U.S. v. Mount

• Decision Date: 11 September 1989
• Docket Number: No. 88-1515,88-1515
• Citation: 896 F.2d 612
• Parties: 29 Fed. R. Evid. Serv. 1026 UNITED STATES of America, Appellee, v. Charles M. MOUNT, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 612

896 F.2d 612

29 Fed. R. Evid. Serv. 1026

UNITED STATES of America, Appellee, v. Charles M. MOUNT, Defendant, Appellant.

No. 88-1515.

United States Court of Appeals, First Circuit.

Heard Sept. 11, 1989.

Decided Feb. 20, 1990.

Willie J. Davis, by Appointment of the Court, with whom Davis, Robinson & Smith was on brief, for defendant, appellant.

Martin F. Murphy, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for U.S.

Before SELYA, Circuit Judge, COFFIN and FAIRCHILD, ^* Senior Circuit Judges.

FAIRCHILD, Senior Circuit Judge.

The defendant, Charles Merrill Mount, is an art historian and former portrait painter of some note. He has been convicted under 18 U.S.C. Sec. 2314 of transporting in interstate commerce rare historical documents, knowing they were stolen from the Library of Congress and the National Archives.

I.

On July 15, 1987, Mr. Mount wrote to Goodspeed's, an antiquarian book shop located on Beacon Hill, Boston, offering to sell a collection of letters and other documents written by the American artist, James McNeill Whistler, plus two other letters concerning Whistler, one of which was written by the French artist Henri Fantin-Latour, a Whistler contemporary. Responding to an invitation by Claire Rochefort, the director of Goodspeed's autograph department, Mr. Mount travelled to Boston from his Washington, D.C. residence on July 23, to show his collection. Ms. Rochefort agreed to buy from Mr. Mount 33 documents for a price of $20,000. Sold were 28 documents written by Whistler, two letters written by the American author Henry James, a list of articles owned by Henry James and signed by his wife Alice, a letter by Fantin-Latour, and a letter written by Winston Churchill in 1914, then First Lord of the Admiralty.

A few weeks later, on August 5, 1987, Mr. Mount again wrote to Ms. Rochefort at Goodspeed's, this time offering to sell a collection of documents from the American Civil War. In the letter Mr. Mount claimed that, while retrieving a Henry Adams letter he and Ms. Rochefort had discussed from his "vault" (actually a bank safety deposit box), "fumbling about, I came across an envelope containing a Civil War collection of 158 pieces which I thought to have been lost or stolen long ago." Mr. Mount included a list describing each document in the collection, and photocopies of the most significant ones. The collection contained eight documents written or signed by President Lincoln, plus letters (including battlefield correspondence) from Union Generals Grant, Meade, McClellan, Sherman, Pope, Hooker and Halleck, and from members of Lincoln's cabinet, Secretary of War Edwin M. Stanton, Secretary of State William H. Seward, Secretary of Treasury Salmon P. Chase, and Secretary of Navy Gideon Wells. Mr. Mount offered to sell the group of documents for $64,600.

After receiving this letter, Ms. Rochefort examined the enclosed photocopies of the Lincoln documents, and checked an eight volume set called The Collected Works of Abraham Lincoln, edited by Roy P. Basler. Basler's work contains the printed text of most of the known documents written by Abraham Lincoln, arranged chronologically. Ms. Rochefort found that the texts of three of the letters ¹ Mr. Mount offered for sale were contained in Basler's, and that the book credited the National Archives in Washington, D.C. as the owner of the letters. She alerted the F.B.I., and at its request invited Mr. Mount to Boston to show her the Civil War collection. Mr. Mount came to Boston the next morning, August 13, 1987. After discussing the documents with Ms. Rochefort for about 45 minutes, Mr. Mount was arrested.

Mr. Mount was indicted on two counts of violating 18 U.S.C. Sec. 2314. Count I alleged that 19 of the documents sold to Goodspeed's on July 23 belonged to the Library of Congress, that four others (the three Henry James documents and the Churchill letter) belonged to the National Archives, and that Mr. Mount knew they were stolen when he brought them from Washington, D.C. to Boston. Count II alleged that 144 of the 158 documents offered for sale on August 13 were transported from Washington, D.C. to Boston, Mr. Mount knowing they had been stolen from the National Archives. ²

The government readily proved that Mr. Mount transported the documents in interstate commerce. The critical issues at trial were whether the documents had been stolen and whether Mr. Mount knew they were stolen. The government introduced evidence tending to prove that the documents had been contained in collections possessed by the Library of Congress and the National Archives and that Mr. Mount had access to the relevant collections shortly before he transported the documents to Boston. The government asked the jury to infer that Mr. Mount himself had stolen the documents, and therefore knew they were stolen.

