United States v. Donato Morales

United States Court of Appeals
For the First Circuit

No. 03-2062

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN J. DONATO-MORALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Joseph A. DiClerico, Jr.,* U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Harry Anduze-Montaño for appellant.

Vernon Benét Miles, Assistant United States Attorney, with
whom H.S. García, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, Chief, Criminal Division,
were on brief, for appellee.

September 2, 2004

*
Of the District of New Hampshire, sitting by designation.
 LYNCH, Circuit Judge. After a bench trial, Juan Donato-

Morales, then a United States Marshal, was convicted of larceny

from the United States, 18 U.S.C. § 641, for shoplifting a

videocassette recorder (VCR) at the Fort Buchanan Army and Air

Force Exchange Service (AAFES) in Puerto Rico. The government

introduced in evidence a surveillance video that showed Donato,

sequentially, taking one VCR out of its box and placing it on the

shelf, while placing the empty box on the floor. He then took a

second and different VCR out of its box, placed it into the box of

the first VCR, and put the second box back on the shelf. He then

took the first VCR's box with the second VCR in it to the checkout

and paid for it. In doing so he paid $99, the sale price on a $129

Mitsubishi HS-U445 VCR ("445"), while receiving a $189 Mitsubishi

HS-U746 VCR ("746"). After he paid and as he attempted to leave

the store, he was intercepted and questioned. His answers were not

consistent with the surveillance video. He was ultimately charged

and convicted.

Donato challenges his conviction on sufficiency of

evidence grounds, both overall sufficiency and sufficiency as to

intent. Section 641 requires, inter alia, that the defendant had

specific intent to steal a "thing of value." See id.; Morissette

v. United States, 342 U.S. 246 (1952). The question of intent is

a question of fact for the trier of fact. Id. at 274. Donato

argues that the government has not demonstrated beyond a reasonable

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doubt that he knew the 445 VCR cost less than the 746 VCR and,

hence, that he had specific intent to steal a "thing of value."

The price of the 746 VCR was not marked on the box, and the

government submitted no evidence that the price for that model was

displayed anywhere else. However, the original price and sale

price of the 445 VCR were marked on its box. Donato also argues to

us,1 as he did to the trier of fact, that as a U.S. Marshal he knew

there was a surveillance camera at the store, and that as a result

the evidence should be interpreted to mean he lacked the intent

required because he would not have shoplifted with a surveillance

camera operating.

We reject Donato's arguments. On the basis of the video,

which shows a purposeful transfer of the more expensive VCR to a

box that contained the less expensive VCR, and on the basis of

Donato's subsequent statements to the AAFES security officer, to

the military police, and in his trial testimony, which are

inconsistent with the video and the testimony of other witnesses,

we cannot say a reasonable factfinder could not conclude beyond a

1
For example, in his initial brief, Donato stated:

Appellant spent eighteen (18) years of his life as a
distinguished member of the United States Marshal Office,
occupying there various positions of great
responsibility. Around the time of the incident that
brings forth this case, Mr. Donato earned approximately
one hundred thousand dollars ($100,000) a year.

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reasonable doubt that Donato switched the VCRs with the intent to

steal something of value. Accordingly, we affirm.

I.

On January 4, 2003, Donato went to the AAFES to buy a

VCR. He testified that he needed a VCR with an S-video input, so

that he could transfer his daughter's wedding video from his

brother's video camera onto tape. S-video is a technology for

transferring video images between video cameras, game consoles,

televisions, computer monitors, and the like; when images are to be

displayed on a television screen, those transferred using S-video

will be sharper. See Webopedia, Definition of S-video, at

http://www.webopedia.com/TERM/S/S_Video.html.

Mark Montalvo, a store employee, testified that, at a

time before the events shown in the surveillance video, he opened

a box containing a Mitsubishi VCR for Donato and showed Donato the

S-video input jack in the back of the VCR. Donato, Montalvo

testified, seemed "pleased" with what he saw, and their

conversation ended. Although Montalvo could not remember the

precise model number of the Mitsubishi VCR he showed Donato, he

identified it as the one that Donato ultimately selected, i.e., the

746. Montalvo further testified that he had said "[n]othing" to

Donato concerning the opening of boxes and that store policy

required a sales associate to be present when customers opened

merchandise.

