Stolen Property

Stolen Property

Everything in the previous section concerned what the defendant did with the goods. The property element asks a different question about the goods themselves: what must they be, and what must already have happened to them, before dealing in them counts as receiving? Section 223.6(1) answers in two phrases. The goods must be "movable property of another," and they must be property that "has been stolen."¹

The first phrase fixes the kind of thing the offense protects. Movable property is property that can be carried or shifted from place to place, such as tools, jewelry, vehicles, and merchandise, and that is the sort of property that passes from hand to hand through a market in stolen goods. "Of another" means that someone other than the defendant holds the ownership interest, which is what makes the original taking a wrong against a particular person. The second phrase, "has been stolen," carries most of the analysis because it makes receiving depend on an earlier offense. Receiving is a follow-on crime: some other person must first have wrongfully taken the property from its owner, and the receiver enters afterward.

The reason for building the offense this way is that the receiver's culpability rests on dealing in goods that carry a taint the receiver knows about. That reasoning has two parts, and each part supports its own limit. First, there must be a real prior wrong against an owner, since without one nobody has been deprived and the receiver has nothing to help along. That limit raises the question of how broadly "stolen" reads, meaning which kinds of prior wrongs create the taint. Second, the taint must still be on the goods when the defendant acts. A defendant who deals in goods whose taint has been legally removed is no longer dealing in the product of a wrong, and the reason for punishing the receiver disappears with it. That limit raises the question of when stolen status ends. Because the earlier section showed that each act of receiving, retaining, or disposing is judged on its own, stolen status, like knowledge, is judged at the moment of the defendant's act.

The two sub-sections below take up the two limits in order. The first explains how widely "stolen" reaches and why the label survives a chain of transfers. The second explains how stolen status can end before the defendant acts, as when the police recover the goods and use them in an operation of their own.

What Counts as Stolen

The first limit on the property element asks which earlier wrongs put the taint on goods, and the answer is that the label reaches well past the narrow offense of larceny. The Code treats conduct denominated theft as a single offense, and an accusation of theft may be supported by proof that the conduct occurred in any manner that would be theft under the Article.³ That single offense gathers larceny, embezzlement, false pretenses, and related conduct, because the drafters took the position that thieves are equally dangerous and the harm equally serious no matter how the property was obtained, a position most modern theft statutes share.⁴ Property obtained by any of those manners is therefore property that "has been stolen" within § 223.6(1).⁵

The breadth follows from what makes receiving wrong. A receiver is culpable for dealing in goods that were wrongfully taken from an owner, and the owner is deprived in the same way whether a burglar carried the goods off, an employee diverted them, or a swindler talked the owner out of them. The receiver also gives the same help in each case, by turning the goods into cash for the person who took them and keeping the market for them open. A rule limited to larceny would make the receiver's liability depend on how the earlier offense was classified, a matter that changes neither the owner's loss nor the receiver's role, and the consolidated approach removes that dependence.

The same logic fixes the outer edge of the label. The Code names other routes into theft as well, such as keeping lost or mistakenly delivered property with purpose to deprive the owner after failing to take reasonable measures to restore it, and each route has its own elements, so a receiving analysis begins by confirming that the earlier conduct really was theft in some manner.⁶ Goods that no property offense ever touched are not stolen, however suspicious the circumstances of the sale.

The breadth also extends to the identity of the owner. United States v. Schultz was a federal prosecution under 18 U.S.C. § 2315 and not under the Code, so it illustrates how far the idea reaches and does not state the Code's wording. The indictment alleged that the defendant and others arranged to steal valuable ancient Egyptian artifacts and sell them in New York, and the defendant argued that Egyptian Law 117, which declares antiquities public property, was only a licensing and export regulation.⁷ The court rejected that characterization at the outset, because the law's own language asserts state ownership, bars private ownership and possession, and gives the state title, possession, and the right to transfer.⁸ That first inquiry shows what any stolen-goods theory needs before anything else: a genuine owner whose rights the earlier taking violated.

Goods keep the label when they change hands, and the reason lies in property law. A thief obtains no title to what he takes, and nobody can pass on more title than that person holds. O'Keeffe v. Snyder states the general rule for personal property: a bona fide purchaser, meaning a buyer who pays value in good faith without knowing that the seller lacks title, still acquires no title good against the true owner when the goods were taken by theft or other wrongful means.⁹ The rule has a long history, and the Uniform Commercial Code left it in place, because a purchaser of goods acquires the title the transferor had or had power to transfer and a thief has none to transfer.¹⁰ Title therefore stays with the owner through every later sale. At each stage the goods remain property of another that was wrongfully taken from that owner, which is exactly what the property element asks.

