United States v. Donato-Morales

382 F.3d 42 (2004)

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Nature of the Case

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Facts

D was a United States Marshall. D went to the AAFES to buy a VCR. D said he needed a VCR with an S-video input. A store employee testified that he opened a box containing a Mitsubishi VCR for D and showed d the S-video input jack in the back of the VCR. The employee could not remember the precise model number of the Mitsubishi VCR he showed D, he identified it as the one that D ultimately selected, i.e., the 746. D denied that the employee showed him a VCR with an S-video input and also claimed that the employee gave him permission to open VCR boxes on his own to check for S-video inputs. D continued shopping and put a different VCR, a Sony N88 that the employee testified cost approximately $ 99, in his shopping cart. D's next moves were captured on surveillance video. D 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. D 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 open the 746 box. The 746 VCR, which cost $189, 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 still had its VCR in it. D 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. D removed the 746 VCR from its box with its foam packaging and wrapper intact. The wrapper, which was semi-opaque, covered the entire VCR. D did remove the wrapper to examine the VCR or attempt to look at the VCR through the wrapper. D briefly examined the cover of the 746 manual. D 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. D 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. D then gathered up the foam packaging, manual, controls, and cables for the 445 VCR, put them in the 746 box, and 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. During the entire checkout process, D 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. D paid $ 99 for the VCR. D was arrested at the exit. D claimed it was all a mistake. D also lied about switching the units. D was charged with federal larceny and argued that no specific intent had been shown. D claimed it was all a mistake and he didn't realize he switched the units. D was convicted and appealed.