U.S. v. Price, No. 85-2378

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY, LOGAN and MOORE; McKAY
Citation795 F.2d 61
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James L. PRICE, Defendant-Appellant.
Decision Date25 June 1986
Docket NumberNo. 85-2378

Page 61

795 F.2d 61
UNITED STATES of America, Plaintiff-Appellee,
v.
James L. PRICE, Defendant-Appellant.
No. 85-2378.
United States Court of Appeals,
Tenth Circuit.
June 25, 1986.

Page 62

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Presiliano Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Richard J. Smith, Asst. U.S. Atty., on brief), D.N.M., Albuquerque, N.M., for plaintiff-appellee.

Before McKAY, LOGAN and MOORE, Circuit Judges.

McKAY, Circuit Judge.

James L. Price appeals his conviction of uttering a forged United States Treasury check in violation of 18 U.S.C. Sec. 495 (1982). He argues that the evidence is insufficient to sustain his conviction and that he was denied effective assistance of counsel.

Before examining the evidence presented, we find it necessary to reiterate the correct standard for evaluating the sufficiency of the evidence, because litigants such as Mr. Price continue to appear before us and cite an incorrect standard. In his brief, Mr. Price states:

[T]o uphold a conviction challenged for insufficiency of the evidence, the appellate court must find that a trier of fact could rationally have excluded every reasonable hypothesis of innocence. U.S. v. Davilla, 693 F.2d 1006, 1007 (10th Cir.1982). See also U.S. v. Ackal, 706 F.2d 523, 529 (5th Cir.1983). "The evidence must be substantial; it must do more than raise a mere suspicion of guilt. If the evidence is consistent with both innocence and guilt it cannot support a conviction." U.S. v. Varoz, 740 F.2d 772, 775 (10th Cir.1984).

Appellant's Brief-in-Chief at 12.

In United States v. Hooks, 780 F.2d 1526, 1530-31 (10th Cir.1986), we sought to clarify the correct standard. There we expressly rejected the standards enunciated by Mr. Price and emphasized that there is but a single test that applies in reviewing the sufficiency of the evidence in criminal cases. We also noted that our opinions unfortunately have stated that a conviction cannot be based upon evidence which is consistent with both innocence and guilt. * Referring to this incorrect standard, we have explained:

The use of this language is unfortunate for it suggests that a criminal conviction cannot be sustained if a reasonable hypothesis could be designed which is consistent with innocence. Indeed, if there was any validity to this proposition after Corbin [v. United States, 253 F.2d 646 (10th Cir.1958) ], it was flatly rejected by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] ... (1979). There, in explaining the standard for weighing the constitutional sufficiency of the evidence, the Court stated:

Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the court has rejected in the past. Holland v. United States, 348 U.S. 121, 140 [75 S.Ct. 127, 137, 99 L.Ed. 150].... We decline to adopt it today.

443 U.S. at 326 [99 S.Ct. at 2792]....

780 F.2d at 1530. Finally, we stated in Hooks:

In the event that our formulation of the standard for reviewing criminal convictions has resulted in ... mischief, we take this opportunity to make clear that, regardless of the kind of evidence, direct or circumstantial, there is a single test that applies in reviewing the sufficiency of the evidence in criminal cases. [footnote omitted] The evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom-

Page 63

--is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.

780 F.2d at 1531.

Mr. Price argues that we should not view the record as a whole in assessing the sufficiency of the evidence, rather that we should consider only the evidence submitted at the time the government closed its case-in-chief--when Mr. Price moved for acquittal. Apparently, Mr. Price prefers that we view only the government's case-in-chief because evidence of his previous felony convictions was introduced later in trial, Record, vol. 2, at 73-76, and because the court relied on his own testimony in finding...

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11 practice notes
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 23, 1997
    ...of Appeals, however, has flatly rejected application of a Davis-Hepp type standard following Jackson v. Virginia. United States v. Price, 795 F.2d 61, 62 (10th Cir.1986) ("`The use of this language is unfortunate for it suggests that a criminal conviction cannot be sustained if a reaso......
  • U.S. v. Jaynes, Nos. 95-6009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 5, 1996
    ...which the actor knows will interfere with the government's regular payment of funds to a lawful recipient." United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). An intent to defraud can be inferred from circumstantial evidence. See id. Signing a check in a name other than one's rea......
  • US v. Treadway, Crim. No. A-CR-90-33.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • September 4, 1990
    ...under § 495 requires proof that the defendant "circulated a check knowing that it was forged...." United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). "An offender who passes a forged Treasury check under $500 could be charged with either a felony under § 495 or a misdeme......
  • U.S. v. Bowie, Nos. 87-2461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 8, 1990
    ...have waived any objection to its denial." United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978); see also United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). This is of little moment, however, because even if the acquittal motion is renewed at the close of all evidence, we hav......
  • Request a trial to view additional results
11 cases
  • U.S. v. Saborit, No. CR 96-4043-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 23, 1997
    ...of Appeals, however, has flatly rejected application of a Davis-Hepp type standard following Jackson v. Virginia. United States v. Price, 795 F.2d 61, 62 (10th Cir.1986) ("`The use of this language is unfortunate for it suggests that a criminal conviction cannot be sustained if a reaso......
  • U.S. v. Jaynes, Nos. 95-6009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 5, 1996
    ...which the actor knows will interfere with the government's regular payment of funds to a lawful recipient." United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). An intent to defraud can be inferred from circumstantial evidence. See id. Signing a check in a name other than one's rea......
  • US v. Treadway, Crim. No. A-CR-90-33.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • September 4, 1990
    ...under § 495 requires proof that the defendant "circulated a check knowing that it was forged...." United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). "An offender who passes a forged Treasury check under $500 could be charged with either a felony under § 495 or a misdeme......
  • U.S. v. Bowie, Nos. 87-2461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 8, 1990
    ...have waived any objection to its denial." United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978); see also United States v. Price, 795 F.2d 61, 63 (10th Cir.1986). This is of little moment, however, because even if the acquittal motion is renewed at the close of all evidence, we hav......
  • Request a trial to view additional results

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