United States v. Ellicott

HAYNSWORTH, Circuit Judge

(dissenting) .

The Court, it seems to me, applies an erroneous standard of review, though the words it employs are generally in keeping with the correct principles.

Proof of fraudulent transactions was clear and convincing, but the offenses proven are cognizable only in the state courts, unless the proof shows resort to the mails in furtherance of their accomplishment. It is with respect to the mailings as charged in the indictment that the Court finds the evidence insufficient to support the findings of the District Judge.

Evidence of the mailings, in each instance, was largely circumstantial, but that is not to disparage it, for circumstantial evidence is frequently much more reliable than direct testimonial versions of observations of a witness months or years before he is called upon to recall and recite them. Nevertheless, it was once widely thought that circumstantiall evidence in a criminal case would be insufficient to support a judgment of conviction, unless it foreclosed every reasonable hypothesis consistent with innocence. Happily, that notion was laid to rest by the Supreme Court in 1954.1 We, of course, follow the rules laid down by the Supreme Court in Holland and permit fact finders' in criminal cases to draw such reasonable inferences as the circumstantial evidence may support, notwithstanding the fact that some other trier permissibly might draw a conflicting inference from the same evidence.2

*873This means, of course, that the jury-may act upon the basis of reasonable probabilities arising from circumstantial evidence. To say that the evidence created only a probability of mailing, therefore, is not to answer the question.

Adverting briefly and illustratively to the act of mailing charged in the second count, the Government’s evidence of the practice of time-date stamping material received by mail seems to me clearly, and alone unequivocally, to warrant a finding that the letter and the charter application were received by mail on the Monday morning following the Friday upon which the letter was dated. The underpinnings of the circumstantial proof of the mailing were attacked by the presentation of evidence of the test, in which a document was delivered by hand on a Friday, late in the afternoon, and was actually processed through the automatic time-date machine. It was done so promptly, however, and was properly stamped as having been received on that Friday afternoon. Evidence of this test indicates that the proven custom of using the electric machine only on matter received by mail was not invariable, but it neither shatters the Government’s proof nor requires its rejection. It seems to me only to reduce the degree of the Government’s proof from overwhelmingly compelling to permissive. Proof of this test, it should be noted, does not support the self-serving testimonial denials of Jones. It would have done so had the test paper been time-dated on the following Monday morning, but it was not. If meticulousness in a public office of that sort is required in connection with any aspect of its work, it is in respect to the proper notation of the date and time of the receipt of such documents.

Proof of the test, therefore, shows only, so far as appears on this record, one extraordinary departure from the practice shown by the Government’s proof of the processing on the electric time-dating machine only of material received by mail. Occasional or infrequent departures from the proven practice do not destroy the value of the proof of the practice. Evidence of the test does not tend to prove in any way that the paper was received earlier than Monday morning, and, to that extent, cannot support the claim of Jones that it was delivered by hand on Friday.

Analysis of the evidence bearing upon the other mailing charged in the indictment leads me to a similar conclusion. That evidence created a factual issue which the trier-of-fact resolved. That was his province, not ours.

In a criminal case, a finding of guilt can rest only upon proof beyond a reasonable doubt. The rule, however, does not require the members of this Court to be convinced beyond a reasonable doubt of the guilt of the defendants. The judgment we exercise cannot be subjective. Whether or not we entertain doubts, grave or small, we are required to affirm if there is substantial evidence in the case which, if accepted by the fact finder, would justify a conclusion by a reasonable judge or jury that the defendant was guilty beyond a reasonable doubt. In approaching our task, moreover, we are' required to largely disregard conflicting evidence, for, in appraising the sufficiency of proof to support the finding of guilt, we must look at it in the light most favorable to the finding and, therefore, to the Government.

These principles are well established.3

This ease was tried to the Court without a jury. He was entitled to disbelieve Jones’ self-serving testimony that he delivered the papers by hand rather than by mail. He was entitled to accept the Government's circumstantial evidence as establishing an invariable, or substantially invariable, practice of time-date stamping documents with an electric machine *874only when received by mail and the invariable practice of time-date stamping every document on the date upon which it was received. Thus viewed in the light most favorable to the Government, as we must now view the evidence, I think the proof quite sufficient to authorize this thoroughly reasonable Judge to conclude beyond a reasonable doubt that the mailing in fact occurred as charged.

The Court takes note of the principles governing our review, but, it seems to me, it departs from them in their application or it ignores the teaching of the .Supreme Court in Holland, noted above, that a jury is entitled to convict on the basis of probabilities arising out of circumstantial evidence.

Because I think the findings of the District Judge should be accepted, I respectfully dissent.

. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150.

. See White v. United States, 4 Cir., 279 F.2d 740, 748; United States v. Lawren-son, 4 Cir., 298 F.2d 880; Milanovich v. United States, 4 Cir., 275 F.2d 716, rev’d on other grounds, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773.

. Bell v. United States, 4 Cir., 185 F.2d 302. See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 LEd. 680; Stoppelli v. United States, 9 Cir., 183 F.2d 391; United States v. Brown, 2 Cir., 236 F.2d 403; Williams v. United States, 4 Cir., 271 F.2d 703; Crawley v. United States, 4 Cir., 268 F.2d 808; White v. United States, 4 Cir., 279 F.2d 740.