United States v. 2006-03-21 | 04-10495 | USA VLIGON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-10495
v.  D.C. No.
CR-03-00189-HDM JOHN LIGON,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 04-10524
Plaintiff-Appellee, D.C. No.
v.  CR-03-00189-HDM
CARROLL MIZELL, aka Cal Smith, OPINION
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
October 20, 2005—San Francisco, California
Filed March 21, 2006
Before: Stephen Reinhardt, Sidney R. Thomas, and William
A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
2989

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COUNSEL
Richard F. Cornell and Scott N. Freeman, Reno, Nevada, for
appellant Ligon.
Richard F. Cornell and David R. Houstin, Reno, Nevada, for
appellant Mizell.
Ronald C. Rachow and Robert Don Gifford, II, Office of the
United States Attorney, Reno, Nevada, for the appellee.
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OPINION
W. FLETCHER, Circuit Judge:
Defendants John Ligon and Carroll Mizell appeal their fel-
ony convictions under 18 U.S.C. § 641 for theft of govern-
ment property. They contend, inter alia, that the government
did not prove that the property had a “value” within the mean-
ing of § 641. We agree and reverse the convictions.
I. Factual Background
The United States Forest Service (“USFS”) posted a reward
for information concerning the theft of several Native Ameri-
can petroglyphs that had been removed from an unmarked site
on the side of a mountain in northwest Reno. Acting on a tip
received under a “secret witness” program, Reno police found
two of the petroglyphs prominently displayed in the front yard
of Ligon’s home, and a third in the back of his Suburban vehi-
cle parked at his home.
USFS special agents then interviewed Ligon and Mizell.
Ligon explained that he drove out to the mountainside and
used a winch and a roller device to pull the three “rocks” out.
He admitted that he never sought permission or advice before
taking the rocks, and that he excavated them after dark. He
claimed that he took the rocks in order to protect them from
being “bowled over” by an encroaching construction develop-
ment, and to display them in his front yard. Mizell stated that
he went to the mountainside with Ligon, and he corroborated
that the winch and roller device had been used to extract the
petroglyphs and move them to Ligon’s yard. A USFS special
agent found a pry bar on the mountainside near where the pet-
roglyphs had been, but neither Ligon nor Mizell mentioned
using this tool.
A grand jury indicted Ligon and Mizell for removing
archaeological resources in violation of 16 U.S.C. § 470ee
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(Count I), and stealing United States government property in
violation of 18 U.S.C. § 641 (Count II). Count I charged that
each defendant “did knowingly excavate, remove, damage
and otherwise alter and deface archaeological resources
located on public lands . . . without having a permit to do so,
and commercial and archaeological value and the cost of res-
toration and repair of said resources exceed[ed] the sum of
$500.” Count II charged that the defendants “did willfully and
knowingly steal . . . three petroglyph rocks . . . having a value
in excess of $1,000, and which was then and there the prop-
erty of the United States[.]” The jury acquitted Ligon and
Mizell of Count I, but found them both guilty of knowingly
stealing property valued at more than $1,000 under Count II.
Before trial, a USFS archaeologist prepared a report that
included an estimate of “commercial or fair market value” by
Mark Bahti, the owner of “Bahti Indian Arts,” a commercial
art gallery in Tucson, Arizona. Bahti’s report was based on
photographs of the petroglyphs. Noting that they had been
“badly scarred in the removal process,” Bahti estimated their
retail value at $800 or $900. He “conservatively” estimated
that they could be sold for $1,500 if they were in good condi-
tion.
The government did not introduce Bahti’s report at trial. In
fact, the government introduced no evidence at all of market
or other monetary value of the petroglyphs. For both Counts
I and II, it relied only on “archaeological value,” a valuation
concept that considers the worth of archaeological informa-
tion. A USFS archaeologist testified that the petroglyphs had
an archaeological value in the $8,000 range, and a USFS spe-
cial agent testified that she could not determine a “commer-
cial value” for the petroglyphs, even after contacting
numerous sources. The jury instruction on property value for
Count II provided: “On the valuation issue as to Count Two,
the government relies on archaeological value.”
At the close of evidence, the defendants moved for judg-
ments of acquittal on Count II under Federal Rule of Criminal
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Procedure 29(a) on the ground that the government had intro-
duced no evidence of value within the meaning of § 641. The
district court took the motions under advisement and submit-
ted the cases to the jury. After the jury returned verdicts of
guilty on Count II, defendants renewed their motions for
acquittal, now as Rule 29(c) motions. Defendants attached
copies of Bahti’s report to their renewed motions. The district
court denied the motions.
II. Discussion
[1] Section 641 criminalizes the theft of a “thing of value
of the United States.” 18 U.S.C. § 641. The statute provides
two tiers of penalties depending on the value of the stolen
property. If the value exceeds $1,000, the court can sentence
the defendant to a maximum of ten years in prison. Id. Since
this offense is “punishable” by a term of imprisonment “ex-
ceeding one year,” it constitutes a felony. 18 U.S.C. § 1(1). If
the value is $1,000 or less, however, the maximum sentence
is one year, 18 U.S.C. § 641, which makes the offense a mis-
demeanor. 18 U.S.C. § 1(2). Regardless of whether the gov-
ernment charges a felony or a misdemeanor, value is an
element of the offense, and the government must prove that
the property stolen had “value.” United States v. Seaman, 18
F.3d 649, 650 (9th Cir. 1994) (noting that “value” is an ele-
ment of a § 641 offense).
[2] Section 641 defines “value” as “face, par, or market
value, or cost price, either wholesale or retail, whichever is
greater.” 18 U.S.C. § 641. The historical and statutory notes
to § 641 indicate that the 1948 drafters adopted this definition
“to conform with that provided in section 2311 of this title.”
