United States v. Barnes, No. 72-1106.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBROWNING, ELY, and KILKENNY, Circuit
Citation466 F.2d 1361
Decision Date04 December 1972
Docket NumberNo. 72-1106.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Edward BARNES, Defendant-Appellant.

466 F.2d 1361 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
James Edward BARNES, Defendant-Appellant.

No. 72-1106.

United States Court of Appeals, Ninth Circuit.

August 22, 1972.

Certiorari Granted December 4, 1972.


466 F.2d 1362

Malcolm H. Mackey, Los Angeles, Cal., for defendant-appellant.

William D. Keller, U. S. Atty., Richard A. Stilz, Eric A. Nobles, Asst. U. S. Attys., for plaintiff-appellee.

Before BROWNING, ELY, and KILKENNY, Circuit Judges.

Certiorari Granted December 4, 1972. See 93 S.Ct. 544.

ELY, Circuit Judge:

Barnes appeals from his conviction, by a jury, on six charges arising out of his alleged efforts to forge and utter stolen United States Treasury checks. Two of the counts related to Barnes' possession of stolen mail (i. e., the checks), in violation of 18 U.S.C. § 1708. The other four concerned violations of 18 U.S.C. § 495, two for forging endorsements on the checks, and two for depositing those forged instruments into a bank account. Barnes challenges all six convictions.

Those under section 1708 are attacked on two grounds. First, Barnes contends that the evidence was insufficient. There is no merit to this contention. At trial the prosecution demonstrated, or Barnes conceded, that (1) the checks involved were stolen from the mails between July 1st and 8th, 1971; (2) on July 8, 1971, Barnes deposited the checks in an account opened only a month earlier under the name of "Clarence Smith," and (3) both the payees' and "Smith's" endorsements were written by Barnes. When this evidence is viewed, as it must be, in the light most favorable to the Government, it is more than adequate to sustain the prosecution's case. The jury could justifiably determine, from his actions, that Barnes knew the checks had been stolen; thus, the conviction was supported by the evidence. See United States v. Gardner, 454 F.2d 534 (9th Cir. 1972).

Barnes' other argument is that the District Court erred in instructing the jury that it might infer, from the fact that Barnes possessed recently stolen checks, that he knew they had been stolen.1 He argues that that instruction,

466 F.2d 1363
upon which the jury may have relied in reaching the guilty verdicts, violates both his Fifth Amendment due process rights and his privilege against self-incrimination. Under his theory, the former were violated because the allowed inference not only shifted the burden of proof on the issue of knowledge from the Government to him, but also that it does not reflect the required nexus between the fact proved and the fact inferred. Cf. Leary v. United States, 395 U.S. 6, 89...

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2 practice notes
  • Barnes v. United States 8212 5443, No. 72
    • United States
    • United States Supreme Court
    • June 18, 1973
    ...§ 1708 requires only knowledge that the Page 838 checks were stolen, and not knowledge that they were stolen from the mails. P. 847. 466 F.2d 1361, affirmed. Malcolm H. Mackey, Los Angeles, Cal., for petitioner. Daniel M. Friedman, Washington, D.C., for respondent. Mr. Justice POWELL delive......
  • United States v. Folsom, No. 72-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 8, 1973
    ...Circuit in Dyer Act cases. United States v. Johnson, 466 F.2d 537 (CA8 1972) (and cases cited at 538). But see, United States v. Barnes, 466 F.2d 1361 (CA9 1972), cert. granted, 409 U.S. 1037, 93 S.Ct. 544, 34 L.Ed. 2d 486 (1973). Under the instruction the jury was entitled to disbelieve ap......
2 cases
  • Barnes v. United States 8212 5443, No. 72
    • United States
    • United States Supreme Court
    • June 18, 1973
    ...§ 1708 requires only knowledge that the Page 838 checks were stolen, and not knowledge that they were stolen from the mails. P. 847. 466 F.2d 1361, affirmed. Malcolm H. Mackey, Los Angeles, Cal., for petitioner. Daniel M. Friedman, Washington, D.C., for respondent. Mr. Justice POWELL delive......
  • United States v. Folsom, No. 72-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 8, 1973
    ...Circuit in Dyer Act cases. United States v. Johnson, 466 F.2d 537 (CA8 1972) (and cases cited at 538). But see, United States v. Barnes, 466 F.2d 1361 (CA9 1972), cert. granted, 409 U.S. 1037, 93 S.Ct. 544, 34 L.Ed. 2d 486 (1973). Under the instruction the jury was entitled to disbelieve ap......

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