Opinion
No. 30, Docket 20283.
October 31, 1946. On Reargument January 10, 1947. Writ of Certiorari Denied March 17, 1947. See 67 S.Ct. 979.
Appeal from the District Court of the United States for the Southern District of New York.
Samuel Allen, alias Harry Phillips, alias Sam Adesska, was convicted of having in his possession counterfeit red ration stamps, and he appeals.
Judgment affirmed.
Defendant was tried pursuant to an information charging him with "unlawfully, wilfully and knowingly," having in his possession 106,128 counterfeit red ration stamps in violation of Appendix, Title 50 U.S.C.A. § 633, subdivision 5, and sections 2.5 and 2.6 of General Ration Order No. 8.
This section reads:
"Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."
General Ration Order No. 8 provides:
"Sec. 2.5. Acquisition, use, transfer or possession of counterfeited or forged ration document. (a) No person shall acquire, use, permit the use of, transfer, possess or control any counterfeited or forged ration document under circumstances which would be in violation of section 2.6 if the document were genuine or if he knows or has reason to believe that it is counterfeited or forged.
"Sec. 2.6. Acquisition, use, transfer or possession of ration document. No person shall acquire, use, permit the use of, transfer, possess or control a ration document except the person or the agent of the person to whom such ration document was issued or by whom it was acquired in accordance with a ration order or except as otherwise provided by a ration order."
At the trial, two New York City detectives, Dalton and Epstein, appearing as government witnesses, testified as follows: In the discharge of their duties, they searched a hotel room registered in the name of defendant Allen and his wife. Defendant was then present. The detectives found in a closet a brief case bearing defendant's initials. Epstein opened the brief case and found two packages wrapped in brown paper. He opened one of the packages and found it to contain the ration-stamps named in the information.
On cross-examination, Epstein gave the following testimony:
"Q. Did you ask Allen as to where he got these stamps? A. I did.
"Q. What did he say to you? A. He said they were left there by a friend.
"Q. They were left there by a friend? A. That is right.
"Q. Did he claim to own them? A. He did not claim to own these stamps, no.
"Q. Did he ever say to you that he knew anything at all about them, other than the fact that they were left there? A. He said they were left there by a Mr. Frank.
"Q. Mr. Frank. Did you ask him who Mr. Frank was? A. I did.
"Q. What did he tell you? A. He said he did not know where Mr. Frank was or where he could be located.
"Q. At that time? A. That is right.
"Q. But there is no question about the fact that at no time during the conversation that you had with him relative to these stamps did he claim to own them, is that right? A. That is true.
"Q. And if they were in that room and in his possession, they were there because they were left there by a Mr. Frank, is that right? A. That is what he said.
"Q. That is what he said. Were the packages as you first saw them sealed? A. They were not sealed; they were wrapped around with string.
"Q. Wrapped around with string? A. That is correct.
"Q. And did you ask Allen whether they were then in the same condition that they were when he received them? A. I did not.
"Q. In any event, he never claimed to own these things, and never claimed to know what was in that package, is that right? A. That is correct."
On re-direct, Epstein testified as follows:
"Q. Detective, you testified on cross-examination that the defendant, Mr. Allen, told you that he had received these or this package — the packages had been left by a Mr. Frank? A. That is correct."
On direct examination, Dalton testified as follows:
"Q. And was there any conversation about the stamps? A. Detective Epstein asked Allen where he had gotten the stamps, and Allen said he got them from a man by the name of Mr. Frank. Detective Epstein asked him who Mr. Frank was and he said he did not know his last name."
On cross-examination, he said:
"Q. Were you there when Detective Epstein found this briefcase? A. I was.
"Q. Was it closed? A. It was.
"Q. And on the inside of it there was a package, is that right? A. That is right.
"Q. That package, when you first saw it, was wrapped and tied, wasn't it? A. It was wrapped in brown paper.
"Q. Wrapped in brown paper; nothing to indicate what was in the package from the outside wrapping, is that right? A. That is right.
"Q. Now, when Detective Epstein opened it up, he first opened the briefcase and then opened the package, isn't that so? A. That is right.
"Q. When he opened the package did he ask Allen whether those articles contained in that brown package belonged to him? A. He asked — he did not ask that question, he asked, when he found they were stamps, he said, `Where did you get these stamps?'
