                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2003

USA v. Pritchard
Precedential or Non-Precedential: Precedential

Docket No. 02-2544




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                       PRECEDENTIAL

                               Filed October 17, 2003

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 02-2544


        UNITED STATES OF AMERICA
                      v.
           RUSS PRITCHARD, JR.,
                         Appellant

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
       D.C. Criminal No. 01-cr-00147-03
          (Honorable Petrese B. Tucker)

            Argued June 16, 2003
 Before: SCIRICA, Chief Judge, NYGAARD and
           BECKER, Circuit Judges

           (Filed: October 17, 2003)
               THOMAS A. BERGSTROM, ESQUIRE
                (ARGUED)
               138 Davis Road
               Malvern, Pennsylvania 19355
                 Attorney for Appellant
               ROBERT E. GOLDMAN, ESQUIRE
                (ARGUED)
               Office of United States Attorney
               504 West Hamilton Street
               Allentown, Pennsylvania 18101
                 Attorney for Appellee
                                    2



                    OPINION OF THE COURT

SCIRICA, Chief Judge.
  Defendant Russ Pritchard, Jr. was convicted of theft from
a museum for his involvement in the misappropriation of a
Civil War officer’s uniform in violation of 18 U.S.C. § 668
(1994). At issue is whether the Hunt-Phelan Home
Foundation, from whose care the uniform was taken, was
a “museum” for purposes of the statute.1

                                    I.
   The Hunt-Phelan Home enjoys a colorful history of
regional and national significance. Located on historic Beale
Street in Memphis, Tennessee, the Hunt-Phelan Home was
built between 1828 and 1832 by Ellis Moore Driver. The
five-bedroom, 8,500 square foot antebellum mansion was
designed in the federal style by Robert Mills, an architect
well-known for his design of the Washington Monument,
the U.S. Treasury Building, and parts of the White House.
The Hunt-Phelan Home and its surrounding grounds
contained many novel features for the time, including a gas
plant for interior illumination, a hot air furnace, and the
first swimming pool in Memphis. Bricks for its five-brick
thick walls were pressed and dried in the front yard.
  The house passed to Driver’s daughter, who married
William R. Hunt, a Lieutenant Colonel in the Confederate
Army. When the Union army took control of Memphis,

1. We exercise jurisdiction over a final decision of a district court under
28 U.S.C. § 1291. We review the sufficiency of the evidence “in the light
most favorable to the government, and will sustain the verdict if any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Hodge, 321 F.3d 429, 439
(3d Cir. 2003) (citing United States v. Smith, 294 F.3d 473, 478 (3d Cir.
2002)). We will exercise plenary review over issues of statutory
interpretation. Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir. 2003). A
plenary standard also applies to our review of jury instructions where
their interpretation turns on a matter of statutory construction. United
States v. Schneider, 14 F.3d 876, 878 (3d Cir. 1994).
                             3


General Ulysses S. Grant established his headquarters in
the house, and used its library as his personal office. The
library’s original inlaid parquet floors remain in excellent
condition, in part because General Grant apparently
required his soldiers to remove their boots before entering
the room. After the war, the house returned to the control
of the Hunt family, and later passed to their daughter, Julia
Hunt, who married Colonel Phelan.
  Over the years, the house remained an important
residence and icon of antebellum architecture in Memphis,
with prominent visitors including Confederate General
Nathan Bedford Forrest, Confederate President Jefferson
Davis and President Andrew Jackson. When many of the
historic mansions on Beale Street were demolished as part
of an urban renewal project, the Hunt-Phelan Home was
saved from destruction by order of President Lyndon
Johnson. It survives today as perhaps the last of the great
mansions of Beale Street.
   The Hunt-Phelan Home was passed to successive family
members and was inherited—along with its contents—by
William B. Day, Jr. in 1992. When Day inherited the house,
it was “packed to the rafters” with historical items from
generations of family members, many of which dated back
to the Civil War and earlier. To make way for major
renovations to the house, Day packed up its contents into
fourteen forty-five foot trucks, and shipped the items to an
offsite warehouse to be inventoried and cataloged.
  Later that year, Day formed the Hunt-Phelan Home
Foundation, a Tennessee non-profit corporation, to preserve
the property and to operate it as a tourist attraction. The
Foundation received funding from, among others, the City
of Memphis and Federal Express, a Memphis corporation.
Day placed the Hunt-Phelan Home under the Foundation.
In 1995, the Foundation entered into an agreement with
Elvis Presley Enterprises, the operator of Graceland, to
operate and manage the home as a tourist attraction. The
house was opened to the public on a regular basis in 1996
with paid and volunteer staff providing walking tours and
facilitating special events, such as weddings. By that time,
the house was fully restored to approximate its condition in
1858. Many of the items previously removed were placed on
                              4


