Borum v. United States, 19960.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: BAZELON, , BURGER and WRIGHT, Circuit
• Citation: Borum v. United States, 380 F.2d 595, 127 U.S. App. D.C. 48 (D.C. Cir. 1967)
• Decision Date: 19 May 1967
• Docket Number: No. 19960.,19960.
• Parties: Ernest S. BORUM, Appellant, v. UNITED STATES of America, Appellee.

127 US App. DC 48, 380 F.2d 595 (1967)

Ernest S. BORUM, Appellant, v. UNITED STATES of America, Appellee.

No. 19960.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1966.

Decided May 19, 1967.

As Amended June 28, 1967.

Mr. Eugene L. Stewart, Washington, D. C. (appointed by this court), for appellant.

Mr. Barnet D. Skolnik, Atty., Department of Justice of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, BURGER and WRIGHT, Circuit Judges.

BAZELON, Chief Judge.

Borum appeals from a jury conviction for housebreaking. In another appeal, decided today, we affirmed Borum's conviction for housebreaking and robbery committed one month after the alleged crime in the instant case. (Nos. 20092 and 20093, Stevenson and Borum v. United States, 127 U.S.App.D.C. ___, 380 F.2d 590.) In that case, as in this one, the Government's fingerprint evidence proved that at some time the defendants touched objects found at the scene of the crime. But there the Government introduced additional evidence indicating that these objects were generally inaccessible to the defendants and that therefore the objects were probably touched during the commission of the crime. Here, the Government introduced no evidence indicating that the objects were generally inaccessible to Borum. Therefore, we reverse.

The Government's evidence showed that complainant's home was entered and ransacked in his absence between 11:45 a.m. and 3:00 p.m. on June 2, 1965. Four fingerprints, taken from one or two empty jars, were identified as Borum's.¹ Other fingerprints, found on different jars and on a metal box, had not been identified by the time of trial.² Complainant testified that the jars had contained a valuable coin collection and that the coin collection was stolen along with other items of personal property. However, Borum was tried for, but not convicted of, grand larceny.³ On cross-examination and rebuttal the Government elicited testimony which, when all inferences are made in favor of the Government, placed Borum within a mile and a half of complainant's home at about 1:00 p.m.⁴ Borum's principal contention is that the trial court erred in denying his motions for acquittal at the conclusion of the Government's case and at the conclusion of all the testimony.⁵

The Government's evidence shows that Borum touched the one or two jars in question. But there is no evidence, either direct or circumstantial, which indicates that he touched the jars in the course of a housebreaking on June 2, 1965. Indeed, one of the Government's own witnesses testified that Borum's fingerprints could have been on the jars "indefinitely."⁶ And another agreed that the fingerprints could have been on the jars "for a period of * * * years."⁷ The Government introduced no evidence which could account for, or even suggest an inference about, the custody or location of the jars during that period.

Of course, the jury may have thought that Borum could not have touched the jars at any other time or in any other place. The jury may have thought that Borum never had any opportunity to touch the jars outside the house either before or after complainant bought them.⁸ But that conclusion would have been based on speculation alone. The jury had no way to determine where the complainant purchased the jars, or how long he had them before June 2, or whether complainant ever removed them from his home, or how long the prints were on the jars.⁹ The Government need not negate all inferences consistent with innocence which could arise from the fingerprints.¹⁰ It negated none.¹¹

With evidence so inconclusive, a reasonable person must have a reasonable doubt about Borum's guilt.¹² The case should not have been submitted to the jury, for the Government produced no evidence, either direct or circumstantial, which could support an inference that the fingerprints were placed on the jars during commission of the crime. Fingerprint evidence is very reliable. It is a kind of evidence courts should encourage police to obtain. But to allow this conviction to stand would be to hold that anyone who touches anything which is found later at the scene of a crime may be convicted, provided he was within a mile and a half of the scene when the crime may have been committed. We decline to adopt such a rule.

Reversed with directions to enter a judgment of acquittal.

