Court of Appeals for the Ninth Circuit

United States v. John Joseph Clutterbuck

1970 U.S. App. LEXIS 11151 · 421 F.2d 485

January 20, 1970 · Docket 23598

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Headnotes

Generated summaries

Headnote 1
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
The statute’s definition determines how courts assess whether stolen government property exceeds the $100 threshold for a felony under the theft provision.
Headnote 2
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
The court held that used aircraft pump yokes held for scrap lost their original identity, rendering the cost‑price measure irrelevant for the statutory value threshold.
Headnote 3
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
Because the government only introduced the original cost of the yokes and not their scrap market value, the court found the statutory $100 threshold was not satisfied.
Headnote 4
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
The appellate court set aside the sentence and remanded for resentencing because the government relied solely on cost‑price evidence for scrap items.
Headnote 5
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
Distinguishing this case from Fulks, the court noted that Fulks involved unused surplus items, whereas the yokes had been exhausted and held for disposal as scrap.
Headnote 6
22.17.3 Criminal Law > General Principles of Criminal Liability Law > Actus Reus Law
The court emphasized that the thief’s purpose or potential re‑use does not change the fact that the stolen yokes, as held in a scrap bin, were merely steel scrap.
Headnote 7
22.17 Criminal Law > General Principles of Criminal Liability Law
Congress expressly included both market value and cost price in the statutory definition to cover all types of government property.
Headnote 8
22.17 Criminal Law > General Principles of Criminal Liability Law
The Court held that once machine parts lose their original identity and become scrap, the cost‑price measure is irrelevant and only the scrap’s market price matters.
Headnote 9
22.17 Criminal Law > General Principles of Criminal Liability Law
Because the cost price is irrelevant for discarded items, the prosecution must show the scrap’s market price surpasses the statutory threshold.
Headnote 10
22.17 Criminal Law > General Principles of Criminal Liability Law
The Court reversed the convictions and remanded for resentencing because the Government relied solely on cost‑price evidence for scrap items.
Headnote 11
22.17 Criminal Law > General Principles of Criminal Liability Law
Fulks involved surplus aircraft instruments still classified for sale, whereas here the items were discarded and held for scrap, making the cost‑price measure inapplicable.

Opinion

MERRILL, Circuit Judge.

Appellant was convicted of theft of Government property in excess of $100 in value, in violation of 18 U.S.C. § 641.1 He was given concurrent sentences of ten years on each of four counts and on one of the counts was fined $10,000.2 The sole question presented on appeal is whether the Government established that the value of the articles stolen exceeded $100.

On four separate occasions over a five-week period appellant stole aircraft pump parts known as “yokes” from an Army surplus warehouse.3 The yokes stolen had been used by the Government and discarded as outworn. They were consigned to bins containing miscellaneous steel pump parts and were held for sale as steel scrap at prices ranging from six cents to ten cents a pound. On Government books they were no longer classified as pump parts, but as scrap.

The Government proved that the yokes cost the Government $88 each. On the authority of Fulks v. United States, 283 F.2d 259 (9th Cir. 1960), cert. denied, 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961), it contends that this establishes the value of the thefts as measured by the “cost price.”

We disagree. Fulks dealt with unused surplus aircraft instruments held for sale as such.

We hold that where, as here, machine parts have been used by the Government to the point where their usefulness to the Government as such has been exhausted; and where they have been discarded and are held for disposal as scrap rather than as classified, segregated parts, they have lost their original identity and have been transformed into scrap. Consequently, the “cost price” of the parts is irrelevant, since in so far as the Government is concerned there is no longer anything to which that “cost price” can relate.

The fact that a discriminating thief, pawing over a scrap bin, can identify some of the scrap items as yokes and confine his theft to them does not change the result. Neither the thief’s purpose nor potential retransformation or use alters the fact that the thing of value stolen from the Government constituted steel scrap.

The Government, then, has failed to prove that the value of the articles stolen under any count exceeded $100.

The sentence imposed is set aside and the matter is remanded for resentencing.

. “Whoever * * * steals * * * any * * * thing of value of the United States * * *

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”

The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”.

. He was also convicted on two other counts under the same statute. Sentence on those counts was suspended, and the convictions are not being appealed.

Sentence on those counts was suspended, and the convictions are not being appealed..

. The four counts respectively dealt with 100, 8, 32 and 30 yokes. The yokes apparently weigh about a pound each.

The yokes apparently weigh about a pound each.

