United States v. Olbres

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2123

UNITED STATES OF AMERICA,

Appellant,

v.

ANTHONY G. OLBRES and SHIRLEY A. OLBRES,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Karen Quesnel, Attorney, Tax Division, United States Dep't

of Justice, with whom Loretta C. Argrett, Assistant Attorney

General, Robert E. Lindsay and Alan Hechtkopf, Attorneys, Tax

Division, and Paul M. Gagnon, United States Attorney, were on

brief, for the United States.
Terry Philip Segal, with whom Matthew H. Feinberg, Matthew

A. Kamholtz, Segal & Feinberg, Steven M. Gordon, and Shaheen,

Cappiello, Stein & Gordon were on joint brief, for appellees.

July 26, 1995

SELYA, Circuit Judge. In 1989, an employee of the
SELYA, Circuit Judge.

Internal Revenue Service (IRS) noticed a Rolls Royce belonging to

the defendants, Anthony and Shirley Olbres, parked outside a

restaurant in Exeter, New Hampshire. The presence of so opulent

a vehicle in so bucolic a setting piqued the taxman's interest.

He initiated an investigation that led, in succession, to an

audit, an indictment, a trial, and a conviction for income tax

evasion pursuant to a jury verdict.1 The district court then

trumped the jury's verdict, granting the defendants' motions for

judgments of acquittal. See United States v. Olbres, Cr. No. 93-

27-1-2-M (D.N.H. Sept. 30, 1994) (D. Ct. Op.).2 The government

appeals. We reinstate the convictions.

I. BACKGROUND
I. BACKGROUND

We start by relating certain (essentially

uncontradicted) facts that serve to put the appeal into initial

perspective. In 1974, the Olbreses he an industrial designer,

she a schoolteacher destined to become a self-taught bookkeeper

launched a proprietorship, Design Consultants (DC), to conceive,

construct, and erect exhibit booths for trade shows. At first,

1The statute of conviction provides in relevant part:

Any person who willfully attempts in any
manner to evade or defeat any tax imposed by
[the Internal Revenue Code] or the payment
thereof shall, in addition to other penalties
provided by law, be guilty of a felony . . .

26 U.S.C. 7201 (1988).

2Although the district court's thoughtful opinion is
unpublished, the interested reader can locate it at 1994 WL
543520.

2

the proprietors comprised the entire work force. The business

grew steadily, and by 1987 DC employed 23 persons and had

revenues in excess of $1,900,000. Despite the phenomenal growth

of the business, Shirley Olbres continued to handle the books,

toiling part-time, mostly at home. Her working materials

consisted of an invoice log (in which she recorded bills sent and

payments received), and three journals reflecting, respectively,

cash receipts, cash disbursements, and petty cash.

Beginning in 1976, the defendants retained the services

of an accountant, Wilson Dennett. Dennett compiled income tax

returns and financial statements, but did not perform bookkeeping

or kindred services. He prepared the tax returns in reliance on

information supplied by the defendants. For the tax year at

issue on this appeal 1987 Shirley Olbres drafted a summary of

the defendants' books and records for Dennett's use. She and her

husband then met with Dennett to answer questions. When Dennett

completed the return, the defendants came to his office and

signed it.

The defendants maintained various bank accounts during

1987. These included business checking and savings accounts at

Indian Head Bank (IHB). Defendants deposited most of their

business receipts into the business checking account, but

occasionally deposited business receipts into the business

savings account. While Shirley Olbres recorded all sums

deposited into the business checking account in the cash receipts

journal, she did not make comparable entries showing deposits

3

made to the business savings account. During the same time

frame, the defendants also maintained payroll and petty cash

accounts at a second bank, and a rent-receipts account in the

name of Seabrook Properties at yet a third financial institution.

