U.S. v. Burns

• Citation: 597 F.2d 939
• Decision Date: 28 June 1979
• Docket Number: No. 78-2624,78-2624
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Robert E. BURNS and Margaret Ann Green, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 939

597 F.2d 939

UNITED STATES of America, Plaintiff-Appellant, v. Robert E. BURNS and Margaret Ann Green, Defendants-Appellees.

No. 78-2624.

United States Court of Appeals Fifth Circuit.

June 28, 1979.

J. R. Brooks, U. S. Atty., Bill L. Barnett, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellant.

W. Jason Uchitel, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, TJOFLAT and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge.

This is an appeal by the Government from judgments of acquittal entered after a jury found the Appellees guilty of violating the National Motor Vehicle Theft Act. 18 U.S.C.A. §§ 2312 and 2313. The sole issue on appeal is whether the Government produced sufficient evidence to establish Appellees' knowledge of the stolen character of the vehicles involved. Since the District Court applied an incorrect measure of the sufficiency of the evidence and the evidence was sufficient to support the jury's verdict, we vacate and order the entry of judgments on the guilty verdicts.

Appellee Burns, his daughter Appellee Green, and Harold Lang were indicted for transporting, receiving and selling four stolen Cadillac automobiles. Lang pled guilty and testified at the Appellees' trial. Burns and Green were found guilty by the jury. They both moved for a judgment of acquittal after the Government's evidence, again after all the evidence and again after the jury's verdict. The District Court granted the last motions and attempted to grant the motions made at the close of the evidence Nunc pro tunc.

At trial the Government proved that the four automobiles were stolen in New York. Lang testified that while unemployed and living in Orlando, Florida he was contacted by a man about selling a late model Cadillac for a commission. Lang called Burns, a casual acquaintance, in Huntsville, Alabama, since he recalled that Burns had once been in the automobile retail business. He offered the automobile, a 1976 Cadillac Seville, to Burns for $6,500. Burns flew to Orlando, paid the $6,500 without any further negotiation and drove it back to Huntsville. At that time, Lang assured Burns that the automobile was not stolen and repeated what he had been told: it had been repossessed in New York. Lang received $1,000 for his efforts.

Lang sold three more 1976 Cadillacs to Burns in the following few weeks for less than their wholesale value. ¹ Lang drove the three Cadillacs to Huntsville and delivered them to Burns. During these transactions Lang never indicated that the automobiles were stolen. He testified that he himself did not then know they were stolen for, in his position, he did not want to ask. Lang only dealt directly with Burns; he never dealt with Green. Lang furnished title documents to Burns which reflected that third persons, unknown to either, were the former owners of the vehicles.

Initially, we note that this Government appeal from these judgments of acquittal entered after a jury verdict is permissible under 18 U.S.C.A. § 3731. The District Court's attempt to grant the motions for judgment of acquittal made after the close of all the evidence Nunc pro tunc came after the jury's verdict. The Nunc pro tunc granting of these motions is treated the same as the granting of the motions made and granted after the jury's verdict. Since reversal would require only the reinstatement of the guilty verdicts of the fact finder and Appellees would not be subjected to a new trial, the Government may appeal. See United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); United States v. Martin Linen Supply Company, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); United States v. Clemones, 577 F.2d 1247 (5th Cir. 1978); United States v. Boyd, 566 F.2d 929 (5th Cir. 1978); United States v. Cravero, 530 F.2d 666 (5th Cir. 1976). Of course, had the District Court granted either the motions made at the close of the Government's case or the motions made at the close of all the evidence Before the jury returned a guilty verdict, the matter would have ended then and there.