display in the house, including several antebellum furniture
pieces and thousands of books dating back as far as 1720.
The remaining items—still owned by Day—were placed in a
warehouse under the care and custody of the Foundation
and Elvis Presley Enterprises.
   In addition to other uses, the Foundation operated the
Hunt-Phelan Home for educational purposes. Day and his
sister, a teacher, joined with local school boards to develop
a Civil War history curriculum and provided local teachers
with a lesson plan for use during class trips to the home.
  In 1996, Day contacted defendant Russ Pritchard, Jr. to
assist him in evaluating and assessing several of the
objects associated with the house. Pritchard, Jr. was the
former curator of the Civil War Library and Museum in
Philadelphia and a distant family member of Day. In the fall
of 1996, Pritchard, Jr. traveled to Memphis to help
determine which items should be exhibited in the house,
with a special focus on Civil War-era military uniforms and
objects. Pritchard, Jr. selected two Civil War uniforms,
including Lieutenant Colonel Hunt’s officer’s frock coat and
pants, to be taken back to Pennsylvania for authentication.
   After a period of time during which Day heard nothing
from Pritchard, Jr., Day contacted him about the items,
including the Hunt uniform. Pritchard, Jr. informed Day
that the Hunt uniform was only a costume, and that he
had donated it to Goodwill. Day grew suspicious of this
explanation after seeing what he thought was the Hunt
uniform for sale on the internet, and caused a federal
investigation to be initiated. The investigation revealed that
Pritchard, Jr. and his son, Russ Pritchard, III, had taken
the uniform to be authenticated by a textile expert before
displaying it at the Gettysburg Civil War collectors show in
1997. In early 1998, Pritchard, III, sold the uniform to a
collector in Georgia for $45,000. The collector then sold the
Hunt uniform to another dealer for $51,800, who sold it to
the State Museum of Tennessee for $67,500.
   In May 2000, the Hunt-Phelan Home closed as a tourist
attraction after the Elvis Presley Enterprises withdrew from
its agreement to operate and manage the house.
                               5


  On May 17, 2001, a federal grand jury returned twenty-
two-count indictments against both Pritchard, Jr. and
Pritchard, III. Pritchard, III, ultimately entered a guilty plea,
while Pritchard, Jr. proceeded to trial. A jury found
Pritchard, Jr. guilty of two counts, one for theft of an object
of cultural heritage from a museum in violation of 18
U.S.C. § 668, and one for aiding and abetting. The District
Court granted a motion for judgment of acquittal for the
aiding and abetting count. Pritchard, Jr. appeals his
conviction for theft from a museum.

                               II.

                               A.
   Pritchard, Jr. was convicted by the jury of having stolen
or obtained by fraud “from the care, custody, or control of
a museum [an] object of cultural heritage.” 18 U.S.C.
§ 668(b)(1). An “object of cultural heritage” is “an object that
is: (A) over 100 years old and worth in excess of $5,000; or
(B) worth at least $100,000.” § 668(a)(2). There is no
dispute that the Hunt uniform is an object of cultural
heritage, or that Pritchard, Jr. stole or obtained the uniform
by fraud. Rather, Pritchard, Jr. contends his conviction
under 18 U.S.C. § 668 was contrary to law because the
Hunt-Phelan Home Foundation does not meet the statutory
definition of a “museum.”