The IRS started its investigation into the defendants'

tax returns in 1989. Revenue Agent Leonard Kaply pulled the

laboring oar. He determined, inter alia, that the defendants had

substantially underreported their income on their joint federal

income tax returns for the years 1986 through 1988. For 1987,

Kaply's audit indicated that the defendants had failed to report

nearly $750,000 in income from three sources: (1) business

receipts deposited directly into the business savings account and

not recorded in the cash receipts journal; (2) rebates from a

transportation company that had contracted with DC to move trade

show booths from place to place;3 and (3) certain income from

rental property. In the course of the audit, the defendants gave

Agent Kaply the cash receipts journal, but claimed to have

misplaced the invoice log and the passbook for the business

savings account (either of which would have revealed much of the

unreported income). It was only when the IRS issued a summons to

IHB that it discovered the business savings account, with its

trove of unreported funds.

The IRS concluded that the defendants willfully failed

3For no easily explicable reason, these rebates had been
deposited into the Seabrook Properties account, omitted from the
summary prepared by Mrs. Olbres for Dennett's use, and not
mentioned in the defendants' ensuing dialogue with Dennett.

4

to report substantial amounts of income on their 1986, 1987, and

1988 federal tax returns ($150,954 in 1986, $748,991 in 1987, and

$175,432 in 1988). The defendants conceded the underreporting,

but denied criminal responsibility, saying that they lacked any

intent to defraud.4 A federal grand jury returned a three-count

indictment charging the defendants with willfully attempting to

evade income tax for those three years. The case was tried to a

jury. The defendants moved for judgments of acquittal at the end

of the government's case, and again when both sides had rested.

See Fed. R. Crim. P. 29(a). The district court denied the first

set of motions and reserved decision on the second set. See Fed.

R. Crim. P. 29(b). On January 24, 1994, the jury reached a split

decision: it found the defendants not guilty on count 1 (1986)

and count 3 (1988), but guilty on count 2 (1987).

After a gestation period of nearly nine months, the

district court, acting in pursuance of the earlier Rule 29(b)

reservation, granted the defendants' motions for judgments of

acquittal on count 2. The government then filed this timely

appeal.

II. ANALYSIS
II. ANALYSIS

Our analysis of this case is partitioned into three

segments. First, we limn the standard of review. Second, we

examine the elements of the offense of conviction and the

sufficiency of the evidence. Third, we explain why we find the

4The defendants placed much of the onus on their accountant,
Dennett, who died prior to the trial. For the most part, his
knowledge of the facts died with him.

5

district court's analysis unpersuasive.

A. Standard of Review.
A. Standard of Review.

Expressing the standard for judicial review of a claim

of evidentiary insufficiency in a criminal case is a

straightforward exercise. If the evidence presented, taken in

the light most flattering to the prosecution, together with all

reasonable inferences favorable to it, permits a rational jury to

find each essential element of the crime charged beyond a

reasonable doubt, then the evidence is legally sufficient. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Gifford, 17 F.3d 462, 467 (1st Cir. 1994); United States v.

Castro-Lara, 970 F.2d 976, 979 (1st Cir. 1992), cert. denied, 113

S. Ct. 2935 (1993). In evaluating sufficiency, both direct and

circumstantial evidence are accorded weight. See, e.g., United

States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). So long as

the evidence, taken as a whole, warrants a judgment of

conviction, "it need not rule out other hypotheses more congenial

to a finding of innocence." Gifford, 17 F.3d at 467.

When, as now, a criminal defendant mounts a sufficiency

challenge, all the evidence, direct and circumstantial, is to be

viewed from the government's coign of vantage. Thus, the trial

judge must resolve all evidentiary conflicts and credibility

questions in the prosecution's favor; and, moreover, as among

competing inferences, two or more of which are plausible, the

judge must choose the inference that best fits the prosecution's

theory of guilt. See United States v. Taylor, 54 F.3d 967, 974

6

(1st Cir. 1995); United States v. Rothrock, 806 F.2d 318, 320

(1st Cir. 1986).

The granting of a motion for judgment of acquittal is

subject to de novo review. See United States v. Kirvan, 997 F.2d

963, 967 (1st Cir. 1993). Like the trial court, "we scrutinize

the evidence in the light most compatible with the verdict,

resolve all credibility disputes in the verdict's favor, and then

reach a judgment about whether a rational jury could find guilt

beyond a reasonable doubt." Taylor, 54 F.3d at 974.