The jury found Mr. Mount guilty on both counts. He was sentenced to three years in prison on each count, the judge suspending execution of the sentence on Count II and substituting a five-year term of probation, beginning upon release from custody.

Mr. Mount appeals this conviction. His appointed attorney (different from counsel who represented him at trial) argues (1) that the district court erred in refusing to authorize funds to secure the testimony of two foreign witnesses; (2) that the admission of certain evidence under Rule 404(b) was prejudicial error; and (3) that the trial court erred in instructing the jury. Dissatisfied with his appointed counsel, Mr. Mount requested and was granted leave to submit a supplemental brief pro se. Mr. Mount challenges (1) the sufficiency of the evidence to convict him; (2) the use of allegedly perjured testimony at various hearings; (3) the admission into evidence of several volumes of Basler's Collected Works of Abraham Lincoln; and (4) certain statements in the prosecution's closing argument. ³

II.

A. Sufficiency of the Evidence.

Evidence is legally sufficient to sustain a conviction if,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In making this determination, we do not assess the credibility of the witnesses, which is the sole function of the trier of fact. Nor does the government have to disprove every reasonable hypothesis of innocence, it is sufficient that the record as a whole supports a conclusion of guilt beyond a reasonable doubt.

United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989) (quoting United States v. Torres Lopez, 851 F.2d 520, 527-28 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989) (citations omitted). "The government may prove its case through the use of circumstantial evidence so long as the total evidence, including reasonable inferences, is sufficient to warrant a jury to conclude that the defendant is guilty beyond a reasonable doubt." United States v. Campa, 679 F.2d 1006, 1010 (1st Cir.1982).

We have extensively reviewed the record, delving beyond the parties' presentation of the facts on appeal. Theft of the documents from the Library of Congress and the National Archives was proved solely with circumstantial evidence, and was ardently contested in a spirited defense. Mr. Mount gave explanations of where and when he acquired the documents. His account was detailed and mostly consistent with the rest of his testimony. He continues to protest his innocence of any crime. The main contentions were whether the documents transported to Boston were the identical documents which had been included in the libraries' collections, and if they were, whether the libraries possessed them at the time Mr. Mount saw the collections. The defense raised some interesting questions concerning the provenance and ownership of the documents--including Whistler's purported custom of writing by hand duplicate or nearly duplicate letters, the United States' practice during the Civil War of creating various types of copies of certain communications, haphazard storage of Civil War records, and incomplete and imprecise record-keeping by the Library of Congress and National Archives. Despite this aggressive defense, we believe the evidence was sufficient to support a finding of guilt. ⁴

1. Mr. Mount's Access to the Collections.

Shortly before approaching Goodspeed's, Mr. Mount had personally reviewed the collections in both the Library of Congress and the National Archives where the documents in question would have been kept, if they were in fact owned by the two institutions.

In 1985, the Library of Congress provided Mr. Mount a working space in its administrative office. He was not an employee of the Library. Initially, he used this space while writing an article on the American portrait painter, John Singer Sargent. During this time, he was not using the Library's reading room, where researchers gain access to the Library's manuscript collections. Instead, he worked at his desk, using his own collection of Sargent materials.

While at the Library, Mr. Mount met Randolph Boehm, who was working for a company which made microfilm sets of original manuscripts to sell to universities. The two men discussed the possibility of creating a microfilm set from the Library's Pennell-Whistler Collection, which contained some 96,000 documents written by, or concerning, the artist Whistler. (The collection is named after its donors, Joseph and Elizabeth Pennell). Mr. Boehm was interested, and beginning March 28, 1987, Mr. Mount began working in the Library's research room, making a thorough survey of the collection. His efforts culminated in a detailed report which he submitted to Mr. Boehm, claiming to have reviewed all 381 containers of materials in the Pennell-Whistler collection. Unfortunately, the microfilming project fell through when Mr. Boehm's superiors withdrew their support. Declaring that space was needed for...