419 F.2d 1237 (9th Cir. 1969), 23039, United States v. Nelson

Docket Nº:23039.
Citation:419 F.2d 1237
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roy Arthur NELSON, Defendant-Appellant.
Case Date:November 20, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1237

419 F.2d 1237 (9th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,

v.

Roy Arthur NELSON, Defendant-Appellant.

No. 23039.

United States Court of Appeals, Ninth Circuit.

November 20, 1969

Page 1238

Victor V. Hoff (argued), Seattle, Wash., for appellant.

John M. Darrah (argued), Asst. U.S. Atty., Eugene G. Cushing, U.S. Atty., Seattle, Wash., for appellee.

Before HAMLIN, MERRILL, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge:

Roy Arthur Nelson and Frank Brewton were indicted for robbery of a federally-insured institution in violation of 18 U.S.C. § 2113(a) (1964). Brewton was found incompetent to stand trial. Nelson was tried separately and convicted. He has appealed on three grounds, all of which relate to the use of circumstantial evidence to secure his conviction.

The government offered direct evidence of the following facts. Brewton entered a bank and presented a teller with a written demand for money. The teller handed Brewton $627 in currency, including five marked $20 bills. Meanwhile, an unidentified person was observed sitting in a car in an adjacent parking lot, racing the engine. Brewton fled from the bank to the waiting car and entered on the passenger side. The car immediately sped away. Shortly thereafter, a police officer, alerted to these incidents, observed the car, with two male occupants, at an intersection some blocks away. The car fled. The officer pursued at high speed. After a chase the car slowed down, defendant alighted from the driver's side and ran, and was captured. Currency in the amount of $125 was taken from his person. The car, driverless, crashed into a tree. Brewton emerged from the wreck, and was arrested after attempting to conceal $502 in currency, including the marked bills taken from the bank, under an adjacent building. Ten to fifteen minutes elapsed between the robbery of the bank and defendant's flight from the car.

Defendant asserts that since he was charged as a principal in the bank robbery rather than as an accessory after the fact, the government was required to prove that he had actual knowledge that Brewton intended to rob the bank. We assume, arguendo, that proof of precisely that specific knowledge was required.

Defendant contended below, and in this court, that such proof was lacking. He argued that if such knowledge could be inferred at all, the inference must be based upon the prior inference that he was the man waiting in the car while the robbery occurred-- and such an 'inference upon an inference' was precluded by law. Further, he argued that even if the jury were permitted to infer that he knowingly acted as the 'get-away' driver,

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there was no evidence that he knew Brewton planned to commit a robbery, as distinguished from some other illegal act, or planned to rob the bank, and not one of the several stores and offices in the area, and that circumstantial evidence which does not 'exclude every hypothesis but that of guilt' is insufficient as a matter of law.

The court denied a motion for acquittal based on these grounds, and rejected proposed instructions embodying the theories that a conviction could not be based upon inferences drawn from other inferences, or upon circumstances 'which while consistent with guilt, are not inconsistent with innocence.'

The legal theories upon which defendant relies, although clearly wrong, are repeatedly asserted in the trial courts of this circuit and in fruitless appeals to this court. It would be a boon to both the parties and the courts if they could be laid finally to rest.

I

For at least a third of a century this court has rejected the notion that it is improper to infer a fact at issue from other facts which have been established by circumstantial evidence. E. K. Wood Lumber Co. v. Andersen, 81 F.2d 161, 166 (9th Cir. 1936); Ross v. United States, 103 F.2d 600, 606 (9th Cir. 1939); Fegles Construction Co. v. McLaughlin Construction Co., 205 F.2d 637, 639-640 (9th Cir. 1953); Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1955); Medrano v. United States, 315 F.2d 361, 362 (9th Cir. 1963); Devore v. United States, 368 F.2d 396, 399 (9th Cir. 1966). As Professor Wigmore has said, 'there is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately presented.' 1 Wigmore, Evidence, § 41, at 435 (3rd ed. 1940).

The error in this discredited doctrine is clearly reflected in the defendant's formulation: 1 it assumes that a fact established by circumstantial evidence is not a 'proven fact.' But as we have repeatedly said, circumstantial evidence is not inherently less probative than direct evidence. 2 Under some conditions it may even be more reliable, 3 as this case illustrates.

The intermediate fact at issue here was whether defendant was the driver of the car waiting in the parking lot. That fact was established to a moral certainty by circumstances proven by uncontradicted and unquestioned testimony. Unless defendant was Brewton's accomplice waiting in the get-away car, it is all but inconceivable that he would have been driving that car with Brewton as a passenger a few minutes after Brewton ran from the bank to the car and was driven from the scene; that he would have had part of the stolen currency in his possession, and Brewton the rest; and that upon seeing the police officer he would have driven away at high speed, and later fled from the office on foot.

If none of this circumstantial evidence had been available and the only evidence offered had been a courtroom identification of the defendant by a witness who had a fleeting glimpse of the driver as the car stood in the parking lot, the truth

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of the fact that defendant was that man would not have been established with equal certainty. 4

Of course either direct or circumstantial evidence may fail to prove the fact in issue-- direct evidence because the credibility of the witness is destroyed; circumstantial evidence for that reason, or because the inference from the proven circumstances to the fact in issue is too speculative, or remote. 5 Whether such a failure has occurred is an appropriate inquiry in any case-- be the evidence direct, circumstantial, or both. But since under some conditions circumstantial evidence may be equally or more reliable than direct evidence, it would be wholly irrational to impose an absolute bar upon the use of circumstantial evidence to prove any fact, including a fact from which another fact is to be inferred.

The trial court therefore properly refused to instruct the jury that 'one inference may not be based upon another inference to support a conclusion of fact.' It would be error for the jury, the trial court, or this court, to apply such an arbitrary formula in the performance of their respective roles in the fact-finding process.

II

It is also clear that the court properly rejected defendant's proposed instruction embodying a variation on the theme that circumstantial evidence must exclude every hypothesis but that of guilt. 6

This much, at least, is settled by Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1955). What the Holland court said is brief, and well worth repeating in full:

'The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485-487; Stutz v. United States, 5 Cir., 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect, United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 229, 234, cert. denied, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002; United States v. Becker, 2 Cir., 62 F.2d 1007, 1010; 1 Wigmore, Evidence (3d ed.), §§ 25-26.

Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to

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guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.' 348 U.S. at 139-140, 75 S.Ct. at 137 (emphasis added).

The Supreme Court did more than reject the particular instruction before it; it clearly stated that no instruction is to be given distinguishing the manner in which direct and circumstantial evidence are to be weighed. Since circumstantial and testimonial evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is to be required of the jury is that it weigh all of the evidence, direct or circumstantial, against the standard of reasonable doubt.

Our holdings are in accord with this interpretation of Holland. Mull v. United States, 402 F.2d 571, 575 (9th Cir...

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