B. Sufficiency of the Evidence.
B. Sufficiency of the Evidence.

In this instance, our assignment is simplified.

Because the defendants do not dispute that they signed the 1987

tax return and that they substantially understated their income

in the process, the question of guilt reduces to whether the

underreporting occurred willfully, that is, whether it

constituted "a voluntary, intentional violation of a known legal

duty," United States v. Pomponio, 429 U.S. 10, 12 (1976) (per

curiam) (citations omitted). The trial focused on this narrow

issue. The government contended that the defendants deliberately

understated their 1987 income, while the defendants who claimed

to have signed the return without reading it contended that

they were guilty only of inadvertence, aggravated by the hiring

of a maladroit accountant.

In a tax evasion case in which the defendants assert

that blind reliance on their accountant, not criminal intent,

caused an underreporting, the critical datum is not whether the

7

defendants ordered the accountant to falsify the return, but,

rather, whether the defendants knew when they signed the return

that it understated their income. See Rothrock, 806 F.2d at 321.

So here: if the evidence introduced at trial, taken in a pro-

government light, permitted the jury to infer that the defendants

(a) were aware of the contents of their return, and (b) knew that

their reportable income significantly exceeded the income

reflected therein, then the jury lawfully could find that the

defendants acted willfully, and, hence, violated 26 U.S.C.

7201. See, e.g., United States v. Gaines, 690 F.2d 849, 855

(11th Cir. 1982). We turn to this two-part inquiry, and then

buttress the results with additional evidence of willfulness.

1. Knowledge of the Return's Contents. This facet of
1. Knowledge of the Return's Contents.

the inquiry need not occupy us for long. A jury may permissibly

infer that a taxpayer read his return and knew its contents from

the bare fact that he signed it. See United States v. Drape, 668

F.2d 22, 26 (1st Cir. 1982) (holding that the defendant's

signature on his return sufficed to establish knowledge of

incorrect contents); United States v. Romanow, 505 F.2d 813, 814

(1st Cir. 1974) (dismissing taxpayer's denial that he had read

tax form, and stating that "it is clear that a jury could

disbelieve him and conclude from nothing more than the presence

of his uncontested signature that he had in fact read" the

document).

Here, moreover, the jury had before it other

circumstantial evidence indicating that the defendants knew the

8

contents of their return. Dennett's wife, who worked with him,

testified that when Dennett prepared a tax return for signature,

the return was bundled into a packet with a cover sheet that

summarized its contents. The bottom portion of the cover sheet

contained the bill for the tax preparation services. The

defendants testified that it was their habit to go to Dennett's

office, sign the completed return, and pay the bill. The jury

could reasonably infer that, in order to have paid the

accountant's bill, the defendants must have read the portion of

the cover sheet that detailed the return's contents.

2. Knowledge of the Understatement. The most
2. Knowledge of the Understatement.

compelling proof that the defendants knew that the figure

reported on their 1987 return substantially understated their

true income is the product of simple arithmetic. Tama Mitchell,

a government witness, analyzed the defendants' 1987 return and

found that the disposable funds available to them in that year,

based on the information contained in the return, totalled

$24,695. Mitchell further testified that the defendants made

expenditures of more than $620,656 during the year.5 In the

same period, their overall savings increased by $334,003. After

subtracting net deposits of loan proceeds, Mitchell's analysis

demonstrated that the defendants' combined expenditures and

5Mitchell's computations did not include all the defendants'
annual expenditures, but established a baseline by concentrating
on major cash purchases during the year, e.g., an outlay of

$158,000 in June to purchase a Rolls Royce Corniche convertible;
an outlay of $32,450 in August to purchase a Range Rover; and an
infusion of roughly $140,000 to a brokerage account.

9

accretions to savings in 1987 exceeded the cash available to

them, according to their tax return, by $580,989.

