the channels of interstate

commerce. Second, Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, or persons

or things in interstate commerce, even though the threat may

come only from intrastate activities. Finally Congress’

commerce authority includes the power to regulate those

activities having a substantial relation to interstate commerce,

i.e., those activities that substantially affect interstate commerce.

Lopez, 115 S. Ct. at 1629-30 (citations omitted). Under

the third facet of Congress's power, the Court described two

types of permissible regulations: (1) "[w]here economic activity

substantially affects interstate commerce, legislation regulating

that activity will be sustained," id. at 1630, and (2) where the

statute in issue has an "express jurisdictional element which ...

limit[s] its reach to a discrete set of [non-economic activities]

that additionally have an explicit connection with or effect on

interstate commerce," id. at 1631.

After determining that only the third category arguably

applied, see id. at 1630, the Court concluded that firearm

possession is not an economic enterprise, see id. at 1630-31, that

the statute contained no jurisdictional element that would ensure

that the firearm possession in question affects interstate

commerce, see id. at 1630, and that therefore the statute was

unconstitutional as being beyond Congress's enumerated

powers.

The statute at issue in this case is distinguishable in

many respects. First, it is directed at prohibiting interstate

transportation of stolen goods. Cf. Lopez, 115 S. Ct. at 1630

(finding that Gun-Free School Zones Act not an attempt to

prohibit the interstate transportation of a commodity through the

channels of commerce). Because a statute that directly

criminalizes interstate transportation of stolen goods, see 18

U.S.C. § 2314, might not be sufficient by itself to stem the flow

of interstate trafficking in stolen property, Congress might

reasonably have determined that the best means of achieving

this end was to criminalize possession, etc. of stolen property

that had at one time traveled in interstate commerce. Thus, the

Government would not have to act to enforce the scheme at the

particular time of the transportation, but would have more

leeway in enforcement if allowed to base the prosecution solely

on possession of goods that had at some time been transported

in interstate commerce. The Court cannot upset Congress's

choice of means to reach a legitimate end as long as those

means are rational. See McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be

within the scope of the constitution, and all means which are

appropriate, which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional."). Therefore. because preventing

the interstate transportation of stolen goods is a legitimate end,

Congress's rational determination that the best means for doing

SO was to criminalize possession of stolen goods that had

crossed a state line renders the statute constitutional as a valid

exercise of the power to regulate interstate commerce.

Second, under the third category listed in Lopez,'' the

statute arguably satisfies the first subcategory of activities which

have a substantial relation to interstate commerce. First. traffic

in stolen goods is a form of negative commerce. Thus the person

who barters, sells, or disposes of stolen goods engages in an

activity that is alternative to legitimate interstate commerce in

goods, and therefore is in much the same position as Roscoe

Filburn, the farmer who grew more than his allotment of wheat.

intending to use it for home consumption. See Wickard vy.

Filburn, 317 U.S. 111 (1942). The Secretary of Agriculture

assessed a penalty against Filburn pursuant to statute. and the

Court upheld the application of the statute to Filburn's activity,

Stating:

7 The second Lopez category -- congressional regulation and

protection of the instrumentalities of interstate commerce. or

persons or things in interstate commerce -- is not implicated by

section 2315.

Le |

>

[Bjeing in marketable condition [home-consumed]

wheat overhangs the market and, if induced by rising prices,

tends to flow into the market and check price increases. But if

we assume that it is never marketed, it supplies a need of the

man who grew it which would otherwise be reflected by

purchases in the open market. Home-grown wheat in this sense

competes with wheat in commerce.

Id. at 128. True, as distinguished from Wickard, the

statute criminalizing the bartering, selling, or disposing of stolen

goods is "not an essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated."Lopez, 115 S. Ct. at

1631. Still, traffic in stolen goods is commerce in a way that

possession of a firearm within a school zone is not. Therefore,

this statute might be sustained as a regulation of this activity

that competes with legitimate interstate commerce."”

Third, and most important, section 2315 contains an

g In addition, it might be argued that criminalizing the

possession of stolen goods that have crossed a state line is

necessary and proper to eliminating the alternative market in

stolen goods which competes with legitimate interstate commerce.

