United States v. Taylor
Decision Date | 06 July 1972 |
Docket Number | Docket 72-1165.,No. 832,832 |
Citation | 464 F.2d 240 |
Parties | UNITED STATES of America, Appellee, v. Ralph Kelly TAYLOR, II, Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Brian F. Mumford, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N. D. N. Y., of counsel), for appellee.
Freling H. Smith, Albany, N. Y. (Cooper, Erving & Savage, Albany, N. Y., of counsel), for appellant.
Before FRIENDLY, Chief Judge, and LUMBARD and MULLIGAN, Circuit Judges.
The sole question meriting discussion in this opinion1 is the sufficiency of the evidence to warrant submission to the jury of the question whether Taylor "with intent to defraud" kept in possession and concealed a quantity of counterfeit Federal Reserve notes found in a car which Taylor, accompanied by one MacDonald, was driving from Canada into the United States.
Counsel for appellant asks us, as many others have done, to overrule the so-called "Second Circuit rule," first enunciated by Judge Learned Hand in United States v. Feinberg, 140 F.2d 592, 594 (2 Cir.), cert. denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1944), and later challenged, at great length but without success, by Judge Jerome Frank in United States v. Masiello, 235 F.2d 279, 285 (2 Cir.), cert. denied, 352 U.S. 882, 77 S.Ct. 100, 1 L.Ed.2d 79 (1956) (concurring opinion). The "rule" in this circuit has been that "the standard of evidence necessary for the judge to send a case to the jury is the same in both civil and criminal cases," even though the jury must apply a higher standard before rendering a verdict in favor of the proponent in the latter. United States v. Feinberg, supra, 140 F.2d at 594. Despite our reverence for Judge Hand, perhaps in part because of our desire to remove one of his rare ill-advised opinions from public debate, we agree that the time for overruling the Feinberg "single test" standard has arrived.
It is, of course, a fundamental of the jury trial guaranteed by the Constitution that the jury acts, not at large, but under the supervision of a judge. See Capital Traction Company v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873 (1899). Before submitting the case to the jury, the judge must determine whether the proponent has adduced evidence sufficient to warrant a verdict in his favor. Dean Wigmore considered, 9 Evidence § 2494 at 299 (3d ed. 1940), the best statement of the test to be that of Mr. Justice Brett in Bridges v. Railway Co. 1874 L.R. 7 H.L. 213, 233:
Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the Plaintiff is bound to maintain ?
It would seem at first blush— and we think also at second—that more "facts in evidence" are needed for the judge to allow men, and now women, "of ordinary reason and fairness" to affirm the question the proponent "is bound to maintain" when the proponent is required to establish this not merely by a preponderance of the evidence but, as all agree to be true in a criminal case, beyond a reasonable doubt. Indeed, the latter standard has recently been held to be constitutionally required in criminal cases. In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). We do not find a satisfying explanation in the Feinberg opinion why the judge should not place this higher burden on the prosecution in criminal proceedings before sending the case to the jury.
After acknowledging "that in their actual judgments the added gravity of the consequences in criminal cases makes them the judges more exacting," 140 F.2d at 594, Judge Hand based the refusal to require a higher standard of sufficiency in criminal cases on authority and a belief that "while at times it may be practicable" to "distinguish between the evidence which should satisfy reasonable men, and the evidence which should satisfy reasonable men beyond a reasonable doubt, . . . in the long run the line between them is too thin for day to day use." Id.
However the argument from authority may have stood in 1944, that battle has now been irretrievably lost. See 2 C. Wright, Federal Practice and Procedure § 467, at 255-257 (1969), and cases there cited. Almost all the circuits have adopted something like Judge Prettyman's formulation in Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). This, along with its rationale, reads as follows:
On Judge Hand's second point, while we agree there will be few cases where application of Judge Prettyman's test would produce a different result, we cannot say these are non-existent, as indeed he conceded. The Supreme Court has recognized the feasibility of a standard intermediate between preponderance and proof beyond a reasonable doubt, to wit, clear and convincing evidence. Chaunt v. United States, 364 U.S. 350, 353-354, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960) (denaturalization); Woodby v. INS, 385 U.S. 276, 285-286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (deportation). Implicit in the Court's recognition of varying burdens of proof is a concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury.
A further reason for wiping the rule enunciated in United States v. Feinberg off the books is that in practice it is no longer followed in this circuit when reviewing the denial of motions for acquittal for insufficiency of the evidence. In numerous cases this court, without having expressly overruled Feinberg, has announced a stricter standard. See, e. g., United States v. Lefkowitz, 284 F.2d 310, 315-316 (2 Cir. 1960); United States v. Robertson, 298 F.2d 739 (2 Cir. 1962); United States v. Kahaner, 317 F.2d 459, 467-468 (2 Cir.), cert. denied, Corallo v. United States, 375 U.S. 835-836, 84 S.Ct. 62, 11 L.Ed.2d 65 (1963); United States v. Glasser, 443 F.2d 994, 1006 (2 Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971); United States v. Brown, 456 F.2d 293, 295 (2 Cir. 1972). In other cases we have tested sufficiency under the stricter formulation as well as the Feinberg test, thereby implying that the latter was not strong enough. See, e. g., United States v. Monica, 295 F.2d 400, 401 (2 Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962); United States v. Coblentz, 453 F.2d 503 (2 Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); United States v. Iannelli, 461 F.2d 483, 486 n. 4 (2 Cir. 1972); United States v. Massarotti, 462 F.2d 1328, ___ (2 Cir. 1972). Some of our district judges have sensed that a change may have occurred. Judge Bryan seems to have been the first to perceive this, see United States v. Leitner, 202 F.Supp. 688, 693-694 (S.D.N.Y.1962), aff'd, 312 F.2d 107 (2 Cir. 1963). Other district judges have followed, some expressly, see United States v. Melillo, 275 F.Supp. 314, 317-318 (E.D.N.Y.1967); United States v. Chas. Pfizer & Co., 281 F. Supp. 837, 839 (S.D.N.Y.1968), rev'd on other grounds, 426 F.2d 32 (2 Cir. 1970), aff'd by an equally divided court, 404 U.S. 548, 92 S.Ct. 731, 30 L.Ed.2d 721 (1972), and others, we have no doubt, silently. Yet it would be wholly understandable that other district judges still feel bound to follow Feinberg, thereby occasionally, although rarely, producing a result unfair to the defendant unless it were reversed by this court, as we think it would be. Leaving Feinberg on the books thus creates a trap for district judges, a paper sword for prosecutors, and an unwarranted burden upon criminal defendants. Although we would normally invoke in banc consideration before taking such a step, Feinberg has already been so eroded that we have deemed it sufficient to circulate this opinion to...
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