"Q. Well, what did Allen say? A. Allen said he got them from a man by the name of Mr. Frank.
"Q. Did he say that a man by the name of Mr. Frank had left that package with him? A. He did not; he said he got them from a man by the name of Mr. Frank. Now Detective Epstein tore the paper and there were the stamps.
"Q. That is right. A. And then he asked him, `Where did you get these stamps?' and he said `I got them from a man by the name of Mr. Frank.'
"Q. Did he say that he knew what was in that package before Detective Epstein opened it? Yes or no. A. He did not ask him that question. He asked —
"Q. Did he say anything which would indicate that he knew what was in that package either before or after Detective Epstein opened it? Yes or no. A. Yes. He said, when he showed him the stamps, that he got those stamps from a man by the name of Mr. Frank, when Epstein tore the paper apart.
"Q. Did Allen ever claim to own those stamps? Yes or no. A. Not in my presence, he didn't.
"Q. Isn't it a fact that Allen said to Detective Epstein `This package was left with me by a man by the name of Mr. Frank'? A. He did not.
"Q. Yes or no. A. He did not.
"Q. Well, suppose I tell you that that substantially is the testimony of Detective Epstein. Do you still say that there was no such conversation? A. I say there was no conversation of that sort.
"Q. No. Well, that is an answer. But at any time did Allen claim that he knew what was in that package? A. He was not asked that question by Detective Epstein.
"Q. Did he say anything which would indicate that he knew what was in that package before Epstein opened it? Yes or no. A. He did not, no."
There was no further testimony concerning defendant's possession of the stamps. Evidence was offered showing that they were counterfeit, but the government did not endeavor to prove that defendant knew this fact.
Defendant, at the close of the government's case, moved to dismiss, and renewed the motion at the close of the entire case. After the jury returned a verdict finding defendant guilty, defendant moved to set aside the verdict. The judge, having denied this motion, sentenced defendant to one year's imprisonment and fined him $2,500, to stand committed until payment of such fine. Defendant appeals.
John F.X. McGohey, of New York City (Thomas F. Murphy, Thomas F. Burchill, Jr., and Bruno Schachner, all of New York City, of counsel), for plaintiff-appellee.
Goldstein Goldstein, of New York City (David Goldstein and Lawrence Kovalsky, both of New York City, of counsel), for defendant-appellant.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
Without doubt, there was sufficient evidence (1) that defendant knowingly had possession of the package and (2) that the package contained the stamps. But more was essential: The defendant could not be convicted absent evidence that he knew the contents of the package. In that respect the evidence was insufficient.
True, Epstein testified that he asked Allen "where he got these stamps," and that Allen "said they were left there by a friend." True, too, Dalton testified that, after the package was opened, "Epstein showed [Allen] the stamps" and that Allen then said "he got those stamps" from Frank. But neither Epstein nor Dalton purported to be reporting Allen's statements verbatim nor in their entirety. And, in the light of (1) Epstein's testimony that Allen "never claimed to know what was in that package" and (2) Dalton's testimony that Allen did not "say anything which would indicate that he knew what was in the package before Epstein opened it," we think their testimony concerning Allen's statement cannot reasonably be taken to mean more than that the package, with contents unknown to him, had been given to him by Frank.
It is suggested that, had defendant been unaware that the package contained stamps, he would surely have shown surprise when Epstein opened it. But the government did not ask these witnesses to — and, to repeat, they did not — testify as to all the defendant said and did at the time. For all we know, he may have manifested such surprise. Absent any evidence on the subject, there was nothing from which the jury could reasonably infer that he did not. The burden was on the government to offer evidence of that fact, not on the defendant to disprove it.
As, then, there was no evidence that Allen knew that he had stamps in his possession, the judge should have granted Allen's motion to set aside the verdict.
Reversed.
On Reargument.
On our own motion we directed reargument, as a result of which a majority of the court has concluded that our original decision was wrong for the following reasons:
Had the defendant remained silent when questioned by the detectives, there would have been nothing for the jury on the issue of his knowledge of the contents of the package. But the detectives testified that defendant gave an explanation of a kind which the jury may reasonably have believed to be so fishy as to show, by the mere telling of it, a guilty knowledge of what was inside the paper parcel found in defendant's brief-case. We think it clear that if defendant had testified to that explanation the verdict would have stood. Andrews v. United States, 5 Cir., 157 F.2d 723, 724. We consider it a distinction without a difference that the jury learned of this tale through the testimony of the detectives, since it was within the jury's province to believe them.