However, in light of the leeway already granted to Congress in the

third category of activities that have a substantial relation to

interstate commerce, it would be improper to add a penumbra

around that category of activities by upholding statutes that are

necessary and proper to regulating an activity that bears a

substantial relation to interstate commerce. Whereas that

penumbra exists around the first category of permissible interstate

commerce clause regulations because it does not have built-in

deference, in effect, the necessary and proper clause is already

included in the formulation of the third category of permissible

regulations, those that regulate activities which have a substantial

relation to interstate commerce.

ee ee ne

35

express jurisdictional element that ensures that the possession of

Stolen goods in question affects interstate commerce, and

therefore satisfies the second subcategory of the third Lopez

category of permissible federal regulation. Compare Lopez, 115

S. Ct. at 1631. The statute requires that the stolen goods must

“have crossed a State or United States boundary after having

been stolen." 18 U.S.C. § 2315. Furthermore, the law is clear

that if an item has at some time travelled in interstate commerce,

regulation of that item is within the reach of Congress's

interstate commerce power to regulate "'all activity substantially

affecting interstate commerce.” Scarborough v. United States.

431 U.S. 563, 571 (1977) (quoting United States v. American

Bldg. Maintenance Indus. 422 US. 271, 280 (1975))

(interpreting statute criminalizing possessions of firearms "in

commerce and affecting commerce" by convicted felons),

Defendant argues that Scarborough is inapposite because the

Statute in Scarborough contained an explicit "interstate

commerce" element, which defendant argues is lacking in

section 2315. However, the teaching of Scarborough is that a

general jurisdictional element that an item be "in commerce [or]

affecting commerce" is satisfied by a showing that the item at

some time crossed a state boundary. See United States v.

Sorrentino, 72 F.3d 294, --, 1995 WL 759531, at *1 (2d Cir.

Dec. 26, 1995) ("Constitution requires only a 'minimal nexus

that the firearm have been, at some time, in interstate

commerce."’ (quoting Scarborough, 431 U.S. at 575)). Thus the

use of this specific requirement by Congress, rather than the

more general requirement that items be "moving as, or which

are a part of, or which constitute interstate or foreign

commerce," 18 U.S.C. § 2315 para. 2, does not render the

Statute constitutionally infirm, for the Supreme Court has held

that the specific occurrence satisfies the general requirement,

and therefore the specific requirement necessarily satisfies the

Lopez test of constitutionality -- that the activity substantially

affects commerce. Congress need not include a jurisdictional

element in haec verba to satisfy the constitutional test: it can

select a subset of the activities that substantially affect

36

commerce by specifying a particular type of connection to

interstate commerce. Congress has done so here by requiring

that the stolen goods cross a state or United States boundary

after having been stolen. Because the jurisdictional element

therefore ensures that the particular possessions of stolen goods

reached by the statute are substantially related to interstate

commerce, the statute is a constitutional exercise of Congress's

power to regulate interstate commerce. See Lopez, 115 S. Ct. at

1631.

II. The Ex Post Facto Clause and the Application of 18 U.S.C.

§ 2315 to Defendant

Defendant argues that the application of section 2315 to

him violates the Ex Post Facto Clause, see U.S. Const. art. 1, §

9, cl. 3, because his possession of the painting was not criminal

prior to 1986,’ and after 1986 it was illegal either to possess or

to dispose of the painting.

An Ex Post Facto law is one which (1) punishes an act

which was innocent when done, (2) makes the punishment of a

crime more burdensome after its commission, or (3) deprives

the defendant of any defense that was legally available at the

time the offense was committed.

United States v. Duncan, 42 F.3d 97, 103 n.5 (2d Cir.

1994). Defendant's argument does not implicate the second or

third categories of ex post facto laws, since the 1986

amendment did not increase the punishment for a crime, nor

9 The statute was amended in 1986 to include an offense of

possession. See Act of Nov. 10, 1986, Pub. L. No. 99-646, § 76,

100 Stat. 3592, 3618. Thus, prior to the amendment, defendant's

possession of the painting was innocent, and subsequent to the

amendment, it was criminal.

37

deprive defendant of a defense.'* The prosecution therefore

only violates the Ex Post Facto Clause if it punishes an act

which was innocent when done. See Collins v. Youngblood,

497 U.S. 37, 46 (1990) (holding that constitutional ex post facto

prohibition limited to defined categories). The relevant conduct

here is not the receipt of the painting; rather it is defendant's

continued possession of the painting after the amendment in

1986. See Samuels v. McCurdy. 267 U.S. 188, 193 (1925) ("It

does not fix a penalty for the owner for having become

possessed of the liquor. The penalty it imposes is for continuing

to possess the liquor after the enactment of the law.").'°

It is well settled that a "statute does not violate ex post

facto principies where it applies to a crime that ‘began prior to,

but continued after’ the statute's effective date." United States v.

Brady, 26 F.3d 282, 291 (2d Cir.) (quoting United States v.

Alkins, 925 F.2d 541, 549 (2d Cir. 1991)), cert. denied, 115 S.