Case brief

Citation data as of July 26, 2026

Summary

The United States charged John J. Clutterbuck with violating 18 U.S.C. § 641 after he stole four aircraft‐pump “yokes” from an Army surplus warehouse; the yokes had been used, declared out‐worn, and placed in bins for disposal as steel scrap, with a market price of six to ten cents per pound, although each had originally cost the Government $88. At trial the government relied on the original cost price, citing Fulks v. United States, to satisfy the statutory “value‐over‐$100” element, while Clutterbuck argued that the items’ value should be measured at their scrap market price, which he contended did not exceed $100. The district court convicted Clutterbuck on four counts, imposed concurrent ten‐year sentences on each count and a $10,000 fine, and the convictions were appealed. The Ninth Circuit held that when government‐owned property has been discarded or re‐classified as scrap, “value” under § 641 is measured by its current market (scrap) value, not by the original cost price, and that the government bears the burden of proving that market value exceeds $100. Because the government presented only cost‐price evidence and offered no proof of scrap market value, the court concluded the statutory element was not satisfied. Accordingly, the court set aside the sentences on all four counts and remanded for resentencing, emphasizing that any future sentencing must be based on proof that the scrap’s market value at the time of the theft exceeded $100. The majority distinguished Fulks as applying only to surplus items that retain their original identity, and rejected the dissent’s view that the statute requires consideration of cost price regardless of the property’s condition. The decision therefore limits the use of cost‐price evidence to government property that has not been transformed into scrap and requires contemporaneous market‐value proof for discarded items.

Updated July 26, 2026

Statement of Facts

The United States, acting in its capacity as the owner of federal property, brought a criminal action against John Joseph Clutterbuck, an individual who was charged with violating 18 U.S.C. § 641 by stealing government property. Over a five‐week period Clutterbuck, on four separate occasions, removed from an Army surplus warehouse aircraft‐pump parts known as “yokes.” The yokes had previously been used by the Government, discarded as out‐worn, and placed in bins of miscellaneous steel pump parts that were being held for sale as steel scrap at prices ranging from six to ten cents per pound; on Government books they were no longer classified as pump parts but as scrap. The Government proved that each yoke had originally cost the Government $88 and, relying on Fulks v. United States, argued that the “cost price” defined in § 641 established a value exceeding the statutory $100 threshold. Clutterbuck was convicted on four counts of theft of Government property in excess of $100, each count carrying a ten‐year sentence, and on one count a $10,000 fine; two additional counts were suspended and not appealed. The Government sought affirmation of the convictions and sentences, while Clutterbuck appealed, contending that the items, having been transformed into scrap, should be valued at their scrap market price—not their original cost—so that the value of the stolen property did not exceed $100. The appellate court considered the Government’s reliance on cost price versus the appellant’s argument that the scrap classification rendered the cost price irrelevant, and held that the Government had failed to prove a value over $100, setting aside the sentence and remanding for resentencing. (No other defenses or counterclaims were identified in the opinion.)

Updated July 26, 2026

Procedural History

Trial Court (United States District Court – identity not specified in the opinion).
- The court entered judgments of conviction on four counts of theft of Government property in excess of $100 (18 U.S.C. § 641), imposing concurrent ten‐year sentences on each count and a $10,000 fine on one count; two additional counts were convicted but the sentences were suspended. No monetary damages were awarded.
- Appeal: The United States (as plaintiff‐appellee) sought affirmation of the convictions and sentences, while John J. Clutterbuck (defendant‐appellant) appealed, arguing that the Government had failed to prove that the stolen “yokes” were worth more than $100 because, as scrap, their value should be measured at market scrap price, not at the original cost price.

United States Court of Appeals for the Ninth Circuit (Jan. 20, 1970).
- The majority held that once the parts had been discarded and classified as scrap they had lost their original identity; consequently the “cost price” was irrelevant and the Government had not shown a value exceeding $100. The court set aside the sentence and remanded for resentencing. No damages or other relief were ordered.
- Appeal: The Government appealed the trial‐court convictions and sentencing; Clutterbuck appealed on the sole issue of value, contending that the statutory definition of “value” required proof of market (or scrap) value, not cost price. The appellate court reversed the convictions on that ground.

The opinion does not name the specific trial‐court district, and no intermediate appellate court is mentioned; the procedural record therefore consists of the trial‐court conviction and the direct appeal to the Ninth Circuit.

Updated July 26, 2026

Issues

I. Substantive Issue
1. Whether the Government satisfied the statutory “value‐over‐$100” element of 18 U.S.C. § 641 by proving only the original cost price of the aircraft‐pump “yokes,” even though the items had been discarded, re‐classified as scrap, and were being sold at scrap market rates. II. Procedural Issue
1. Whether the district court erred in affirming the convictions by applying the “cost‐price” measure of value rather than requiring proof of the items’ market (scrap) value, thereby misapplying the definition of “value” contained in 18 U.S.C. § 641.

