Second Circuit Reverses Another Conspiracy Conviction for Lack of Knowledge and Intent

Conspiracy convictions have been taking a beating lately in the Second Circuit, see here (Murray Law LLC’s own case) and here and United States v. Al-Moayad, 2008 WL 4443841 (2d Cir. October 2, 2008), which I hope to blog about shortly.  Earlier this week, in United States v. Ogando, 2008 WL 4614661 (2d Cir. October 20, 2008), the Court reversed another drug conspiracy conviction for insufficient evidence that the defendant knew the person he was picking up at the airport was bringing in drugs (a reversal that sadly occurred after the defendant had served his 30-month prison sentence).  Today, in United States v. Kapelioujnyj, 07-3353-cr (2d Cir. October 22, 2008), the Court reversed a conviction for conspiracy to sell stolen property, namely a Stradivarius violin that was later determined to be fake.  The Court concluded that there was insufficient evidence that the defendant, Adam Potocki, both believed that the violin was worth at least $5,000 and had conspired to sell property that had traveled in interstate commerce. 

Holding

As to value, the Court pointed out that the government had proved merely that Potocki hoped or speculated that the violin was genuine and therefore worth at least the statutory amount, rather than that he actually believed this to be the case.   As to the interstate element, the government had failed to show that the particular conspiracy Potocki had joined contained an interstate element.  That element existed in another overlapping conspiracy involving the same violin and a co-conspirator, but Potocki was unaware of this second conspiracy and his conspiracy was not “interrelated with” nor “mutually dependent” on it, so as to impute its interstate element to his.  “Unknowing parallel action is not enough to establish membership in a conspiracy.” 

Judge Calabresi’s Dubitante Concurrence

What is most intriguing about the case is Judge Calabresi's concurrence, in which he raises the prospect of determining the value element of the charged crime using expectancy value theory (a first, as far as I know, in a reported criminal case).  He opines that Potocki could have attributed a value of at least $5,000 to the violin regardless of whether it was genuine as follows: since the evidence showed Potocki believed a genuine Stradivarius could fetch $1.5 million and assuming he held out a 1 in 100 hope that the violin was in fact genuine, then the expected value to him would still be $15,000, well over the statutory amount.  (Even if all of that may be true, would Potocki have paid $15,000 for the violin prior to appraisal?)  In any event, Judge Calabresi concludes the Court was not wrong to reject this approach since the government had not adduced any evidence in support of it, but finds the question “puzzling” enough to mark his concurrence dubitante. 

Hmmm, that’s just what we need in criminal trials – a bunch of psychologists opining as to the defendant’s belief using expectancy-value theory.