                               B.
  The statute defines a museum as:
    an organized and permanent institution, the activities
    of which affect interstate or foreign commerce, that—
    (A)   is situated in the United States;
    (B) is established for an essentially educational or
    aesthetic purpose;
    (C)   has a professional staff; and
    (D) owns, utilizes, and cares for tangible objects that
    are exhibited to the public on a regular schedule.
                                    6


18 U.S.C. § 668(a)(1).
  Pritchard, Jr. argues that the Hunt-Phelan Home
Foundation is not a “museum” within the meaning of the
statute. Pritchard, Jr. contends the fact the Foundation
went out of business four years after it opened its doors
suggests it was not a “permanent institution.” We find this
argument unconvincing. It is clear that the permanence
requirement must be viewed as one of intent rather than as
one of success. That a museum does not survive to trial
cannot realistically be understood to deprive it of having
been a museum during the time it was open. And, in this
sense, the jury could properly conclude the Foundation was
established to be a permanent institution.
   The Oxford English Dictionary defines permanent as
“continuing or designed to continue indefinitely without
change.” 2 Oxford English Dictionary 710 (compact edition
1987).2 In accord with this definition, the statute’s
legislative history, albeit limited, suggests that its drafters
meant to protect museums—both old and new—established
with the intent to continue indefinitely. When proposing the
amendment that would become the Theft From Museum
statute, Senator Kennedy noted the growing art theft
epidemic had forced museums “to undertake expensive
measures to protect their treasures, and the burden is
equally great on smaller and less established museums and
galleries.” 137 Cong. Rec. S9088 (June 28, 1991)
(statement of Sen. Kennedy). At the time the Hunt uniform
was stolen, the Hunt-Phelan Home Foundation was
undoubtedly in its infancy. But the record contains
powerful indicia of intent to establish the Foundation as a
permanent institution—to wit, the Foundation filed a
nonprofit corporate charter, assembled an advisory board of

2. Other dictionaries similarly define the term to include the concept of
intent. See, e.g., Random House Dictionary of English Language 1442
(2d ed. 1987) (“intended to exist or function for a long, indefinite period
without regard to unforeseeable conditions”); Webster’s Third New
International Dictionary 1683 (1993) (“fixed, or intended to be fixed”);
Webster’s New World Dictionary of the American Language 1059 (2d ed.
1972) (“lasting or intended to last indefinitely without change”); 1 The
New Century Dictionary 1285 (1942) (“[l]asting or intended to last
indefinitely”).
                                     7


leading Memphis scholars, secured grants and donations
from the City of Memphis, prominent local corporations and
individual donors, contracted with Elvis Presley Enterprises
to manage the house, and hired museum staff. While the
Foundation only survived a few years, it had the
characteristics of a permanent repository for works of
historical and cultural significance.
  With respect to the remaining elements of the statute,
there is little question that the Foundation is situated in
the United States or that the Foundation engaged in
activities which affect interstate commerce.3 Nor is there a
real question that the jury was provided with sufficient
evidence to find that the Foundation employed a
professional staff to run the Hunt-Phelan Home and that
the Foundation was established for an “essentially
educational or aesthetic purpose.”4
  The crucial question, therefore, is whether the
government met its burden of establishing that the
Foundation “own[ed], utilize[d], and care[d] for tangible
objects that are exhibited to the public on a regular
schedule.” 18 U.S.C. § 668(a)(1)(D). Congress drafted the
definition of “museum” in the conjunctive, which requires
that a museum satisfy each of three independent
conditions: (1) ownership; (2) use; and (3) care of tangible
objects. It is undisputed that the Hunt-Phelan Home
Foundation owned, used and cared for the house, and that