Construing § 2311, we have found that “where goods have no
readily ascertainable market value, ‘any reasonable method
may be employed to ascribe an equivalent monetary value to
the items.’ ” United States v. Drebin, 557 F.2d 1316, 1331
(9th Cir. 1977) (quoting United States v. Lester, 282 F.2d 750,
755 (3d Cir. 1960)). In a more recent § 641 case, we inter-
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preted “market value” to include value in a so-called “thieves’
market”:
In the absence of face or par value, property value is
determined by market forces which establish the
price at which a buyer is willing to offer the property
to a willing seller. As there is no commercial market
for [the property in question in this case], however,
comparisons with similar transactions in a conven-
tional market do not exist to assess the value of this
particular sale. In such cases, the property’s value in
an illegal market may be considered. This gives
§ 641 its obvious, and certainly its practical, mean-
ing, namely, the amount the goods may bring to the
thief.
United States v. Bigelow, 728 F.2d 412, 413-14 (9th Cir.
1984) (citations and internal quotation marks omitted).
The government did not rely on the definition of “value” in
§ 641. Instead, it entirely relied on “archaeological value,” as
that term is used in 16 U.S.C. §§ 470ee(d) and 470ff(a)(2)(A),
for proof of value under 18 U.S.C. § 641. The following col-
loquy between the district court and the government during
the discussion of the defendants’ Rule 29(a) motions makes
this clear:
The Court: Is there evidence in this case on the mar-
ket value?
Mr. Gifford [for the government]: No, Your Honor
. . . .
. . .
Mr. Gifford: We only presented archaeological
value, Your Honor. And that’s all we’re —
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The Court: Okay. Is there anything here on par
value?
Mr. Rachow [for the government]: Your Honor,
there’s no definition of par value.
The Court: Is there anything on face value?
Mr. Gifford: No, Your Honor.
The Court: Okay. So what you’re relying on is the
archaeological value and asking that that be extrapo-
lated and used for purposes of Count Two in estab-
lishing the value, is that correct?
Mr. Gifford: Yes, Your Honor.
[3] Congress coined the term “archaeological value” when
it passed the Archaeological Resources Protection Act
(“ARPA”) in 1979. ARPA protects “archaeological resources
and sites which are on public lands and Indian lands.” 16
U.S.C. § 470aa(b). Violators of ARPA are subject to penalties
that vary depending on the “commercial or archaeological
value of the archaeological resources involved” and the “cost
of restoration and repair.” Id. §§ 470ee(d), 470ff(a)(2).
[4] Regulations promulgated pursuant to ARPA define “ar-
chaeological value” as the value of archaeological informa-
tion rather than the value of archaeological artifacts. These
regulations share the following definition:
Archaeological value. For the purposes of this part,
the archaeological value of any archaeological
resource . . . shall be the value of the information
associated with the archaeological resource. This
value shall be appraised in terms of the costs of the
retrieval of the scientific information which would
have been obtainable prior to the violation. These
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costs may include, but need not be limited to, the
cost of preparing a research design, conducting field
work, carrying out laboratory analysis, and preparing
reports as would be necessary to realize the informa-
tion potential.
18 C.F.R § 1312.14(a); 32 C.F.R. § 229.14(a); 36 C.F.R.
§ 296.14(a); 43 C.F.R. § 7.14(a) (emphasis added). “Archaeo-
logical value” is based on an analysis that “go[es] back in
time before the violation occurred and estimate[s] what it
would have cost the United States to engage in a full-blown
archaeological dig at the site” in order to obtain the archaeo-
logical information. United States v. Quarrell, 310 F.3d 664,
679 (10th Cir. 2002) (citation omitted).
[5] “Archaeological value,” so defined, is not the equiva-
lent of, nor is it encompassed by, “face, par, or market value,
or cost price, either wholesale or retail,” as those terms are
used to define “value” in § 641. Moreover, our case law is
clear that acceptable alternative methods of calculating value
under §§ 2311 and 641 are permissible only where market
value is not readily ascertainable. See Bigelow, 728 F.2d at
414; Drebin, 557 F.2d at 1331. Here, the government had evi-
dence of the petroglyphs’ market value but did not introduce
that evidence at trial.
We recognize that for theft offenses involving “archaeolog-
ical resources,” the Sentencing Guidelines impose an
enhancement that is tied to “archaeological value,” irrespec-
tive of whether the government obtains the conviction under
§ 641 or ARPA. See U.S.S.G. app. C, amend. 638; U.S.S.G.
§§ 2B1.1(c)(4), 2B1.5(b)(1) & cmt. n.1(C), n.2(A)(i),
n.2(C)(i). But the Sentencing Guidelines do not apply until
the government secures a conviction under a statute such as
§ 641 in accordance with the statutory terms.
The government’s choice not to introduce any evidence of
“value” within the meaning of § 641 unfortunately leaves us
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little choice. It is clear that Ligon and Mizell stole the petro-
glyphs. It is equally clear that the petroglyphs had a market
value, as evidenced by Bahti’s report. But the government did
not introduce that report into evidence, or indeed anything
else that might have served as evidence of “value” within the
meaning of § 641, although it obviously could have done so.
We therefore are constrained to reverse the district court’s
denial of the defendants’ Rule 29(c) motions.
Conclusion
[6] “Archaeological value,” as that term is used in 16
U.S.C. §§ 470ee(d) and 470ff(a)(2)(A), and in the regulations
promulgated thereunder, does not come within the definition
of “value” as that term is used in 18 U.S.C. § 641. Because
the government introduced no evidence other than “archaeo-
logical value” to prove that Ligon and Mizell stole something
of “value” belonging to the government in violation of § 641,
the district court should have granted their motions for acquit-
tal.
REVERSED.
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