Ct. 246 (1994). However, defendant's argument here is that,

because the statute also proscribed disposing of stolen property,

he was subject to prosecution whatever he did. and thus his

10 Because defendant was not prosecuted for his original

receipt of the painting (a prosecution that would have been barred

by the statute of limitations), the change in the jurisdictional nexus

language of the statute did not deprive him of the defense that was

legally available at the time of his receipt, namely, that the

painting had "come to rest" and was no longer moving in interstate

commerce. See United States v. Cruz, 50 F.3d 714, 717 (9th Cir.

1995) (similar amendment to 18 U.S.C. § 922(j) eliminated

coming-to-rest defense).

1 Thus, the parties' arguments regarding whether defendant

could be prosecuted for some crime on the day prior to the

amendment does not bear on the question of whether the relevant

act -- continuing possession -- was innocent when done.

prosecution is either barred by the Ex Post Facto Clause or the

Fifth Amendment. Despite the difficulty of defendant's

predicament in this case, his prosecution is not unconstitutional

because he could have, and should have, taken steps to extricate

himself from the predicament, and there were steps available to

him that neither punished him for an “unpreventable

consequence of conduct by the defendant before enactment,"

United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991), nor

forced him to incriminate himself in violation of his Fifth

Amendment right to be free from compelled self-incrimination.

First, defendant argues that even if he had somehow ceased

possessing the painting in response to the statute, he would not

have been able to act quickly enough to avoid prosecution for

possession, for undoubtedly he would have possessed it for

some moments after the effective date of the statute. However,

this hypothetical problem need not be decided by the Court, for

defendant in this case took no steps to cease his possession in

response to the amendment, and in fact continued to possess the

painting for years after the possession simpliciter had become

illegal. As applied to defendant, therefore, the statute does not

present the difficulty of ceasing possession quickly enough to

avoid prosecution.

Second, defendant argues that to cease possession of the

painting, he would have to dispose of it, in violation of the same

section 2315. Therefore, by analogy to cases striking down

misprision of a felony prosecutions where the prosecution

would have the effect of abrogating the Fifth Amendment

privilege against compelled self-incrimination, defendant argues

that the dilemma he faced had the effect of compelling him to

incriminate himself by disposing of the painting in a way that

would not be criminal. The facts are not analogous, however,

because defendant might have returned the painting to its

rightful owners, or given it to an agent who might be expected

to return the painting to its rightful owners, and never have had

to reveal his crimes to the government. See Godwin v. United

States, 687 F.2d 585, 588 (2d Cir. 1982) ("[T]here can be no

39

doubt that the federal offense of receiving stolen property

defined by § 2315 incorporates the common law exception for

possession with the purpose of restoring stolen property to the

owner."). Although the reality is that defendant would increase

the risk of being caught and prosecuted by taking such steps,

rather than quietly enjoying the stolen painting as he had for

years, that increased risk does not rise to the level of compulsion

which obtained in the misprision of felony cases. The case is

more analogous to cases involving a continuing conspiracy,

where a person is required to take affirmative steps to withdraw

from the conspiracy to avoid prosecution, or even to avoid a

punishment made more burdensome by a law passed during the

pendency of the conspiracy. See United States v. Borelli. 336

F.2d 376, 386 n.5 (2d Cir.) (Friendly, J.), cert. denied. 379 U.S.

960 (1964); United States v. Markman, 193 F.2d 574. 576 (2d

Cir.), cert. denied sub nom. Livolsi v. United States. 343 US.

979 (1952). The steps required of defendant in the case at bar to

avoid prosecution for possession are no more violative of his

privilege against compelled self-incrimination than the steps

required to effectively withdraw from a conspiracy. See United

States _v. Greenfield, 44 F.3d 1141, 1149-50 (2d Cir. 1995)

("[E]ither the making of a clean breast to the authorities. or

communication of the abandonment in a manner reasonably

calculated to reach co-conspirators’ is sufficient to establish

withdrawal." (quoting Borelli, 336 F.2d at 388)): see also United

States v. LaMorte, 950 F.2d 80, 84 (2d Cir. 1991) (approving of

instruction that "the defendant must have taken some type of

positive action to disavow or defeat the purpose of the

conspiracy" (emphasis added)), cert. denied. 504 U.S. 909

(1992). While defendant would certainly have increased the risk

that he would be prosecuted for his conduct regarding the stolen

painting had he attempted, by some means, to return it to its

rightful owners, he was not required to report his activity to the

authorities in order to avoid prosecution. But cf. United States v.