The test outlined by this Court when a trial court rules on a motion for judgment of acquittal challenging the sufficiency of the evidence applies to such motions whether made at the close of the Government's case, at the close of all the evidence, or after the return of a guilty verdict. The District Court must determine whether the relevant evidence, viewed in the light most favorable to the Government, could be accepted by a reasonably-minded jury as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. The same test applies whether the evidence is direct or circumstantial. All reasonable inferences which tend to support the Government's case must be accepted. Any conflicts in the evidence must be resolved in the Government's favor. See, e. g., United States v. Austin, 585 F.2d 1271, 1273 (5th Cir. 1978); United States v. Teal, 582 F.2d 343 (5th Cir. 1978); United States v. Bibbs, 564 F.2d 1165 (5th Cir. 1977); United States v. Warner, 441 F.2d 821 (5th Cir.), Cert. denied,404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). This test has also been formulated as: ". . . whether the jury might reasonably conclude that the evidence, viewed in the light most favorable to the prosecution, is inconsistent with every reasonable hypothesis of the accused's innocence." United States v. Fredericks, 586 F.2d 470, 474 (5th Cir. 1978) (citations omitted). See also, e. g., United States v. Barrentine, 591 F.2d 1069 (5th Cir. 1979); United States v. Evans, 572 F.2d 455 (5th Cir.), Cert. denied sub nom. Tate v. United States, --- U.S. ----, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); United States v. Prout, 526 F.2d 380 (5th Cir. 1976). A third formulation is similar: the District Court must determine whether, viewing the evidence in the light most favorable to the Government, the jury must necessarily entertain a reasonable doubt as to the guilt of the defendant. See, e. g., United States v. Soto, 591 F.2d 1091, 1101 n.7 (5th Cir. 1979); United States v. Iverson, 588 F.2d 194 (5th Cir. 1979); United States v. Garza, 574 F.2d 298, 304 n.11 (5th Cir. 1978). United States v. Duckett,550 F.2d 1027, 1030 (5th Cir. 1978). ² These same three formulations apply to appellate claims of insufficient evidence, which require this Court to determine whether the District Court properly disposed of the motion for judgment of acquittal.

Before reaching the merits of the claimed insufficiency of the evidence here, we note that the District Court applied an incorrect analysis. It readily appears from the District Court's bench ruling that it substituted its own subjective interpretation of the evidence for that of the jury's by assessing the credibility of witnesses and the Appellees' characters. The Supreme Court has specifically disapproved such weighing of evidence and assessments of witnesses' credibility by the trial court when deciding the merits of these motions. Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). See also United States v. Johnson, 489 F.2d 139 (5th Cir. 1974). Recently, this Court held:

It is not properly the function of the court, in ruling on such a motion, to assess the credibility of witnesses, weigh the evidence, or substitute its own judgment as to the guilt or innocence for that of the jury.

(O)nce the government's evidence has passed the test of legal sufficiency, a trial judge is without authority to enter a judgment of acquittal "simply because he thinks that course would be most consonant with the interests of justice."

United States v. Brown, 587 F.2d 187, 190-91 (5th Cir. 1979) (citations omitted). See also United States v. Cravero, 530 F.2d 666 (5th Cir. 1976); United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), Cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). We hold that the evidence was sufficient here.

In seeking to overturn the grant of the judgments of acquittal on the merits, the Government relies heavily on the inference of guilty knowledge permissible from the unexplained possession of recently stolen property.

Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only Prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence.

Wilson v. United States, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090 (1896). This ancient common law inference ³ has been approved by the Supreme Court, ⁴ by all of our sibling Circuits, ⁵ and by this Court in a long line of cases. ⁶ The common law logical derivation of this inference is quite simple. One found in unexplained possession of recently stolen property likely is the thief or privy to the theft. Therefore, guilt may be inferred from the fact of possession.

As it has evolved, this inference has played a most significant role in prosecutions under the National Motor Vehicle Theft Act, commonly known as the Dyer Act. 18 U.S.C.A. §§ 2311-2313. Basically, the Act makes it a criminal offense to transport in interstate commerce a motor vehicle with knowledge that it has been stolen and also makes it an offense to receive, conceal, store, barter, sell or dispose of a motor vehicle with knowledge of its stolen character. Therefore, the Government is required by the nature of the offense to establish the mental element of guilty knowledge concomitant with the conduct proscribed in the Act. The inference is most often used to help establish this mental element which necessarily must be proven by circumstantial evidence and inference. From the...