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 Donato's testimony contradicted Montalvo's. Donato

denied that Montalvo showed him a VCR with an S-video input and

also claimed that Montalvo gave him permission to open VCR boxes on

his own to check for S-video inputs.

After speaking to Montalvo, Donato continued shopping and

put a different VCR, a Sony N88 that Montalvo testified cost

approximately $99, in his shopping cart. Donato's next moves were

captured on surveillance video. Donato removed a Mitsubishi HS-

U445 VCR, which did not have an S-video input, from its box and

packaging, inspected it, and left the VCR unit on the display

shelf. The 445 box (which was admitted in evidence) had both a

$129 price sticker and a $99 price sticker on it. Donato put the

445 VCR box, with the foam packaging still inside, on the floor,

leaving the VCR itself on the shelf. Donato then pulled the

Mitsubishi HS-U746 VCR box from the bottom shelf and placed it onto

the floor just next to the 445 box; he then sliced opened the 746

box. The 746 VCR, which cost $189,2 did not have a price sticker

on it. At this point, the 746 and 445 VCR boxes were next to each

other; the 445 box had only foam packaging inside and the 746 box

2
Donato argues that the government violated the best
evidence rule, Fed. R. Evid. 1002, by relying on the security
officer's testimony of the price rather than a written printout
from the scanner that the officer used to determine the price. The
district court correctly rejected this objection at trial. The
best evidence rule applies only to evidence submitted to prove the
content of writings, recordings, or photographs. The officer's
testimony was not offered to prove the content of the scanner
display, but rather the price of the VCR.

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still had its VCR in it. Donato paused for several seconds,

looking back and forth between the two boxes, and then removed the

foam packaging from the 445 box, leaving it completely empty.

Donato next removed the 746 VCR from its box with its

foam packaging and wrapper intact. The wrapper, which was semi-

opaque, covered the entire VCR. At no point did Donato remove the

wrapper to examine the VCR or attempt to look at the VCR through

the wrapper. Instead, Donato briefly examined the cover of the 746

manual. That cover did not expressly indicate that the VCR had an

S-video input.3 Donato also examined a plastic bag with the cables

and controls of the 746 for approximately three seconds. The

controls of the 445 and 746 look identical, as do three of the four

cables included with each VCR. The end of the black cable for the

746, though, is slightly different from its counterpart in the 445:

the end of the 746 cable is about half a centimeter longer and has

more pins inside it. Donato then put the 746 VCR, still unexamined

and intact in its foam packaging and wrapper, into the 445 box,

picked up that box, and put it into his shopping cart. The entire

process of switching the two VCRs was completed in just over three

minutes.

Donato then gathered up the foam packaging, manual,

controls, and cables for the 445 VCR, put them in the 746 box, and

3
The manual cover did have an SVHS symbol in one corner,
but that symbol did not provide any new information, as it was also
displayed prominently on the outside of the 746 box.

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returned that box to the shelf. He put the Sony VCR that had been

in his shopping cart on the shelf as well and began pushing his

cart down the aisle.

The 445 VCR box, with the 746 VCR inside it, was sitting

open in his shopping cart with the 746 manual lying face-up on top.

"Model HS-U746" is printed in approximately 30 point font in the

center of the 746 manual cover. When Donato first opened the 746

box, the manual had been lying flat on top. Montalvo confirmed in

his trial testimony that this is the typical placement of the

manual in most VCRs. In the video, Donato is shown folding the 746

manual and stuffing it down the side of the box, where its cover

was no longer visible, before leaving the area. At trial, in

contradiction to the video, Donato denied that he had stuck the

manual down the side of the box and insisted that the manual had

been in "plain view on top of the VCR."

Once outside the aisle, Donato is shown speaking for two

or three seconds to Mark Montalvo. Donato testified that he asked

Montalvo if it was a problem that the box was open, and that

Montalvo closed the box and said that it was not a problem because

the cashier at the checkout counter was "going to check the box

anyway." Donato is then shown pushing the cart away, pressing on

the top of the box to keep it closed.

After wandering around the store for another ten minutes

and picking up some other items, Donato proceeded to check out at

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the jewelry counter. At no point in the video did Donato place the

VCR on the checkout counter or otherwise hand it to the cashier.