Kuh, 541 F.2d 672, 677 (7th Cir. 1976) (disclosing information

would place defendants "in the position of furnishing the

Government with evidence that could lead to their prosecution

Pt

semper ee - —

—

40

or conviction" (emphasis added)); United States v. King, 402

F.2d 694, 697 (9th Cir. 1968) (misprision of felony statute

"unconstitutional under the Fifth Amendment if, and to the

extent, applied to require one in defendant's circumstances, after

learning of the bank robbery, to report that information to the

authorities").

Therefore, the application of section 2315 to defendant

does not violate the Ex Post Facto Clause or the Fifth

Amendment.

III. Defendant's Right to a Unanimous Jury and the Grouping of

Acts in the Jury Charge

The Court instructed the jury that it must find,

unanimously, that defendant either "possessed, concealed, or

stored the property", or that defendant "bartered, sold, or

disposed of the property." Transcript at 1229. For two reasons,

defendant argues that this instruction deprived him of a

unanimous jury. First, certain jurors might vote to convict based

on one classification in the group, while others might vote to

convict on another classification in the group. The grouping of

acts was not error because the acts in question are not

conceptually distinct (for example, a single act of installing a

painting in a private place might be classified as either

possessing, storing, or concealing), and to require unanimity as

to one specific act might present problems of disagreements

among the jurors as to how to characterize the same acts. See

United States v. Gipson, 553 F.2d 453, 458 (Sth Cir. 1977)

("These six acts fall into two distinct conceptual groupings; the

first consisting of receiving, concealing, and storing, and the

second comprised of bartering, selling, and disposing. Within

each grouping, the acts are sufficiently analogous to permit a

jury finding of the actus reus element of the offense to be

deemed ‘unanimous’ ....").

Second, relying on language in United States v. Schiff,

4)

801 F.2d 108, 115 (2d Cir. 1986), cert. denied, 480 U.S. 945

(1987), that "[a] conviction based on such a verdict will stand if

there was sufficient evidence with respect to each ‘specification’

in the challenged count of the indictment," defendant asserts that

this grouping of classifications violated his right to a unanimous

jury because there was legally insufficient proof that defendant

bartered or sold the painting.'© However, the "specification"

referred to in Schiff is not the "classification" referred to in

Gipson. Rather, the specification is the factual basis to which

the classification is applied. "A jury must reach a unanimous

verdict as to the factual basis for a conviction." Schiff, 801 F.2d

at 114, but the jury need not reach a unanimous decision on how

precisely to characterize the facts when offered alternative

characterizations that are sufficiently analogous that they are

often not conceptually distinct. See Schad v. Arizona, 501 U.S.

624, 631 (1991) ("We have never suggested that in returning a

general verdict in such cases the jurors should be required to

agree upon a single means of commission, any more than the

indictments were required to specify one alone.").

In other words, the charge to the jury presented two

distinct criminal acts (possession, concealing, or storing stolen

goods, or bartering, selling, or disposing of the property), each

of which might be described by words with analogous, but not

identical, meanings. The jury was not presented with alternative

factual bases for these criminal acts, as for example where a jury

is presented with an actus reus of making a materially false

Statement in a proxy statement, but then is presented with two

12 Defendant concedes that he failed to object to the presence

of the classifications of selling or bartering in the jury instructions,

and therefore a simple challenge to this presence based on the

insufficiency of the evidence to support them is waived. Instead.

defendant argues that because the evidence was insufficient as to

these classifications, the presence of these classifications deprived

him of a unanimous verdict based on the language of Schiff quoted

in the text.

42

statements in that proxy statement that the government argues

are false. See United States v. Natelli, 527 F.2d 311, 324 (2d

Cir. 1975), cert. denied, 425 U.S. 934 (1976). In this example,

the jury is presented with alternative factual bases for satisfying

the actus reus requirement, and the jury must unanimously agree

that the same statement is materially false. In the case at bar, by

contrast, the jury was presented with alternate classifications

that are sufficiently analogous that they can be said not to be

conceptually distinct. Where alternative factual bases are

specified, there is a unanimity problem if the evidence is legally

insufficient as to one factual predicate; but where alternative

classifications that are not conceptually distinct are offered to

the jury, there is no unanimity problem if the evidence is legally

insufficient as to one classification. To hold otherwise would

entangle the Court in the same difficult semantic problems of

classifying the evidence within a single conceptual group that

was wisely rejected by Gipson. See Gipson, 553 F.2d at 458.

Accordingly, any insufficiency of proof as to selling or

bartering does not mean that the instruction violated defendant's

right to a unanimous verdict, since the conceptual grouping as a

whole was supported by evidence that was legally sufficient.