3. Among other bases for this conclusion, the Hunt-Phelan Home was a
tourist attraction that drew visitors from around the country. See Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (holding
regulation of motels serving interstate travelers acceptable regulation of
interstate commerce).
4. Pritchard, Jr. contends the predominant activities of the Foundation
were “commercial in nature” and indicate the museum was not
established for “essentially educational or artistic purpose.” At trial, the
jury rejected the argument that the Foundation was essentially a
commercial enterprise created by Day to benefit from the tax-exempt
status of the nonprofit form. The record contains sufficient evidence for
a rational trier of fact to conclude that the various weddings and parties
hosted at the Hunt-Phelan Home merely provided a means to defray the
costs of running the property, and did not compromise the essentially
educational or artistic purpose of the Foundation.
                                   8


the house was exhibited to the public on a regular basis.
But there is nothing in the record that shows any of the
objects displayed in the house were owned by the
Foundation or anyone other than Day himself.
   Most museums own some, if not most, of the objects
within their collections. However, as the government
suggests, requiring that a “museum” own all of the objects
it displays would place many of the country’s greatest art
museums outside the protection of the statute.5 For
example, a strict ownership requirement would exclude
“museums” created by individuals to house their private
collections—like the Phillips Collection or the original
Whitney Museum—at least as long as the collection
remained in the hands of a private owner. Most would view
these institutions as museums whether or not the donor
families owned the objects displayed, or whether they had
transferred title to the objects to an independent entity.
  Indeed, it appears that Congress had this precise
scenario in mind when it originally crafted § 668. What
would become § 668 was originally introduced as an
amendment to the Violent Crime Control Act in 1991 by
Senator Edward Kennedy, together with Senator Orrin
Hatch. 137 Cong. Rec. S9087 (June 28, 1991). The
amendment was offered, at least in part, in response to the
infamous multi-million dollar theft from the Isabella Stuart
Gardner Museum in Boston.6 When Senator Kennedy

5. The American Association of Museums has recognized the important
role museums play not only in collecting and caring for objects of
cultural significance, but also in displaying objects on loan from other
institutions or individuals. “Since no single museum contains, or could
contain, all objects of admiration and understanding, museums have
traditionally exhibited not only objects from their own collections but
also objects borrowed from other museums and from private individuals
and organizations. Borrowing objects allows museums to provide more
comprehensive exhibits and to make objects more accessible that would
otherwise be seen by only a few.” See American Association of Museums,
Guidelines on Exhibiting Borrowed Objects, at http://www.aam-us.org
(last visited Sept. 5, 2003).
6. The Isabella Stuart Gardner Museum art heist is as well-known as it
is tragic. In the early hours of March 18, 1990, two unknown robbers
                                  9


offered the amendment, he placed into the record several
news accounts of the theft from the Gardner Museum. Id.
at S9088-90. Congress enacted the amendment section in
substantially similar form in 1994. Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. No. 103-322,
108 Stat. 1796 (1994). Isabella Stuart Gardner created the
museum in 1903 to display her personal art collection, and
operated the museum herself for a number of years. It
would be surprising if the statute did not include
independent institutions, like the Gardner Museum,
founded by a single individual whose collections partially
consist (or consisted) of that person’s private collection.
  On the other hand, the government’s interpretation is in
tension with the plain language of the statute, which
requires that the institution itself own, utilize, and care for
exhibited objects. And because this is a criminal statute, we
would be reluctant to adopt an interpretation that was
broader than the plain language suggests. “[T]he canon of
strict construction of criminal statutes, or rule of lenity,
ensures fair warning by so resolving ambiguity in a
criminal statute as to apply it only to conduct clearly
covered.” United States v. Lanier, 520 U.S. 259, 266 (1997).
   The ownership requirement may serve important
purposes. Congress may have wanted to distinguish
“museums” from exhibition spaces or wholly personal
collections in private homes. Whether or not a person opens
his personal art collection to the public, a few paintings in
a private living room surely do not constitute a “museum”.
When a person creates an independent institution to
exhibit his own personal collection, a policymaker could
conceivably think it better to treat an unlawful taking of
exhibited objects as theft from the owner himself, and not
from a museum. Drawing lines that define “museum” is a