To be sure, the evidence pertaining to the defendants'

lavish spending is circumstantial and suggestive, not direct and

irrefutable. Yet, the arithmetic furnishes a sturdy

infrastructure capable of supporting a reasonable inference that

the defendants must have been aware that their 1987 return

substantially underreported their income. See O'Brien, 14 F.3d

at 706-07 (holding that, despite an absence of direct evidence,

circumstantial evidence adequately supported jury's inference of

guilty knowledge in fraud case); Castro-Lara, 970 F.2d at 981

(explaining that "circumstantial evidence, in and of itself, is

often enough to ground a conviction"); United States v. Hurley,

957 F.2d 1, 4 (1st Cir.) (stating that, in proving tax evasion,

"the government [does] not need to show direct evidence of tax

motivation" so long as the jury has a sufficient circumstantial

basis for inferring willfulness), cert. denied, 113 S. Ct. 60

(1992). Even if one were to accept the defendants' self-serving

hypothesis that the accountant's incompetence sparked the myriad

misstatements embedded in the return, the jury could still

reasonably infer that, when the defendants signed the return,

they must have gained an awareness that the numbers could not

possibly be accurate. See Gaines, 690 F.2d at 855 (holding that

glaring inaccuracies in figures can support a reasonable

inference of knowledge); see also Drape, 668 F.2d at 26 ("Intent

may be established where a taxpayer `chooses to keep himself

10

uninformed as to the full extent that [the return] is

insufficient.'") (quoting Katz v. United States, 321 F.2d 7, 10

(1st Cir.), cert. denied, 375 U.S. 903 (1963)).

The proposition that the defendants knew their return

understated their income derives support from other evidence as

well. For example, during 1986, Anthony Olbres (who had

unrestricted access to DC's books and records) provided fiscal

and marketing information to Dennett so that the latter could

prepare a financial statement in connection with a prospective

sale of the business. When completed, the financial statement

projected 1987 revenues in the amount of $1,976,000. The

projection proved to be prophetic DC's actual 1987 gross

receipts totalled $2,014,059 but the defendants reported gross

receipts on the 1987 tax return in a far smaller amount

($1,265,069). Based on this progression of events, a rational

jury could plausibly infer that Anthony Olbres had sufficient

knowledge of DC's financial matters to recognize the huge

discrepancy between projected revenues and reported revenues, and

to appreciate the significance of the gap.6 Likewise, the jury

6The district court suggested that Anthony Olbres'
participation in the preparation of the 1987 projections tended
to be exculpatory rather than incriminatory, because it showed
that the defendants reposed great confidence in their accountant.
See D. Ct. Op. at 31. Though such an inference may be

permissible, it is not compelled; and, given the method of Rule
29, it is the jury's choice between alternative inferences, not
the trial judge's choice, that must control. See O'Brien, 14

F.3d at 707 (warning that judges must not "usurp the jury's
province" of choosing between alternative inferences); United

States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985)

(similar), cert. denied, 475 U.S. 1029 (1986).

11

could infer from Shirley Olbres' position as DC's bookkeeper that

she, too, must have recognized the massive understatement of

income.

3. Other Evidence of Willfulness. In this case, the
3. Other Evidence of Willfulness.

jury heard other evidence capable of supporting a permissible

inference that the defendants acted willfully in underreporting

their income. For one thing, the defendants themselves from time

to time bypassed their business checking account and deposited

substantial amounts of money (including approximately $145,000 in

payments from a single customer, Digital Equipment Corp.)

directly into their business savings account. They knew that

these payments constituted income, yet they neither recorded them

in the cash receipts journal nor reported them on their 1987 tax

return. To make matters worse, the two source materials that

most easily could have identified the unreported income the

invoice log and the passbook for the business savings account

were withheld from the defendants' accountant; and,

coincidentally, the same source materials conveniently

disappeared during the IRS audit.7 While the defendants

maintained other books and records from which the existence of

these funds could perhaps be gleaned, see D. Ct. Op. at 31, it is

readily evident that a jury plausibly could infer from these

facts that the defendants clumsily attempted to conceal income

7Joyce Wildes, a Dennett employee assigned to review the
defendants' taxes, testified that she was not provided with
either the log or the passbook, and Agent Kaply discovered the
existence of the business savings account only by obtaining
information directly from IHB.

12

from both their tax preparer and their government.

