Sunday, October 26, 2008

A Crime of Violins

United States v. Sprysak, No. 07-3353-cr (2c Cir. October 22, 2008) (Newman, Calabresi, Parker, CJJ)

Adam Potocki was convicted of conspiracy to sell stolen property, a Stradivarius violin that was later determined to be fake. The court of appeals held that the evidence was insufficient on two elements: whether Potocki believed the violin was worth at least five thousand dollars, and whether the offense involved goods that moved in interstate commerce.


Potocki was an associate of Krzysztof Sprysak, who was part of a Brooklyn criminal gang known as the “Greenpoint Crew.” Sprysak called Potocki in December of 2005 to tell him that he might have a Stradivarius violin to sell. He said that the violin had been brought from Europe illegally and was stolen. Potocki agreed to show an antiques dealer a picture of the violin so that it could be appraised, and said that the dealer might be able to sell the violin as well.

In later conversations, Potocki said that the appraiser needed to see the violin itself, not just a photograph, because there are “many fakes.” In their final conversation, Potocki pressed Sprysak to bring the violin to him quickly. Nothing ever happened, and they never spoke about the violin again.

Unbeknownst to Potocki, Sprysak began looking into selling the violin through two other people, one of whom was an informant. In early 2006, the Sprysak and his new conspirators brought the violin from New Jersey to Manhattan to meet with an appraiser, who was actually and undercover detective. It was ultimately determined to be counterfeit, worth no more than one thousand dollars.


The court first held that the government failed to prove beyond a reasonable doubt that Potocki believed that the violin was worth at least five thousand dollars, a requirement of the statute, 18 U.S.C. § 2315. The conversations between Potocki and Sprysak only showed that Potocki “anxiously entertained the possibility” that the violin might be valuable, even as he noted that there were many counterfeit Strads. He never expressed a belief that the violin was both genuine and valuable; rather, he merely hoped that these would both be true. Potocki’s “serious questions” about the “provenance and value of the violin” meant that the government “failed to prove beyond a reasonable doubt Potocki’s belief that the instrument was worth at least five thousand dollars.”

The government also failed to prove the interstate commerce element of § 2315, which requires that the stolen goods must have “crossed a State or United States boundary after being stolen.” Here, the government attempted to satisfy this element by showing that the instrument had been brought from New Jersey to New York for the 2006 meeting. But there was no evidence that Potocki knew that the meeting occurred, let alone its background, participants or purpose.

Thus, there was no evidence that Potocki’s discussions with Sprysak months earlier were part of a broader “collective venture” to help Sprysak sell the violin in 2006. Rather, Sprysak abandoned the possibility of working with Potocki and “sought out other avenues to achieve a sale.” Thus, this was not a “classic conspiracy” - an “overarching illegal enterprise with multiple members and sustained, organized objectives.”


Judge Calabresi wrote a short opinion, concurring dubitante - which means, roughly, “doubting the correctness of the decision.” He felt that the evidence might reasonably show that Potocki attributed a value of more than $5000 to the violin since, “[e]ven if Potocki held only a 1 in 100 hope that the violin was a Stradivarius (which he told Sprysak, could fetch 1.5 million dollars), the expected value to him would still be $15,000, well above the $5000 required by the statute.” Since the government did not advocate this approach, however, the court was not really wrong to reject it, although he found the matter “a tad puzzling.”

Puzzling to this commentator is Judge Calabresi’s agreement with the majority - and the majority’s view itself - on the interstate commerce element. Here, the evidence was clear that when Sprysak first approached Potocki he told him that the violin had been brought from Europe and was stolen. Potocki must therefore have believed that the violin was stolen in Europe, then brought to the United States from there. This belief would seem to clearly satisfy the statute.

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