Tuesday, February 18, 2014

Only One Felony under 18 U.S.C. § 641 for Thefts that Total $1000+ in the Aggregate but <$1000 Each

Lagrone pleaded guilty to two counts of theft in violation of 18 U.S.C. § 641 for stealing $880 of stamps in each of two post offices.  Under § 641, when the aggregate value of the property in all counts for which the defendant is convicted in a single case does not exceed $1000, she faces misdemeanor penalties.  By pleading to two counts of theft of $880 each, the Government argued that Lagrone was guilty of two felonies and should be sentenced accordingly.  Lagrone argued that she could only be convicted of one felony since the neither count alone would be a felony. 

The panel addresses this question of statutory interpretation, finding that § 641 “permits aggregation under the [instant] facts . . . in order to charge a single felony, [but] it does not permit charging both offenses for which Lagrone was convicted as felonies.”  It reasons that the Government’s interpretation “permits retroactively changing the penalty for what would otherwise be misdemeanor offenses to penalties for felonies if they are charged in the same case as subsequent thefts that exceed $1000 in the aggregate.”  The case was vacated and remanded so that Lagrone could be resentenced for a single felony.

Note: The panel states that this conclusion comports with United States v. Reagan, 596 F.3d 251 (5th Cir. 2010), in which the Fifth Circuit held that the Government can prosecute under § 641 for each individual transaction.  Reagan was convicted of five counts of violating § 641 (for improperly receiving federal low-income housing rent subsidy program payments over a period of five years), but each count had a value exceeding $1000.  So, the aggregation clause interpreted in Lagrone was not at issue in Reagan.



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