Two questions that sound alike are answered by different rules, and keeping them apart prevents the most common error here. The title rule decides who gets the goods, while the knowledge element decides who is guilty. When an owner and a good-faith buyer have both done nothing wrong, one of them must absorb the loss, and the rule places it on the buyer, who chose to deal with a seller who had nothing to sell, while the owner chose nothing. The criminal law asks a different question, namely what the defendant knew or believed at the moment of receiving, which later sections develop. Students go wrong when they treat loss of the goods as proof of guilt, because a buyer who surrenders a stolen item has suffered a civil result and commits no receiving without knowledge or belief that the item was stolen.¹¹

The label travels with the goods through every sale, though it can end before the defendant acts, as the next section explains. The property must also belong to "another," because ownership in someone other than the defendant is what makes the earlier taking a wrong that a receiver can help along, and the Code adds that it is no defense that the theft was from the actor's spouse, except that household and personal effects normally accessible to both spouses count only after the couple has ceased living together.¹²

When Stolen Status Ends

The previous section showed that stolen status follows the goods through every later sale. It does not follow them through every later event. Because the Code reaches property that has been stolen, the goods must carry that history at the moment the defendant receives, retains, or disposes of them.¹⁴ One common event erases the history: the police recover the goods, and the owner consents to their use as bait in an operation to catch a thief or a buyer. The reason lies in what the taint represents. Goods are tainted because an owner has been wrongfully deprived, and a receiver is culpable for helping the thief profit from that deprivation. Once the goods are back under the owner's control and are being offered with the owner's permission, no one is being deprived, so a buyer who takes them is not profiting anyone from a wrong against a victim. The completed offense has lost its victim, even though the buyer's state of mind is as culpable as it ever was.

The standard illustration is the sting, and two decisions show how courts handle it. In People v. Jaffe the defendant tried to buy twenty yards of cloth that had been restored to its owners before the transaction and was offered to him by their authority and through their agency, and the prosecutor conceded at trial that the cloth had lost its character as stolen goods.¹⁵ The New York Court of Appeals reversed his conviction for attempted receiving. Its reasoning was that completing the purchase would have been no offense, because the statute required knowledge that the goods were stolen, and nobody can know that goods are stolen when they are not. Belief was not enough under that statute, and when everything the defendant intended to do would be lawful if finished, the court held, an attempt to do part of it cannot be a crime either.¹⁶

The California court in People v. Rojas met the same kind of trap from the other side. Hall had stolen $4,500 worth of electrical conduit and was arrested with it. From the police station he made monitored phone calls that produced a plan to leave a truck holding the conduit at a place the defendants designated, and one defendant drove the truck away and was arrested the next morning as he began to unload it.¹⁷ The defendants argued that the police had recovered the conduit, so it was no longer in a stolen condition when they took it. The state answered that the thief had stolen at the defendants' prearrangement as their agent, which would make receiving complete once the thief began carrying the goods toward them.¹⁸ The court did not sustain a conviction for the completed offense. It modified the finding of guilt to a finding that the defendants were guilty of attempting to receive stolen property.¹⁹

The two decisions line up on the main point, because neither convicts the buyer of the completed offense. They part on what is left. Jaffe treats the defendant's mistaken belief as legally empty, since the act he meant to carry out would have been no crime. Rojas reaches attempt after acknowledging that the rule of Jaffe has drawn much criticism, and it holds that defendants who set out to take goods they believed stolen are guilty of attempting to receive them.²⁰ The split is a disagreement about impossibility in attempt law, a subject taught elsewhere, and the modern statutory trend runs toward the Rojas result. New York itself later revised its penal law so that factual or legal impossibility is no defense to attempt if the crime could have been committed had the circumstances been as the defendant believed them to be.²¹ For receiving, the safe exam answer is to deny the completed offense and then raise attempt as the fallback.

The sting also shows why the property element, and not the mental-state element, does the work. The Code lets belief that goods are probably stolen stand in for knowledge, so the sting buyer's state of mind may satisfy the mental element. The property element asks about the goods rather than the defendant, and it requires property that has in fact been stolen.²² Students lose this issue when they let the defendant's belief fill the gap, because a belief about the goods cannot restore a status the goods no longer have.