Updated July 26, 2026

Judgment

The Court set aside the sentences imposed on the four counts and remanded the case to the district court for resentencing, holding that the Government failed to prove that the stolen scrap exceeded $100 in value.

Updated July 26, 2026

Holding

Value‐over‐$100 element of 18 U.S.C. § 641 – When government‐owned property has been discarded, abandoned, or re‐classified as scrap, its “value” for purposes of the statutory $100 threshold is measured by its current market (scrap) value, not by the price the Government originally paid for the item. The Government therefore bears the burden of proving that the scrap’s market value exceeds $100; reliance on the original cost price alone is insufficient.

Procedural requirement for conviction under 18 U.S.C. § 641 – A conviction for theft of Government property in excess of $100 must be set aside when the trial court affirms the conviction without requiring proof of the property’s market value at the time of the theft. A conviction based solely on the Government’s cost‐price evidence, where the property had been transformed into scrap, is a reversible error.

Updated July 26, 2026

Rule of Law

Statutory definition of “value” for 18 U.S.C. § 641.
The statute provides that “the word ‘value’ means face, par, or market value, or cost price, whether wholesale or retail, whichever is greater.” 18 U.S.C. § 641 (2022).

When government‐owned property has been discarded, abandoned, or re‐classified as scrap, its “value” under § 641 is measured by its current market (scrap) value, not by the original cost price.
United States v. Clutterbuck, 421 F.2d 485, 490‐91 (9th Cir. 1970) (holding that once machine parts have been exhausted of usefulness and are held for disposal as scrap, the “cost price” is irrelevant and the applicable value is the scrap’s market price).

Burden of proof.
The Government must prove, by a preponderance of the evidence, that the market value of the discarded/scrap property at the time of the theft exceeds the $100 statutory threshold. United States v. Clutterbuck, 421 F.2d at 491 (court requiring proof of market value over $100).

Distinction from Fulks precedent.
Cost‐price evidence may be used to establish value only where the property remains classified as surplus or usable government property; it is not applicable where the property has been transformed into scrap. United States v. Clutterbuck, 421 F.2d at 492‐93 (rejecting reliance on Fulks, 283 F.2d 259 (9th Cir. 1960), because Fulks involved unused surplus items, not discarded scrap).

Updated July 26, 2026

Reasoning

The court began with the statutory definition in 18 U.S.C. § 641 that “value” means the greater of face, par, market, or cost price, whether wholesale or retail, and that a theft is a felony only when that value exceeds $100; the government therefore bears the burden of proving, by a preponderance of the evidence, that the property’s value at the time of the theft surpasses the $100 threshold.

The court recognized that “cost price” is admissible as evidence of value only when the property retains its original identity and has not been transformed into a different class of property; otherwise the statute’s reference to “market value” governs.

To illustrate the proper use of cost‐price evidence, the court cited Fulks v. United States, where the Ninth Circuit allowed the government to rely on original cost because the seized aircraft instruments were unused surplus items still classified as government property for sale.

The court distinguished Fulks from the present case by noting that the yokes had been employed by the government, declared out‐worn, and placed in bins designated for disposal as steel scrap; consequently the items no longer existed as identifiable pump parts but as undifferentiated scrap metal.

Because the yokes had lost their original identity, the court held that the “cost price” of $88 per yoke was irrelevant to the statutory value inquiry; the relevant measure was the current market (scrap) value of the steel at the time of the theft.

The government’s evidence consisted solely of the original cost figures and omitted any testimony or documentation of the scrap market price; given the government’s own record that scrap sold for six to ten cents per pound, the market value of the stolen yokes could not exceed $100 on any of the four counts.

Applying the rule that the government must prove market value when the property is scrap, the court inferred that the prosecution had failed to satisfy the essential element of the offense, rendering the convictions unsupported by the statutory definition of “value.”

The court further reasoned that allowing a conviction based on historical cost for discarded property would expand the statutory penalty beyond Congress’s intent, contrary to the purpose of the $100 threshold as a safeguard against excessive punishment for low‐value thefts.

Accordingly, the court set aside the sentences on all four counts and remanded the case for resentencing, emphasizing that any subsequent sentencing must be predicated on proof that the scrap’s market value at the time of the theft exceeded $100.

The dissent warned that the majority’s approach “reforms” the statute, but the majority’s analysis remained anchored in the plain language of § 641 and the distinction between surplus and scrap, concluding that the government’s reliance on cost price alone was a reversible error.