Therefore, the Court denies defendant's request for a new trial.

CONCLUSION

For the reasons stated above, defendant's motion for a

judgment of acquittal or, in the alternative, for a new trial is

HEREBY DENIED.

SO ORDERED.

APPENDIX C

Opinion of the United States Court of Appeals

for the Second Circuit

Denying Petitioner’s Motion for Rehearing

(August 28, 1997)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 28" day of

August one thousand nine hundred and ninety-seven.

USA

FILED

AUGUST 28, 1997

GEORGE LANGE III

CLERK

Dkt No. 96-1252

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed herein by the appellant

Barry Trupin.

Upon consideration by the panel that decided the appeal,

it is Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

By: s/s/ Beth J. Meador

Beth J. Meador

Administrative Attorney

45

APPENDIX D

Constitutional and Statutory Provisions

Involved in this Appeal

18 U.S.C. § 2315

Fed. R. Crim. P. 29(c)

Fed. R. Crim. P. 33

U.S. Const. Amend. V.

U.S. Const. Art. 1, § 8 Cl. 3

U.S. Const. Art. I, § 9, Cl. 4

18 U.S.C. § 2315. Sale or receipt of stolen goods, securities,

moneys, or fraudulent State tax stamps.

Whoever receives, possesses, conceals, stores, barters,

sells, or disposes of any goods, wares, or merchandise,

securities, or money of the value of $5,000 or more, or pledges

Or accepts as security for a loan any goods, wares or

merchandise, or securities, of the value of $500 or more, which

have crossed a State or United States boundary after being

stolen, unlawfully converted, or taken, knowing the same to

have been stolen, unlawfully converted, or taken; or

Whoever receives, possesses, conceals, stores, barters,

sells or disposes of any falsely made, forged, altered, or

counterfeited securities or tax stamps, or pledges or accepts as

security for a loan any falsely made, forged, altered or

counterfeited securities or tax stamps moving as, or which are a

part of, or which constitute interstate or foreign commerce,

knowing the same to have been so falsely made, forged, altered,

or counterfeited; or

46

Whoever receives in interstate or foreign commerce, or

conceals, stores, barters, sells, or disposes of, any tool,

implement, or thing used or intended to be used in falsely

making, forging, altering, or counterfeiting any security or tax

stamp, or any part thereof, moving as, or which is a part of, or

which constitutes interstate or foreign commerce, knowing that

the seme is fitted to be used, or has been used, in falsely

making, forging, altering, or counterfeiting any security or tax

stamp, or any part thereof—

Shall be fined under this title or imprisoned not more

than ten years, or both.

This section shall not apply to any falsely made, forged,

altered, counterfeited, or spurious representation of an

obligation or other security of the Untied States or of an

obligation, bond, certificate, security, treasury note, bill,

promise to pay, or bank note, issued by any foreign government.

This section also shall not apply to any falsely made, forged,

altered, counterfeited, or spurious representation of any bank

note or bill issued by a bank or corporation of any foreign

country which is intended by the law or usage of such country to

circulate as money.

For purpose of this section, the term “State” includes a

State of the United States, the District of Columbia, and any

commonwealth, territory, or possession of the United States.

Fed. R. Crim P. 29(c) Motion After Discharge of Jury.

If the jury returns a verdict of guilty or is discharged

without having returned a verdict, a motion for judgment of

acquittal may be made or renewed within 7 days after the jury is

discharged or within such further time as the court may fix

during the 7-day period. Ifa verdict of guilty is returned the

court may on such motion set aside the verdict and enter

judgment of acquittal. If no verdict is returned the court may

47

enter judgment of acquittal. It shall not be necessary to the

making of such a motion that a similar motion has been made

prior to the submission of the case to the jury.

Fed R. Crim. P.33 New Trial

The Court on motion of a defendant may grant a new

trial to the defendant if required in the interest of justice. If trial

was by the court without a jury the court on motion of a

defendant for a new trial may vacate the judgment if entered.

take additional testimony and direct the entry of a new

judgment. A motion for a new trial based on the ground of

newly discovered evidence may be made only before or within

two years after final judgment, but if an appeal is pending the

court may grant the motion only a remand of case. A motion for

a new trial based on any other grounds shall be made within 7

days after verdict or finding of guilty or within such further time

as the court may fix during the 7-day period.

U.S. Const. Amend. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

U.S. Const. Art I, § 8, Cl. 3

The Congress shall have Power ... To regulate commerce

with Foreign Nations, and among the several States, and with

the Indian Tribes.

48

U.S. Const. Art I, § 9, Cl. 4

No Bill of Attainder or ex post facto Law shall be

passed.