United States v. Robie (166 F.3d 444, 1999)

SACK, Circuit Judge:

Clarence Robert Robie appeals from a judgment of conviction and sentence entered by the United States District Court for the Southern District of New York (Batts, J.) following a jury trial for theft of property made under contract for the United States worth more than $100 in violation of 18 U.S.C. § 641 and for interstate transportation of stolen property worth $5,000 or more in violation of 18 U.S.C. § 2314. He asserts that the evidence was insufficient to sustain his felony conviction under 18 U.S.C. § 641 because it did not establish beyond a reasonable doubt that the stolen property (i) was worth more than $100 and (ii) was “made under contract for the United States.” He also contends that his conduct did not violate 18 U.S.C. § 2314 because the government did not prove beyond a reasonable doubt that the property he transported across state lines was worth $5,000 or more. In the alternative, Robie asserts that his conduct fell within the “spurious representation” exception of section 2314. Finally, Robie contends that the district court miscalculated his offense level under section 2B1.1 of the United States Sentencing Guidelines. We disagree with all but the last assertion and therefore affirm except that we remand the case to the district court for resentencing.

BACKGROUND

Robie was charged under Count One of an indictment filed in February 1997 with “unlawfully, willfully, and knowingly ... embezzling], stealing], purloining] and knowingly converting] to his use and the use of another property made under contract for the United States and a department and agency thereof, to wit, ... approximately 160 Richard Nixon commemorative 32