U.S. v. Robinson, 170

• Decision Date: 10 November 1976
• Docket Number: D,No. 170,170
• Citation: 545 F.2d 301
• Parties: UNITED STATES of America, Appellee, v. Ronald ROBINSON, Defendant-Appellant. ocket 76-1214.
• Court: U.S. Court of Appeals — Second Circuit

Page 301

545 F.2d 301

UNITED STATES of America, Appellee, v. Ronald ROBINSON, Defendant-Appellant.

No. 170, Docket 76-1214.

United States Court of Appeals, Second Circuit.

Argued Sept. 16, 1976.

Decided Nov. 10, 1976.

David J. Gottlieb, The Legal Aid Society, Federal Defender Services Unit, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Jonathan M. Marks, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (David G. Trager, U. S. Atty., Alvin A. Schall, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.

Before SMITH, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This case involves a variation on an old theme and demonstrates, once again, that it is often easiest to overlook the obvious. See, e. g., Poe, The Purloined Letter (1845).

According to the government, appellant Robinson was a "major fence" for stolen government checks. He was indicted, and subsequently convicted, by a jury, in the United States District Court for the Eastern District of New York, John R. Bartels, Judge, on seven counts of uttering forged United States Treasury checks with intent to defraud the United States, seven counts of possessing those same checks knowing them to be stolen from the mails and one count of conspiracy to steal from the mails, forge and utter United States Treasury checks. ¹

At trial the jury heard the following evidence. Co-conspirators Robinson and Black opened a grocery store in Jamaica, New York, under the name of "New York Boulevard Deli." Between April and August of 1975, they purchased United States Treasury checks and New York City Welfare checks for one-third of their face value and deposited them in two commercial checking accounts. After the checks cleared, they withdrew the funds and divided the profits. Approximately $70,000 in checks was "laundered" in this fashion. Robinson provided the initial capital investment to get the business started, but Black ran its day-to-day activities.

Black, an individual whose prior record is charitably described in appellant's brief as "formidable," pleaded guilty to the conspiracy charge and testified at trial against Robinson, a 38 year old Army veteran and the proprietor of a bar and a liquor store. At trial, Robinson, who had no prior arrests, claimed that he merely loaned Black the necessary funds to start a grocery store. Robinson disclaimed all knowledge of the fencing of stolen government checks.

One of the payees of the Treasury checks testified that she always received her Social Security checks by mail, that she did not receive the check which Robinson was alleged to have possessed and uttered, that the endorsement on the check was not hers and that she had no account at the bank in which the check was deposited. It was stipulated that if the other seven payees were called they would give similar testimony about their respective checks.

I. The Possession Counts

Robinson claims that the government's proof was insufficient to establish that the Treasury checks he possessed were stolen from the mails. We agree.

In a prosecution for theft from the mails where eyewitness testimony is lacking, the government usually produces evidence that the sender placed in the mails the item alleged to have been stolen, along with evidence from the addressee that the item was never received. From this evidence the jury can infer that an item which is found in improper hands was stolen from the mails.

In United States v. Hines, 256 F.2d 561 (2d Cir. 1958), Chief Judge Clark explained that,

To procure a conviction (under 18 U.S.C. § 1708) the prosecution had to show that the check actually had been stolen from the mails and that the defendant unlawfully possessed it, knowing that it was stolen. . . . the evidence adequately supports the conclusion that the check was actually stolen from the mails, for a letter properly mailed and never received by the addressee, but found in quite improper and misusing hands, can be found to have been stolen from the mails in the absence of any other explanation being proffered. Id. at 563-64. (Emphasis added)

In the instant case the government produced no evidence from the sender but limited its proof to evidence that the checks were always received by the addressees by mail, ² they were issued by three disbursement offices outside New York, ³ they did not arrive they were endorsed by someone other than the payee and they were deposited in accounts of a New York business in New York banks at which the payees had no accounts. Based upon this evidence, the government argues in this Court that

the only way the seven checks could have been stolen, but not from the mail, and still have arrived in the Eastern District would have been for them to have been taken from the separate disbursing offices and then transported individually to the (grocery store). This is a most unlikely possibility.

