United States v. Bloom

• Decision Date: 25 July 1973
• Docket Number: No. 72-1421.,72-1421.
• Citation: 482 F.2d 1162
• Parties: UNITED STATES of America, Appellee, v. Henry David BLOOM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

482 F.2d 1162 (1973)

UNITED STATES of America, Appellee, v. Henry David BLOOM, Appellant.

No. 72-1421.

United States Court of Appeals, Eighth Circuit.

Submitted February 16, 1973.

Decided July 25, 1973.

Rehearing and Rehearing Denied August 20, 1973.

P. Terence Crebs, St. Louis, Mo., on brief for appellant.

Daniel Bartlett, Jr., U. S. Atty., Terry I. Adelman and David W. Harlan, Asst. U. S. Attys., St. Louis, Mo., on brief for appellee.

Before HEANEY and ROSS, Circuit Judges, and BENSON, Chief District Judge.

Rehearing and Rehearing En Banc Denied August 20, 1973.

PER CURIAM.

Henry David Bloom appeals from a conviction, based upon a jury verdict, of violating the provisions of 18 U.S.C. §§ 1708 and 2315. Count I, of the two count indictment, charged unlawful possession of a credit card stolen from the United States mails, knowing the same to be stolen, 18 U.S.C. § 1708. Count II charged unlawful receipt and concealment of certain falsely made, forged and counterfeited securities, to-wit: four counterfeit American Express Travelers checks, which were moving as, or were a part of, interstate commerce, 18 U.S.C. § 2315. We affirm the judgment of conviction with regard to both charges.

18 U.S.C. § 1708

Bloom first argues that the district court erred in denying his motion for judgment of acquittal because the Government improperly relied upon an inference upon an inference in an attempt to establish that the credit card was stolen from the United States mail—an element that the Government must prove beyond a reasonable doubt.

Parenthetically, Bloom's attempt to phrase his argument in terms of the "inference upon an inference" analysis seems to be an attempt to avoid the invocation of the sufficiency of the evidence rule. Clearly when faced with a sufficiency of the evidence question this Court is required to take the evidence in a light most favorable to the Government with all reasonable inferences which may be drawn therefrom. See e. g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Matzker, 473 F.2d 408, 410 (8th Cir. 1973). Scholars are uniformly critical of the inference upon an inference analysis. See e. g., 1 J. Wigmore, Wigmore on Evidence, § 41 at 434-435 (3 ed. 1940). Although this Court has applied such reasoning before, see e. g., Brady v. United States, 24 F.2d 399, 403-404 (8th Cir.), cert. denied, 278 U.S. 603, 49 S.Ct. 10, 73 L.Ed. 531 (1928), the better reasoning would seem to suggest that the proper inquiry is whether the inference to be drawn turns on a fact regardless of whether such fact has been arrived at by direct or circumstantial evidence. See e. g., Peterson v. United States, 411 F.2d 1074, 1077-1078 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L. Ed.2d 199 (1969). In any event, the evidence in this case was sufficient to allow the jury to find that the card had been stolen from the mails and the inferences from the facts proven were not so attenuated as to render the drawing of such inferences improper.

The evidence indicated that the credit card at issue was mailed on March 14, 1972. The name on the card was James P. Cullen, and it was placed in a mail bag with a "zip sort number" applicable to New York, New York. This evidence was derived from the testimony of the manager of accounts control for the American Express Company and was predicated upon records kept in the usual course of business. This testimony was highly probative evidence that the card had been mailed. See e. g., Whiteside v. United States, 346 F.2d 500, 504 (8th Cir. 1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1946, 16 L.Ed.2d 1025 (1966).

Mr. James P. Cullen testified that although he expected a renewed American Express Credit Card in March of 1972, at his office in New York, New York, he did not receive the card. Expected receipt of mail, but non-receipt, is evidence which the jury might properly consider as bearing on the question of whether the card had been stolen from the mails. See e. g., Whitehorn v. United States, 380 F.2d 909, 912 (8th Cir. 1967).

Joanne Warner testified that she was employed on April 8, 1972, at a motel in the St. Louis area when Bloom represented himself as being James P. Cullen, registered for a room, and indicated that he would pay by credit card. The credit card was the one at issue here. Mr. Cullen testified that the card bore his name and a forgery of his signature. The shortness of time between the mailing and the false use of Mr. Cullen's name on the credit card was competent evidence for the jury to consider in determining whether the card had been stolen from the mails. See e. g., United States v. Halprin, 450 F.2d 322 (9th Cir. 1971), cert. denied, 405 U.S. 994, 92 S. Ct. 1267, 31 L.Ed.2d 462 (1972).