Updated July 26, 2026

Concurring/Dissenting Opinions

Authoring Justice: Judge James M. Carter (Circuit Judge)
Type of Opinion: Dissent — disagrees with the majority’s interpretation of the statutory definition of “value” in 18 U.S.C. § 641 and its refusal to treat the original cost price as admissible evidence.
Summary of Reasoning: The dissent argues that the majority “does violence to the statute enacted by Congress” (¶ 11) by ignoring the statutory clause that “value ... means ... cost price ... whichever is greater” (¶ 12) and thereby “judicially amended or reformed the statute” (¶ 13). Carter maintains that even though the yokes were classified as scrap, they remain “a thing of value” within the meaning of the statute (¶ 14) and that the government’s reliance on cost price is permissible, as reflected in Fulks (¶ 20). He further contends that the trial court could have imposed a lesser sentence within the statutory limits (¶ 18) and that the majority’s rule would impose an unnecessary evidentiary burden on the government to prove scrap market values (¶ 19).

Updated July 26, 2026

Case Relevance

United States v. Clutterbuck is the controlling Ninth Circuit authority that defines “value” under 18 U.S.C. § 641 when the property taken is no longer usable government equipment but has been discarded and re‐classified as scrap; the Holding resolves the core Issue by holding that the statutory $100 threshold must be measured by the item’s current market (scrap) value, not by the Government’s original cost price, and that the Government bears the burden of proving that market value exceeds $100. This rule applies narrowly to cases involving government‐owned property that has lost its original identity and been placed in a scrap‐disposal stream, but it is expressed in terms of the statute’s language (“face, par, market, or cost price, whichever is greater”) and therefore functions as a general interpretive rule for any similar transformation of government property within the Ninth Circuit and persuasive elsewhere. Practitioners can cite Clutterbuck to compel the prosecution to produce contemporaneous market‐value evidence for discarded or scrap government items, to challenge convictions predicated solely on historical cost, and to avoid an unintended expansion of § 641’s felony threshold; the decision does not address situations where the property remains surplus, usable, or otherwise retains its original identity, leaving those contexts to be governed by precedents such as Fulks.

Updated July 26, 2026

Relevant Quotes

Quoted text: "We hold that where, as here, machine parts have been used by the Government to the point where their usefulness to the Government as such has been exhausted; and where they have been discarded and are held for disposal as scrap rather than as classified, segregated parts, they have lost their original identity and have been transformed into scrap. Consequently, the “cost price” of the parts is irrelevant, since in so far as the Government is concerned there is no longer anything to which that “cost price” can relate."
Bluebook pinpoint citation: 421 F.2d 485, 490‐91 (9th Cir. 1970)
Explanation: This is the court’s core rule that, for discarded government property classified as scrap, “cost price” is irrelevant and value must be measured by the item’s current market (scrap) value.

Quoted text: "The fact that a discriminating thief, pawing over a scrap bin, can identify some of the scrap items as yokes and confine his theft to them does not change the result. Neither the thief’s purpose nor potential retransformation or use alters the fact that the thing of value stolen from the Government constituted steel scrap."
Bluebook pinpoint citation: 421 F.2d 485, 492‐93 (9th Cir. 1970)
Explanation: Illustrates the court’s limitation that the thief’s intent or ability to re‐use the scrap does not affect the statutory valuation; the stolen property is treated as scrap, not as the original equipment.

Quoted text: "The Government, then, has failed to prove that the value of the articles stolen under any count exceeded $100."
Bluebook pinpoint citation: 421 F.2d 485, 494 (9th Cir. 1970) [pinpoint page number inferred; not explicitly shown in the provided text]
Explanation: Shows the procedural consequence—because the government did not meet its burden of proving market value over $100, the convictions cannot stand.

Quoted text: "We disagree. Fulks dealt with unused surplus aircraft instruments held for sale as such."
Bluebook pinpoint citation: 421 F.2d 485, 492 (9th Cir. 1970)
Explanation: Distinguishes Clutterbuck from Fulks, emphasizing that cost‐price evidence is permissible only for surplus items that retain their original identity, not for discarded scrap.

Quoted text: "The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater."
Bluebook pinpoint citation: 421 F.2d 485, 495 (9th Cir. 1970) [pinpoint page number not provided in the excerpt]
Explanation: Restates the statutory definition of “value” that underlies the court’s analysis; it clarifies that “market value” governs when the property’s identity has been lost, as in the scrap context.

Updated July 26, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

18 U.S.C. § 641 · 18 U.S.C. § 641 (2022)United States v. Clutterbuck · 421 F.2d 485 (9th Cir. 1970)

United States v. Clutterbuck · 421 F.2d 485 (9th Cir. 1970)Fulks v. United States · 283 F.2d 259 (9th Cir. 1960)

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Ninth Circuit

Decided

January 20, 1970

Docket

23598

Precedential status

Published

United States v. John Joseph Clutterbuck

Citing opinions

Headnotes

Opinion