# Appendix — Trupin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1051

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1810%3A2. Public record. Not legal advice.