As Chief Judge Matthes has recently said:

"While it may be theoretically possible that the cards were stolen from the plant before mailing or from the funeral home after receipt, the prosecution need not affirmatively disprove every conceivable alternative theory. United States v. Mooney, 417 F.2d 936, 938 (8th Cir. 1969), cert. denied, 397 U.S. 1029, 90 S.Ct. 1280, 25 L.Ed. 2d 541 (1970); United States v. Zimple, 318 F.2d 676, 680 (7th Cir.), cert. denied, 375 U.S. 868, 84 S.Ct. 128, 11 L.Ed.2d 95 (1963). Where, as here, a letter containing a credit card was properly mailed and never received by the addressee but the card was found in quite improper and misusing hands it can be found that the card had been stolen from the mails in the absence of any other explanation being proffered. The jury need not grasp for improbable explanations, but may make common-sense inferences from the proven facts in both civil and criminal cases. See United States v. Hines, supra, 256 F.2d 561 at 562 (2 Cir.). Since here the uncontroverted evidence clearly shows the addressee never received the card, and shows the card turned up in improper hands, the only arguable point is the sufficiency of the evidence proving the card was mailed. We think that evidence was sufficient." United States v. Matzker, supra, 473 F.2d at 411.

Second, Bloom objects to the following instruction:

"Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may also reasonably draw the inference and find in the light of surrounding circumstances that the person in possession knew the property had been stolen.

. . . . . .

If you find from the evidence beyond a reasonable doubt that the American Express Credit Card described in the indictment was stolen, and that, while recently stolen, the credit card was in the possession of the accused, the jury would be justified in drawing from those facts the inference that the credit card was possessed by the accused with knowledge that the property was stolen, unless possession by the accused of the recently stolen property is explained to the satisfaction of the jury by other facts and circumstances in evidence."

Bloom argues that there was no direct evidence of mailing and no direct evidence of theft. From this premise Bloom argues that the above instruction improperly allowed the jury to infer that the card was mailed, was stolen, and was possessed with knowledge, simply on the basis that Bloom possessed the card. Thus, according to Bloom, the instruction allowed for an inference upon an inference upon an inference.

We note that the trial judge carefully pointed out the essential elements of the offense: stolen from the mails, unlawful possession, knowledge that the card was stolen.¹ The court emphasized that the burden of proof rested at all times with the Government and stressed that Bloom was not required to testify.

The instruction, commonly known as a "possession of recently stolen property" instruction, see 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 13.12 at 287-288 (1970), has explicitly or implicitly been approved by this Court in varying contexts. See e. g., United States v. Sargis, 460 F.2d 1329, 1330 & n. 3 (8th Cir. 1972); United States v. Watson, 450 F.2d 290, 291 & n. 1 (8th Cir. 1971), cert. denied, 405 U.S. 993, 92 S.Ct. 1266, 31 L.Ed.2d 462 (1972); United States v. Brotherton, 427 F.2d 1286, 1288 (8th Cir. 1970); United States v. Jones, 418 F.2d 818, 820-821 & n. 2 (8th Cir. 1969); Anderson v. United States, 406 F.2d 529, 535 (8th Cir. 1969); Minor v. United States, 375 F.2d 170, 173 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177 (1967); Lee v. United States, 363 F.2d 469, 474 (8th Cir.), cert. denied, 385 U.S. 947, 87 S.Ct. 323, 17 L.Ed.2d 227 (1966); Cloud v. United States, 361 F.2d 627, 629-630 (8th Cir. 1966).

The Supreme Court has recently considered such an instruction in a case very nearly identical to this one. In Barnes v. United States, supra, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380, the defendant was convicted on two counts of possessing United States Treasury checks stolen from the mails, knowing them to be stolen, two counts of forging the checks, and two counts of uttering the checks. The trial court instructed the jury that ordinarily it would be justified in inferring from unexplained possession of recently stolen mail that the defendant possessed the mail with knowledge that it was stolen. Id., at 840 n. 3, 93 S.Ct. 2357 n. 3. In upholding the instruction the Court detailed an "impressive historical basis" for the instruction, and said:

"The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possesson consistent with innocence. On the basis of this evidence alone common sense and experience tells us that petitioner must have known or been aware of the high probability that the checks were stolen. . .

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