Of course, the defendants' counter-argument that the

evidence indicates nothing more than that they were remarkably

slipshod in their business practices is also plausible.

Withal, the option to choose between these inferences belonged to

the jury, not the judge, see United States v. Guerrero-Guerrero,

776 F.2d 1071, 1075 (1st Cir. 1985), cert. denied, 475 U.S. 1029

(1986), and the jury had a perfect right to reject the

defendants' counter-argument and draw the inference urged by the

government. See O'Brien, 14 F.3d at 707; United States v.

Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464

U.S. 855 (1983). After all, "if the evidence can be construed in

various reasonable alternatives, the jury is entitled to freely

choose from among them." United States v. Smith, 680 F.2d 255,

259 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983).

The evidence anent the defendants' income from rental

property also bolstered the inference of willfulness. During

1987, the defendants owned various properties and rented them to

tenants. In 1987, Johnson Matthey Catalog Company (J/M) rented

space from the defendants in Seabrook, New Hampshire, at a rate

of $48,000 per annum. J/M sent a $4,000 rent check to the

defendants' home every month. Shirley Olbres deposited each rent

check, when received, into the Seabrook Properties account.

Although J/M paid the full $48,000 during 1987, the defendants

informed Dennett that they had garnered only $30,000 in rental

income from all their real estate. Thus, their 1987 return

13

failed to include $18,000 from the avails of the J/M tenancy, and

also failed to include $3,890 in rental income referable to a

property known as "the barn." It is beyond serious question that

the defendants' action in pegging the J/M lease proceeds at

$30,000 in the summary they gave to their accountant, coupled

with their failure to list any rental income referable to the

barn, could ground the requisite inference of criminal intent.

We think, too, that the defendants' failure to report

sums received as rebates from Mayflower Transit Company

(Mayflower) gives rise to a founded inference of willfulness. DC

retained Mayflower to ferry exhibit booths to and from trade

shows. The contract between the parties stipulated that

Mayflower would furnish transportation services to DC at

customary tariff rates, but then remit 20% of the amounts

actually paid. The rebate would be calculated monthly, based on

payments from DC to Mayflower. Pursuant to this arrangement,

Mayflower remitted $96,671 in 1987, but, for some reason, failed

to issue a 1099 form memorializing the payments. The defendants

did not report any of this money as income on their 1987 return

(despite the fact that they deducted 100% of the tariff charges

that they paid in the first instance).

Shirley Olbres deposited each of the eleven rebate

checks that DC received from Mayflower during the year into the

Seabrook Properties account even though that account had no

direct connection with DC or its business. At trial, she

testified that she did not know that the rebates constituted

14

income. Her husband, however, admitted that he was aware of the

rebates' taxable character. We believe that, on this record, a

rational jury could infer that the concealment of the rebates

resulted not from ignorance or inadvertence but from a conscious

decision on the defendants' part to take criminal advantage of

Mayflower's failure to issue the required 1099 form.

4. Recapitulation. To sum up, the record, read
4. Recapitulation.

favorably to the verdict, supports the following findings: (1)

the defendants signed the 1987 tax return; (2) they knew the

contents of the return at the time they signed it, and they knew

that it significantly understated their taxable income; (3) they

knew their business had made substantially more money than the

return reflected; (4) they had received revenues during the tax

year which they knew were taxable, such as business receipts and

transportation rebates, yet they neither deposited those revenues

in the business checking account nor recorded their receipt in

the usual manner, but, instead, diverted the revenues to other

bank accounts; (5) they deliberately understated the amounts of

rental income received when transmitting data to their accountant

preliminary to the accountant's preparation of their tax return;

and (6) they withheld materials from the accountant (and, later,

from the IRS auditor) that would have pointed to the existence

and extent of the undeclared income. Notwithstanding the

defendants' denials and regardless of the exculpatory evidence

that lurked in the record, these findings enabled a rational jury

to conclude, beyond a reasonable doubt, that the defendants were

15

guilty of income tax evasion for the year 1987.