J. SKELLY WRIGHT, Circuit Judge (concurring):

I join the court's opinion because there is not a scintilla of evidence, other than the four single fingerprints, to support this conviction. Moreover, the Government's fingerprint expert testified that the fingerprints in question could have been on the jar for several years, and there is no accounting in the record for the custody of the jars during this period. In addition, the only eyewitness in the case, who was made available to the defense by the Government under Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), testified that the man he saw on the victim's porch around the time of the crime was not the appellant. Under the circumstances, to affirm the conviction in this case on fingerprint evidence alone without accounting for the custody of the jars would be to adopt a rule of law for use in similar cases which, as the court points out, would jeopardize the liberty of every person who ever touched anything later found at the scene of a crime.

Hyperbole and predictions of gloom and doom, of course, are often the hallmarks of a dissent. The dissent here, however, exceeds normal limits. Its exercise in frustration is particularly difficult to understand since this court today affirms another conviction against Borum under which he will serve from 20 months to five years. Moreover, the dissent is misled by inaccurate record references and unfounded assumptions as to the facts. For example: (1) Throughout the dissent it is assumed that Borum, possibly with confederates, took a 300-pound coin collection from the home of the complaining witness. At page 600 the dissent states: "Since Appellant could hardly have carried 300 pounds of coins alone, the jury could infer that he had several confederates who also left prints." The fact is that Borum was tried for, but not convicted of, grand larceny based on the alleged theft of the coin collection. No "confederates" were even charged. (2) The dissent argues that Judge Prettyman's opinion in Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966), in which a conviction based on fingerprint evidence was reversed, is irrelevant because "there the fingerprints were in an automobile parked on a public street." (Emphasis in the dissent.) In Hiet the fingerprints were found on the inside of a vent window of a car whose lock had been broken off. (3) The dissent, as shown in its footnote 7, apparently is influenced by two other Borum cases, one still on appeal (No. 20,270) and the other handed down today (Borum v. United States, No. 20,093, 127 U.S.App. D.C. ___, 380 F.2d 590). The records in those cases, of course, are not part of the record in this case. Under familiar principles, consideration of them here is inappropriate and legally impermissible. (4) The dissent states that Borum No. 20,093 "is affirmed today on evidence essentially the same, i.e., fingerprints, which the majority finds insufficient in this appeal." Unlike this case, in Borum No. 20,093 the evidence shows that Borum's fingerprints could have been left only at the time of the crime. Thus the danger of setting a precedent which could result in the conviction of innocent people on fingerprint evidence alone is avoided.

I share Judge Burger's enthusiasm for a jury, particularly if it is composed of a random cross section of the people rather than the result of a selection made by jury commissioners. But where under the law the evidence is insufficient to take the case to the jury, the court has a responsibility to act. I join the court in so doing.

BURGER, Circuit Judge (dissenting):

The majority sets a new record of usurpation of the jury's fact finding function in a case which presents essentially the same facts as does another criminal conviction of Appellant affirmed by this court today.¹ The majority justifies the holding with no more than the astonishing statement that "if we allow this conviction to stand, anyone who touches anything which is found later at the scene of a crime could be convicted. * * *" If there are any "predictions of gloom and doom" in what is said today, I suggest they are to be found in that statement.

No one questions that a court is required to grant a motion for acquittal if the evidence is such that a reasonable juror must have a reasonable doubt as to the defendant's guilt. But today's holding blandly ignores the corollary to this proposition, which we have stated in our leading case on the subject, that

if a reasonable mind might fairly have a reasonable doubt or might not have one, the case is for the jury, and the decision is for the jurors to make.²

Moreover, this court has made it plain that the mere existence of other possible hypotheses is not enough to remove the case from the jury:

If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis but that of guilt, he would preempt the functions of the jury. Under such a rule, the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of facts and of guilt or innocence, not merely a device for checking upon the conclusions of the judge.

Supra at 393, 160 F.2d at 233.

Law enforcement agencies have been given frequent judicial lectures that they should rely...