During the entire checkout process, he kept the VCR in the shopping

cart, and until he signed the credit card receipt, he kept his arm

draped over the top of the box, holding it closed. Donato

ultimately paid $99 for the VCR. He testified that the cashier

told him that the VCR was discounted by $30 from its $129 price,

but that he had not been aware of the discount until then. On

cross-examination, Donato said that he had "turned the box around"

so the cashier could "look[] at the price." The surveillance video

shows that when Donato first approached the checkout counter, the

$129 price faced the cashier, but he later turned the box so that

the side with the $99 price faced the cashier instead.

Donato was apprehended at the exit by AAFES security

officer Nelson Colon, who had been observing Donato on the

surveillance video. Colon asked for Donato's identification and

his receipt. Donato showed his Marshal's identification and the

receipt; the two then went to a small security office. Colon

testified that when he confronted Donato about the fact that Donato

had switched the VCRs and that the wrong VCR was in the box, Donato

"said it was probably a mistake." Colon further testified that he

"asked [Donato] if he had a chance to switch the VCRs and the

boxes" and that Donato said "no." The video shows that this was

plainly untrue. Donato confirmed in his trial testimony that after

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Colon confronted him, he told Colon, "That was a bit of a mistake.

It has to be a mistake because what I came here for is looking to

buy a VCR that has to be with S video."

Donato was later interviewed by Ricardo Seija, a military

police officer. Seija testified that when he informed Donato that

Donato was suspected of shoplifting, Donato showed surprise and

"said he didn't know what it was about." Donato confirmed at trial

that when Seija told him that he was going to be given a citation

for shoplifting, Donato said, "[W]hat? Shoplifting what? What do

you mean?" Donato testified, "I told him, listen, that must have

been a mistake."

On March 12, 2003, the government charged Donato with

federal larceny under 18 U.S.C. § 641. A bench trial was held on

April 1, 2003. Donato moved under Fed. R. Crim. P. 29 for a

judgment of acquittal at the close of the government's case,

arguing that no specific intent had been shown. The court denied

the motion. Donato then testified in his own defense. On cross-

examination, he stated, "I didn't realize that [I had switched the

VCRs] until I saw that in the video." He repeated, "I didn't

realize I made a mistake." At the close of all evidence, Donato

renewed his Rule 29 motion, which the court again denied.

Two days later, the court found Donato guilty. At

Donato's sentencing hearing on June 17, 2003, the court noted for

the record that "Mr. Donato's testimony concerning the material

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events that occurred on January 4th, 2003, the date of the event

was not credible." The court required Donato to pay a $1000 fine

and a $25 special monetary assessment.

Donato timely appealed, challenging the sufficiency of

evidence supporting his conviction.

II.

Donato's claims of insufficiency of the evidence as a

whole and insufficiency on the issue of intent are reviewed de

novo. We must affirm if "viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt." United States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004)

(quoting United States v. Casas, 356 F.3d 104, 126 (1st Cir.

2004)). All credibility assessments must be resolved in favor of

the verdict. Id. This same deferential standard of appellate

review applies to the issue of intent, which is an issue of fact.

Donato argues more specifically that the evidence at

trial was not sufficient to support a finding of specific intent.

The statute under which Donato was convicted, 18 U.S.C. § 641,

provides that:

Whoever embezzles, steals, purloins, or knowingly
converts to his use or the use of another, or without
authority, sells, conveys or disposes of any record,
voucher, money, or thing of value of the United States or
of any department or agency thereof, or any property made
or being made under contract for the United States or any

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 department or agency thereof . . . [s]hall be fined under
this title or imprisoned not more than ten years, or both
. . . .

Although § 641 does not expressly require specific intent, the

Supreme Court has held that Congress, in codifying the common law

crimes described in § 641, intended to incorporate the common law

requirement of specific intent as an element of the crime.

Morissette, 342 U.S. at 270-73.

The evidence here was sufficient to allow a rational

factfinder to conclude beyond a reasonable doubt that Donato had

specific intent to "steal . . . a thing of value" from the United

States. Direct evidence of specific intent is seldom available,

United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. 1991), and

this case is no exception. But specific intent, like any other

element,4 can be established through circumstantial evidence.