C. The Judgment of Acquittal.
C. The Judgment of Acquittal.

The district court, steadfast in its desire to ensure

the integrity of the reasonable doubt standard, undertook a

painstakingly thorough examination of the record. The court

conceded that the government's case was not "unpersuasive," D.

Ct. Op. at 35, that a jury "could rationally reach" the

conclusion that the defendants willfully attempted to defraud the

government in respect to their 1987 taxes, id., and that, if the

court were to determine the existence of willfulness by means of

a preponderance test, it would find for the government, see id.

at 37. Nevertheless, the court entered judgment notwithstanding

the verdict on the ground that the proof did not permit a

finding, beyond a reasonable doubt, that the defendants willfully

filed a false tax return. To the court's way of thinking, the

defendants had articulated a "hypothesis of innocence

(negligence, incompetence, inattention, and reasonable reliance

on the family's long-time certified public accountant) . . .

[that was] sufficiently reasonable and sufficiently strong and

sufficiently credible that a rational trier of fact . . . must

necessarily entertain a reasonable doubt about defendants' guilt

. . . ." Id. at 37-38.

Our independent review of the record convinces us that

the court, while giving lip service to the "viewpoint" principle

(which holds that the evidence must be viewed, for the purpose of

an acquittal motion, in the light most flattering to the

16

government), subverted the principle by isolating each piece of

evidence and determining whether that evidence, standing alone,

gave rise to a powerful enough inference of willfulness to allay

any reasonable doubt about the defendants' guilt. In the

bargain, the court appears to have misunderstood the interplay

between the viewpoint principle and the reasonable doubt

standard.

The lower court's handling of the rent-receipts

evidence illustrates our concerns. In discussing this evidence,

the court acknowledged that an inference adverse to the

defendants could rationally be drawn, but concluded that this

inference was not "of sufficient persuasive value to establish

[the defendants'] knowing intent to evade taxes, beyond a

reasonable doubt." D. Ct. Op. at 33. But few, if any,

circumstantial evidence cases can survive this sort of

balkanization. For purposes of Rule 29, a broader perspective

must be employed to gauge the prosecution's mettle. Under the

viewpoint principle, a jury charged with determining an accused's

guilt or innocence is entitled to consider the evidence as a

seamless whole. Jurors are "not required to examine the evidence

in isolation, for `individual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it. The sum

of an evidentiary presentation may well be greater than its

constituent parts.'" United States v. Ortiz, 966 F.2d 707, 711

(1st Cir. 1992) (quoting Bourjaily v. United States, 483 U.S.

171, 179-80 (1987)), cert. denied, 113 S. Ct. 1005 (1993). Here,

17

though no one piece of evidence laid bare the defendants' intent,

the aggregate evidence, taken most hospitably to the prosecution

(as the viewpoint principle demands), was equal to the task.

The lower court's treatment of the evidence anent

transportation rebates illustrates another (related) shortcoming

in the court's inchmeal approach to evidentiary sufficiency: the

court not only took each piece of evidence in isolation, but

weighed the several possible inferences associated with each

piece, and chose between them. Thus, while the judge

acknowledged that the jury could rationally infer criminal intent

in connection with Shirley Olbres' handling of the transportation

rebates,8 he posited that Mrs. Olbres, as an "unschooled lay

person," might well have misconstrued the rebates as something

other than income. D. Ct. Op. at 34. By umpiring the duel

between two competing inferences and declaring the winner on the

basis of which inference appeared more robust in his eyes, the

judge invaded the jury's province.

On a motion for judgment of acquittal unlike, say, on

a motion for a new trial9 it is for the jury, not the court,

to choose between conflicting inferences. In Jackson, the

Supreme Court stated that a court "faced with a record of

historical facts that supports conflicting inferences must

8The district court conceded that the evidence could sustain
an inference that Shirley Olbres knew the rebate checks were
taxable income, but attempted to hide them, thereby taking
advantage of Mayflower's failure to report the payments to the
IRS on the required form. See D. Ct. Op. at 34.

9The defendants did not move for a new trial in this case.

