(dissenting).
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 he 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 wliat was in that package,” his failure to disclaim such knowledge is enough, in my opinion, to justify the inference that he did know.
On Reargument.
FRANK, Circuit Judge.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 *598that explanation the verdict would have stood. Andrews v. United States, 5 Cir., 157 F.2d 723, 724.1 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.
Of course, we disregard the defendant’s failure to take the stand; we may, indeed, as Judge Hand suggests,1a 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.2 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.3
We see nothing improper in the judge’s charge.
Affirmed.
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.
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.