United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995); United

States v. Olbres, 61 F.3d 967, 971 (1st Cir. 1995). We conclude

that it has been here.5

4
For example, in drug conspiracy cases, inferences are
commonly drawn from circumstantial evidence as to the elements of
conspiracy, including intent. See, e.g., United States v. Llinas,
373 F.3d 26, 30 (1st Cir. 2004); United States v. Morales-Madera,
352 F.3d 1, 12 (1st Cir. 2003); United States v. Akinola, 985 F.2d
1105, 1109 (1st Cir. 2003); United States v. Clifford; 979 F.2d
896, 898 (1st Cir. 1992); United States v. Gomez-Pabon et al., 911
F.2d 847, 853 (1st Cir. 1990).
5
In disagreeing with this conclusion, the dissent cites to
Conley v. United States, 323 F.3d 7 (1st Cir. 2003) (en banc). But
Conley remanded on the issue of evidence said to be wrongfully
withheld, and not on the issue of the sufficiency of the evidence.

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 From viewing the video, the district court could easily

infer that Donato deliberately swapped the VCRs and that the video

is inconsistent with Donato's claim of innocence. In addition to

a visual depiction of Donato's deliberate movements, it is

reasonable to conclude that there was no reason for Donato to

remove the foam packaging from one empty box (which was the 445

box), other than to make room for the VCR taken from the other box

(which was the 746 VCR). At that point, Donato had already taken

the first VCR (the 445 VCR) out of its box, checked the back for an

S-video input, and set it aside on the shelf. This inference is

reinforced by the fact that, immediately before Donato removed the

foam, he is shown on the surveillance video looking back and forth

between the empty 445 box and the 746 VCR in its open box.

A rational factfinder could also conclude that Donato

opened the 746 box in order to make the switch, not to check for an

S-video input. Montalvo testified that he already showed Donato

the 746 and its S-video input. Although Donato's testimony is to

the contrary, the trier of fact could reasonably credit the

testimony of Montalvo, who had no reason to lie, over that of

Donato, who had much at stake and who the trial judge found was not

a credible witness. The conclusion that Donato already knew the

746 had an S-video input is reinforced by the fact that he neither

checked the back of the 746 VCR for an S-video input nor took the

It is simply not pertinent here.

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VCR out of its foam packaging and semi-opaque wrapper. At trial,

Donato testified that he did not need to look at the VCR because he

knew it had an S-video input based on the cables in the 746 box.

But if Donato could tell whether a VCR had an S-video input merely

by looking at the small differences in one of the four cables,

there would be no need to remove either the 445 or 746 VCRs from

their boxes. Donato could simply have taken out the cables, which

were in a bag separate from the VCR, and examined them.6 In short,

a reasonable factfinder viewing the video could conclude there was

no mistake. Donato intended to switch the two VCRs.

The conclusion that the switch was deliberate is further

supported by what the court could have reasonably viewed as

Donato's attempt to cover up the switch. See United States v.

Llinas, 373 F.3d 26, 32-33 (1st Cir. 2004) (jury could reasonably

find that the defendant lied and rely on that finding, in

combination with other circumstantial evidence, to support an

inference of criminal knowledge and intent); United States v.

6
Moreover, the video shows that Donato did not appear to
examine the cables very closely. Donato, who testified that he had
no special knowledge of VCRs beyond what his brother told him about
making sure the VCR had an S-video jack in the back, looked at the
cables for only about three seconds at arm's length. The only
differences between the cables are that (1) the end of one of the
four cables in the 746 is about half a centimeter longer than its
445 counterpart, and (2) the end of that 746 cable has more pins
than its 445 counterpart. The video shows that Donato never
performed a side-by-side comparison of the 746 and 445 cables and
never looked inside the ends to check the number of pins.

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Hadfield, 918 F.2d 987, 999 (1st Cir. 1990) (defendant's attempt to

cover up by telling a "tall tale" supports inference of guilt).

Donato is shown in the surveillance video stuffing the

746 manual, which stated the model number in large letters, and

would thus give away that he had the wrong VCR in the 445 box, down

the side of the box, where it would no longer be visible. Donato

is also shown during checkout with his arm draped over the box,

holding it closed, even though he testified that store associate

Mark Montalvo had earlier informed him that the cashier was

supposed to check the opened box. Moreover, according to the

uncontroverted testimony of AAFES security officer Nelson Colon,

Donato told Colon that he did not have a "chance to switch the

VCRs," a statement that was plainly false.

In addition, a rational factfinder could conclude that

Donato repeatedly lied in his trial testimony. Donato testified

that the 746 manual was at the top of the box in plain view when he

left the aisle and that he had not stuck it down the side of the

box, a statement flatly contradicted by the surveillance footage.