dressed as Boston policemen entered the museum claiming they were
responding to a call of disturbance. After duping the on-duty security
guards, it took the thieves little more than an hour to remove thirteen
irreplaceable works of art from Fenway Court, including Vermeer’s The
Concert (1658-1660), Rembrandt’s The Storm on the Sea of Galilee
(1633), and five works by Degas. The Gardner Museum robbery — the
costliest art theft in United States history — remains unsolved.
                              10


difficult task. Requiring that the institution own some of
the objects it displays is one way of differentiating a
museum from other institutions which display objects of
cultural heritage. It ensures that the institution
independently possesses all of the features of a museum,
whether or not some of the objects it exhibits are owned by
other individuals or entities. Whether or not the statute’s
definition best captures our ordinary sense of what a
museum is in all cases, this interpretation would seem to
represent a reasonable attempt to delineate a class of
institutions as museums—theft from which subjects
defendants to federal criminal prosecution.
   In any event, we find it unnecessary to resolve this
difficult interpretive issue. While there is no evidence in the
record that the Foundation owned any of the objects within
the house, the Hunt-Phelan Home Foundation owned the
house itself. And the house is clearly an object of great
historical and aesthetic significance. Indeed, it was
arguably the primary exhibit on the property. The
significance of the Foundation, and the “cultural heritage”
of the various objects and exhibits it displayed, are
integrally tied to the Hunt-Phelan Home. Day collaborated
with scholars, the City of Memphis, the Memphis Arts
Council and private donors to create a Foundation that
displayed “a portrait of life of a family through generations
in the South.” The canvas for this portrait is the Hunt-
Phelan Home. The gas chandelier that hangs in the parlor
would, of course, be an interesting bauble, entombed in a
glass case and paired with a well-crafted informational
placard. But how much more significant for the student of
history to view that same lamp dangling from its original
moorings in the ornate parlor ceiling and imagining how its
incandescent glow might have illuminated the tapestry
screens or the wax makeup of newly-arrived house guests.
Likewise, the near-perfect parquet floor would hang nicely
along a narrow and austere hallway, cut into discrete
sections and perfectly positioned to allow passers-by to
study the intricate details of its craftsmanship. But better
still to walk to the transom of the library and hear General
Grant barking at Union army lieutenants to deposit their
leather boots outside the door before discussing troop
arrangements for the Battle of Vicksburg. Demanding that
                              11


the Foundation own something more discrete than the
house—a table, a chair, the Hunt uniform—ignores the
obvious fact that the objects within the home draw much of
their cultural and historical significance from their
association with the house itself.
   We believe that ownership of the house contributed to the
Foundation’s independent existence as a cultural,
educational, and aesthetic institution. Because the
Foundation owned, utilized and cared for the Hunt-Phelan
Home and other historic structures on the property which
it exhibited to the public on a regular schedule, the Hunt-
Phelan Home Foundation is a “museum” within the
meaning of the statute.

                             III.
   Because the Hunt-Phelan Home Foundation was a
museum, the wrongful taking of an object under its “care,
custody, or control” is theft from a museum, no matter who
owns the object taken. The statute does not require the
stolen object to be owned by the museum itself. One
violates the statute by unlawfully taking an object of
cultural heritage from the “care, custody, or control” of a
museum, regardless of its actual owner. The taking of a Fra
Angelico or a Leonardo on loan from another collection to
the Philadelphia Museum of Art would clearly amount to
theft from a museum. Stated differently, the ownership
requirement applies to the definition of “museum,” not to
the stolen object. Once it is established that an institution
is a museum, any object of cultural heritage stolen from the
museum’s “care, custody, or control” will give rise to
criminal liability under § 668.
   There is ample evidence in the record to support a
finding that the Hunt uniform was under the care, custody,
and control of the museum when misappropriated.
Accordingly, we will affirm the judgment of conviction.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
