Applying the Elements

Applying the Elements

Receiving problems arrive as a single story, and the elements taught in the earlier sections have to be pulled out of it in the right order. The text of Model Penal Code § 223.6(1) supplies that order. A person is guilty of theft if he purposely receives, retains, or disposes of movable property of another, knowing that it has been stolen or believing that it has probably been stolen, unless the property is received, retained, or disposed of with purpose to restore it to the owner, and receiving means acquiring possession, control, or title, or lending on the security of the property.¹ Read as a sequence, that sentence yields an act, an object, a mental state, and an exception, and the claim-of-right defense and the grading scale in § 223.1 follow them.² Running the inquiry in this order keeps attention on the actor's own conduct and state of mind at a particular moment, which prevents the mistake of inferring the mental element from the bare fact that the goods turned out to be stolen.

The order matters because each of the first four steps is judged at the time of the act identified in step one, and a no at any of them defeats liability for that act. Knowledge acquired afterward does not reach back to the original acquisition, although it can make a later keeping or passing on a new act with its own analysis. Students lose this issue when they test knowledge against the whole story rather than at the moment of the act. The base pattern below passes every step, and the variations that follow each change one fact to show which step then fails.

Step three is the one a prosecutor must build, because few receivers announce what they believe. Here the circumstances of the single transaction carry the proof: a price far under value, no paperwork, and a remark that points to theft. The Code asks what the actor actually knew or believed, so a suspicion that the goods might be stolen does not meet the element, and the fact that a reasonable person would have believed the goods stolen is only circumstantial evidence of what this actor believed. The same facts also settle step six, since the amount involved is the highest value, by any reasonable standard, of the property, and forty laptops clear the $500 line whatever the shop owner paid.⁷

The object element fails when one fact moves.

The offense requires property that is stolen when the actor acts, and goods the owner or the police have taken back have lost that character, whatever the buyer believes. In People v. Jaffe the cloth the defendant tried to buy had been restored to its owners and was offered to him by their authority, so it was no longer stolen property when he sought to buy it.⁸ The buyer in the variation is not necessarily free of liability, because factual impossibility is no defense to attempt under the Code, and an actor who believed the goods stolen would have committed the target offense had the facts been as believed.⁹ The right answer on an exam is therefore no completed receiving, with attempt flagged as the live question.

Timing of knowledge is a separate variable, and it exposes the difference between receiving and retaining.

The Code's verbs reach past the moment of acquisition, because it covers a person who purposely retains or disposes of the property as well as one who receives it.¹⁰ A formulation that asks only about knowledge at the time of acquisition would end the inquiry at the purchase, since someone who is handed stolen goods and learns the truth afterward did not know when the goods arrived. A complete answer under the Code addresses both acts: the purchase fails for want of knowledge, and the retention is the act on which liability can rest.

Where the transaction itself is ambiguous, the prosecution proves belief through other dealings, as in Huddleston v. United States, a federal prosecution that raises the same proof problem. Over 32,000 blank videocassettes had been stolen from a trailer, nobody disputed that the tapes Huddleston sold were stolen, and the only material issue was whether he knew it.¹¹ He told a store manager the tapes were not stolen, offered them in lots of at least 500 at $2.75 to $3 a tape against a manufacturing cost of $4.53, and testified that he had sold them on commission for a supplier who represented the goods as legitimate.¹² The government answered with other acts, namely televisions offered at $28 each with thousands more available and a truckload of appliances worth about $20,000 offered to an undercover agent for $8,000, and the jury was told to consider that evidence only on knowledge and not as proof of character.¹³ Such evidence works because it rebuts the innocent story. A retailer who claims not to know the goods were stolen can be confronted with other purchases from the same supplier under suspicious circumstances, such as a price far below market, a large volume, or delivery after hours, and the evidence is most probative when the defendant has put knowledge in dispute.¹⁴ The base pattern needed none of this because one transaction already pointed to theft, while Huddleston's plausible commission-seller account made the pattern across transactions the center of the case. A shop owner or other dealer also faces a presumption: the Code presumes knowledge or belief in specified circumstances, such as possession of property stolen from two or more persons on separate occasions or buying far below reasonable value, and the dealer may rebut it.

The exception in step four turns on the purpose with which the actor receives, retains, or disposes of the goods.

The reason follows from what the offense punishes. A receiver who buys to resell supplies the market that makes theft profitable, while a person who takes the goods in order to return them does the opposite and sends them back out of circulation. The exception also shows why the question is the buyer's purpose at the time of the act and not what happens to the goods later, since the Code withholds liability only for conduct undertaken with purpose to restore.¹⁵

The last two steps seldom change the outcome once the earlier ones are met, but each has defined content. The claim-of-right defense is affirmative and applies when the actor was unaware that the property was another's or acted under an honest claim of right to it, and it rarely helps a receiver who is found to have believed the goods probably stolen, since that belief is hard to reconcile with an honest claim to them.¹⁶ Grading then follows the three felony triggers of amount, kind of property, and a business in stolen goods. Receiving that meets none of them is a misdemeanor, with a petty-misdemeanor grade for small amounts that the actor proves.¹⁷