Donato testified that Montalvo had not shown him a VCR with an S-

video input and that Montalvo gave him permission to open VCR boxes

on his own. Montalvo contradicted both statements in his trial

testimony. The court could reasonably find that Montalvo was

telling the truth and Donato was lying. Also, Donato testified

that he had not seen a price tag on the box he took to the cash

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register, when the video shows him turning the box at checkout so

that the cashier could see the $99 price tag, rather than the $129

price tag. Indeed, at sentencing, the trial judge said that as a

trier of fact he found Donato's testimony was not credible.

"Credibility determinations by the trier of fact are accorded

special deference." United States v. Bouthot, 878 F.2d 1506, 1514

n.8 (1st Cir. 1989).

This court has repeatedly noted that a defendant's

materially false testimony can be powerful evidence of criminal

intent, at least when supported by other circumstantial evidence.

Llinas, 373 F.3d at 33 (collecting cases). Here, given the strong

evidence showing that the switch of the VCRs was deliberate, a

rational factfinder could conclude that Donato lied to the AAFES

security officer, again to the military police officer, and again

to the trial judge when he claimed that the switch was a "mistake."

A factfinder could further conclude that Donato lied again when he

told the AAFES security officer that he had not had a chance to

switch the VCRs and then repeatedly perjured himself in his trial

testimony.

It is easy to infer from the evidence that Donato knew to

a high degree of probability he was taking something of value

belonging to the government. He did so by getting the benefit of

a more expensive VCR for the less expensive price of the model 445

(or by getting a non-sale item at a sale price to the detriment to

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the government, or both). At a minimum, defendant knew his actions

were highly probably to result in taking something of value, as

indeed happened. This standard is set forth in the Model Penal

Code at § 2.02(7) ("Requirement of Knowledge Satisfied by Knowledge

of High Probability: When knowledge of the existence of a

particular fact is an element of an offense, such knowledge is

established if a person is aware of a high probability of its

existence, unless he actually believes7 that it does not exist.").

This standard has been adopted by the Supreme Court (and by other

circuits) in analogous cases. See United States v. Aguilar, 515

U.S. 593, 599 (1995) (specific intent to obstruct justice is shown

when the defendant knows his actions are "likely" to affect the

outcome of the judicial proceeding)8; Turner v. United States, 396

7
The evidence is inconsistent with a theory that Donato
actually believed that there was no price differential. Nor did he
assert that defense; his defense was mistake.
8
The dissent, citing Morissette v. United States, 342 U.S.
246 (1952) contends that, unlike § 641, Aguilar "involves
obstruction of justice in a statutory context not controlled by
longstanding common law jurisprudence." This premise is mistaken.
Aguilar itself looks to Pettibone v. United States, 148 U.S. 97
(1893), in order to construe the intent requirement for obstruction
of justice. Pettibone notes that, like § 641, the federal
obstruction of justice statute is rooted in the common law of
conspiracy, and as a result requires knowledge of all material
facts. Id. at 203. Morissette, when making the distinction
between statutes rooted in the common law and "offense[s] new to
general law," was referring to the rising class of "regulatory"
crimes, for which dispensing with a knowledge requirement would be
possible. Morissette, 342 U.S. at 248-49. Obstruction of justice
is not such a crime, nor did the Supreme Court treat it as such in
Aguilar. The dissent's argument also fails to account for Turner
and Leary.

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U.S. 398, 416 (1970) (Saying, in drug importation case: "There is

no proof that [defendant] had specific knowledge of who smuggled

his heroin or when or how the smuggling was done, but we are

confident he was aware of the 'high probability' that the heroin in

his possession had originated in a foreign country."); Leary v.

United States, 395 U.S. 6, 46 n. 93 (employing Model Penal Code

§ 2.02(7) definition of knowledge as to "knowing" requirement of 21

U.S.C. § 176(a)); United States v. Caminos, 770 F.2d 361, 365 (3d.

Cir. 1985) (in drug importation and possession case, knowledge

requirement satisfied where "defendant himself was subjectively

aware of the high probability of the fact in question"). See also

United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993)

(citing above Supreme Court cases with approval and adopting Model

Penal Code definition of knowledge as to "knowing" requirement of

§ 2K1.4(a) of the Sentencing Guidelines); United States v. Karlic,

997 F.2d 564, 569 (9th Cir. 1993) (same). Further, this court has

mentioned Model Penal Code § 2.02(7) with approval when adopting

the Model Penal Code's "knowing" definition in other contexts. See

United States v. Ruiz, 105 F.3d 1492, 1507 & n.16 (1st Cir. 1997);

United States v. DiSanto, 86 F.3d 1238, 1257 & n.29 (1st Cir.