See also, e.g., Wilson v. United States, 162 U.S. 613, 621, 16 S.Ct. 895, 40 L.Ed. 1090; Wigmore, Evidence, 3rd Ed., §§ 173, 273, 278.
Of course, we disregard the defendant's failure to take the stand; we may, indeed, as Judge Hand suggests, consider the case as if the ancient rule still prevailed under which he would have been denied the right to do so. Thus considered, we have here a case of a verdict which, as to a crucial element of the crime, rests on indirect evidence of the sort called "circumstantial." To sustain verdicts thus grounded may, we recognize, lead at times to the conviction of innocent persons. Defendant's story may have been true; for it is not inconceivable that a man might accept custody of a package, contents unknown from a casual acquaintance. But the undoubtedly grave problem of providing adequate safeguards against convictions of the innocent must be solved in some way other than that of refusing to allow reasonable inferences to be made.
See infra.
See Borchard, Convicting the Innocent (1933).
The writer of this opinion has often expressed his concern with that problem and has suggested some safeguards. See e.g. dissenting opinions in the following cases: United States v. Antonelli Fireworks, 2 Cir., 155 F.2d 631, 642; United States v. Ebeling, 2 Cir., 146 F.2d 254, 257, 258; United States v. St. Pierre, 2 Cir., 132 F.2d 837, 840 at page 849 note 40, last paragraph, 147 A.L.R. 240.
The defendant who fears that a jury may be untrained in drawing inferences can waive trial by jury. Under the new Rules of Criminal Procedure, 18 U.S.C.A. following section 687, he can then procure special findings of fact from the judge.
We see nothing improper in the judge's charge.
Affirmed.
I think the judgment should be affirmed. The judge charged that "If the jury is uncertain as to whether the defendant knowingly had in his possession the ration stamps in question, their verdict must be not guilty." Their verdict shows that they resolved that issue against him. And rightly so, for the jury could properly infer from the testimony that Allen knew the contents of the package in his brief case before it was unwrapped by Detective Epstein. If he had then first learned that the package contained thousands of ration stamps, it is incredible that when asked "where he got these stamps" he would have replied merely that "they were left there by a friend." If ignorant of what the packages contained he would naturally have denied his knowledge of their contents or at least have said something to indicate that the disclosure of the stamps caused him surprise. Nothing of the sort appears from his conversation as reported by the detectives. Although Epstein testified that Allen "never claimed to know what was in that package," his failure to disclaim such knowledge is enough, in my opinion, to justify the inference that he did know.
I have little doubt in fact that Allen knew that the contents of his brief case was ration stamps; but my chief reasons for thinking so are that the police were after him — though on another matter — and that he did not take the stand. These two circumstances are cogent evidences of guilt, but we should not rely upon either; we must decide the case as though someone, who was not engaged in searching for evidences of crime, had turned up the ration stamps in Allen's brief case by accident, or while looking for something lost; and as though the law still forbad an accused to testify in his own behalf, as it used to do. After we have stripped away these telling details, we have left nothing except that the stamps were found secreted, and that Allen said that a man named "Frank" asked leave of him to secrete them with him. I quite agree that this was basis enough for an inference that Allen knew that what "Frank" wished to conceal was contraband of some sort; but that is not enough, unless it was sufficient basis for further inference that he knew that the contraband was ration stamps. I do not think that it will serve for this second inference. If Allen's explanation was so absurd on its face as to be an obvious fabrication, then it would be enough, for it is always permissible to infer guilt from the concoction of an evasion. But the story does not appear to me to be a sham on its face; I do not think it preposterous to suppose that a man might consent, without inquiry as to just what the contraband was, to let an acquaintance use his closet and his brief case to hide it away. Innocent people often to that extent indulge those who are not their intimates, and who are scarcely more than acquaintances: it is enough that in so doing they may help another in a hard spot; to inquire about just what that spot is is "to consider too curiously." As for not knowing "Frank's" surname, half the population of the United States at least under the age of forty appear to know each other only by their given name. United States v. Picarelli need not trouble us. Ward, the accused, there took the stand, and the jury could judge the truth of his story by more than its words. Not so here, where they had nothing to go by but its inherent plausibility.
2 Cir., 148 F.2d 997.