The government's proof regarding the disbursement offices is based upon information printed on the checks that was never explained to the jury. The origins of the checks were never mentioned at any time during the trial. Moreover, the inference suggested by the government is impermissible. It violates the principle that the jury must consider the defendant's guilt or innocence as to each count of the indictment separately. See 1 E. Devitt & C. Blackmar, Federal Jury Practice And Instructions § 17.02 (2d Ed. 1970). Thus, although it may be "most unlikely" that the seven checks would all be stolen from three different disbursement offices and then transported individually to the grocery store, it is not so unlikely that an individual check would be so stolen and so transported. The individual checks, which were the subject of separate counts of the indictment, cannot be lumped together to support the inference urged by the government. With respect to Robinson's guilt or innocence as to any particular check, evidence concerning other checks, whether or not included in the indictment, was merely similar act evidence. Such evidence, although relevant and admissible to prove Robinson's knowledge of theft, was not relevant to prove that any particular check covered by the indictment was stolen from the mails. See Fed.R.Evid. 404(b). Judge Bartels correctly instructed the jury that evidence concerning checks not involved in the indictment, of which there were many, was admitted for the limited purpose of proving knowledge. Consequently, in determining whether there was sufficient evidence to support the charge that the checks possessed were stolen from the mails, we cannot draw any inference from the fact that some checks originated from different out-of-state disbursement offices.

Ignoring, as we must, the impermissible inference urged by the government, we find that the government's proof on the issue of theft from the mails amounts to nothing more than proof of non-receipt.

In its casual presentation of this case, the government overlooked an obvious issue, and one easily proved. All that was required was evidence demonstrating that the checks were duly placed in the mails. Cf. United States v. Toliver, 541 F.2d 958, 966 (2d Cir. 1976). We hold that proof of non-receipt, without more, is insufficient even circumstantially to sustain an inference that the checks were stolen from the mails. ⁴ Accordingly, we reverse Robinson's conviction on the possession counts and direct that the indictment on those counts be dismissed. ⁵

II. The Uttering Counts

The uttering counts charge Robinson with negotiating forged Treasury checks, knowing them to be forged, and with intent to defraud the United States. Under 18 U.S.C. § 495, the government must prove "intent to defraud." Thus, specific intent is an essential element of the crime of uttering. United States v. Ellison, 494 F.2d 43 (5th Cir. 1974); United States v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969); Ross v. United States, 374 F.2d 97, 101 (8th Cir.) (Blackmun, J.), cert. denied, 389 U.S. 882, 88 S.Ct. 130, 19 L.Ed.2d 177 (1967). Judge Bartels so charged the jury, but he also charged that,

In determining the issue of intent in this case a jury may reasonably infer, as I said before, that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted.

So, unless the contrary appears from the evidence, the jury may draw the inference that the defendant intended all the consequences which one in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the defendant.

In United States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975), this Court explained that,

We have for many years warned against the use of this type of charge, United States v. Barash, 365 F.2d 395, 402-03 (2d Cir. 1966), and are somewhat surprised at its continued appearance. Given our disposition of this case, there is no need to determine whether the (district court's) erroneous charge constitutes reversible error. We wish, however, to take this opportunity to again stress our disapproval of the "natural and probable consequences" charge and to remind trial judges that its continued use may jeopardize otherwise sound convictions. Id. at 159.

We cannot agree with the government that the charge was "entirely correct." ⁶ However, since defense counsel failed to object to the charge at the time it was given, we must determine the effect of the error. In order to make that determination, an analysis of the nature of the error inherent in the "natural and probable consequences" charge is necessary.

The objectionable nature of the charge was ably summarized in Cohen v. United States, 378 F.2d 751, 755 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967):

The jury may mistakenly believe that it is permissible to infer specific...