1996). Here the evidence, while not direct, was strong, and

certainly adequate to support the verdict. A rational trier of

fact could have found the essential elements of a case beyond a

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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

We affirm the conviction.

Dissenting Opinion Follows.

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 TORRUELLA, Circuit Judge (Dissenting). Like anyone

charged with a crime, appellant is entitled to put the government

to the test to prove each and every element of the crime alleged by

proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-

62 (1970)(this requirement "dates at least from our early years as

a Nation"). Because I am firmly convinced that the government has

failed to meet this burden by failing to prove that appellant had

the specific intent to steal a "thing of value" from the United

States, as required by Morissette v. United States, 342 U.S. 246

(1952), I respectfully dissent.

The house of cards upon which the government bases its

case is anchored on the theory that appellant intended to steal

something of value because he switched the contents of two VCR

boxes, in order to pay less for certain merchandise displayed at

the Camp Buchanan PX than this merchandise was worth.1 Crucially,

the government has failed to establish criminal intent because

there is no proof, direct or circumstantial that prior to his being

stopped by security personnel as he left the store, appellant was

aware of the difference in price between the two VCRs in question,

Models 445 and 746. The uncontradicted evidence is that: (1) only

1
Although the amount paid by appellant for the
merchandise in question was only $99, the price tag actually on the
VCR's box was for $129. The evidence does not show that appellant
learned of the lower price before he paid for the VCR at the cash
register and was informed by the cashier that this VCR was on sale
at the lower price.

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the lower priced model (445) had a price tag, (2) the video

introduced in evidence clearly shows that the place for the price

on the 746 was blank, (3) the two models were next to each other on

contiguous shelves without different pricing being displayed in the

shelving (or for that matter, anywhere in the store) apprising

prospective buyers of a difference in price, (4) the boxes on both

models are practically indistinguishable, and (5) the two VCR

models are also indistinguishable except for the end of the

connecting cable in the 746 model, which is "about half a

centimeter longer and has more pins inside it" than in the 445.

Maj. op. at 6.

With this record, it is impossible to supply the missing

indispensable link establishing proof of appellant's intent to pay

less. Less than what? Unless it was clearly apparent to the

appellant, at the time of the exchange, that there was a difference

in value and thus that appellant was taking "something of value,"

the proof of the appellant's criminal intent is missing. This

proof cannot be supplied after the fact as has been done here.

Appellant's alleged lack of credibility does not supply the missing

element, as it cannot be claimed that he was lying about the price

of the merchandise or any other matter establishing the price

difference. Neither can one extract circumstantial evidence of

guilt from appellant's demeanor in switching boxes which were

practically identical and showed no price difference.

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 What we have here is a situation similar to one in which

both VCR models are in fact equally priced. Clearly appellant

could not be convicted of taking something of value from the United

States under those circumstances. The government thus was required

to show that, at the time of the alleged taking, appellant was

aware that the merchandise had different prices. This has not

happened.

The flaw in the majority's reasoning, and thus in its

faulty conclusion, is highlighted when it states that "Donato knew

to a high degree of probability he was taking something of value

[because he was] getting the benefit of a more expensive VCR for

the less expensive price of the model 445 (or by getting a non-sale

item at a sale price to the detriment to the government, or both)".

Maj. op. at 15 (emphasis supplied). There is no basis in the

record for these assumptions which are key to finding appellant

guilty. There is no evidence that appellant knew, or could have

known, that one VCR was more expensive than the other.

The majority's conclusions are based on unsound

assumptions and are in stark contrast with Conley v. United States,

323 F.3d 7 (1st Cir. 2003)(en banc), a case in which after a jury

conviction of a Boston policeman for perjury, twice affirmed and

certiorari denied, this court on the third appeal stated in

remanding for alleged Brady violations, "[t]he government's

evidence at trial was adequate for conviction, but it was always

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circumstantial . . . ." Id. at 16. The evidence of price

difference in this case is not even circumstantial and much less

adequate and thus the conviction should be reversed. This house of

cards should fall of its own weight.

I respectfully dissent.

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