18

presume even if it does not affirmatively appear in the record

that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution." 443 U.S. at

326. Under this directive, the judge's failure to defer to the

permissible inference of willfulness arising out of, inter alia,

the defendants' failure to report the rebate checks constitutes

error.

There is still another aspect of the district court's

methodology that bears correction. In finding the proof

insufficient to convict, the court cited, and relied upon, a

statement to the effect "that if a hypothesis of innocence is

sufficiently reasonable and sufficiently strong, then a

reasonable trier of fact must necessarily entertain a reasonable

doubt." United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982)

(en banc) (Anderson, J., concurring) (internal citation and

quotation marks omitted), aff'd on other grounds, 462 U.S. 356

(1983). Even apart from a citation error,10 this stripped-down

formulation, without more, comprises a misleading statement of

the law. Its principal vice is that it is incomplete. The

quoted text fails to reflect a core element of the viewpoint

principle: the necessity of drawing inferences hospitable to the

government's theory of the case before judging the strength of

any proffered hypothesis of innocence. We explain briefly.

In analyzing a motion for judgment of acquittal, a

10The district court incorrectly attributed this language to
the Bell majority. See D. Ct. Op. at 20.

19

court is obliged to take, and then to scrutinize, a snapshot of

the case but, as we have made clear on other occasions,11 the

snapshot only can be taken after focusing the lens of inquiry at

an angle favorable to the prosecution. The district court

neglected this focus. It took the snapshot head-on (as a judge

would do if presiding over a bench trial). Consequently, the

court acknowledged that inferences of willfulness could plausibly

be drawn from much of the evidence, but, instead of crediting

those inferences and then confronting the question of evidentiary

sufficiency, the court simply placed the inculpatory inferences

on an equal footing with various exculpatory inferences and

proceeded to weigh this mixed bag. In other words, the court

neither deferred to the jury's presumed choice of alternative

inferences, see Jackson, 443 U.S. at 326, nor evaluated the

potency of the defendants' hypothesis of innocence in light of

those presumed choices. This improper focus emptied the

11See, e.g., United States v. Flores-Rivera, F.3d

(1st Cir. 1995) [No. 93-1558]:

[I]f the evidence viewed in the light most
favorable to the verdict gives equal or
nearly equal circumstantial support to a
theory of guilt and a theory of innocence of
the crime charged, this court must reverse
the conviction. This is so because . . .
where an equal or nearly equal theory of
guilt and a theory of evidence is supported
by the evidence viewed in the light most
favorable to the prosecution, a reasonable
jury must necessarily entertain a reasonable
doubt.

Id. at [slip op. at 5] (quoting United States v. Sanchez, 961

F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330 (1992)).

20

viewpoint principle of its essential meaning (causing the court

to usurp the jury's function) and produced a snapshot that

distorted, rather than accurately depicted, the Rule 29 record.

III. CONCLUSION
III. CONCLUSION

We need go no further. It is trite, but true, that a

court "ought not disturb, on the ground of insufficient evidence,

a jury verdict that is supported by a plausible rendition of the

record." Ortiz, 966 F.2d at 711. While there may well be cases

in which the government's proof founders in the "realm between

preponderance and `beyond reasonable doubt,'" D. Ct. Op. at 22,

see also Hon. Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U.

L. Rev. 979, 986-88 (1993) (criticizing the perceived

toothlessness of appellate application of the reasonable doubt

standard in review of evidentiary insufficiency claims), this

case is not of that genre. To the contrary, this case evokes our

frequently reiterated rule that:

[I]n a criminal case, "the evidence need not
preclude every reasonable hypothesis
inconsistent with guilt" in order to sustain
a conviction. It is enough that . . . a
rational jury could look objectively at the
proof and supportably conclude beyond
reasonable doubt that the defendant's guilt
had been established.

United States v. Ingraham, 832 F.2d 229, 239-40 (1st Cir. 1987)

(internal citation omitted), cert. denied, 486 U.S. 1009 (1988).

Because our perscrutation of the record convinces us that, in

mulling the issue of intent, the district court both misapplied

the appropriate legal standard and undervalued the force of the

government's overall proof, the judgment below must be

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Reversed.
Reversed.

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