United States v. Van Fossen, 15123.

• Decision Date: 16 May 1972
• Docket Number: No. 15123.,15123.
• Citation: 460 F.2d 38
• Parties: UNITED STATES of America, Appellee, v. William Newton VAN FOSSEN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

460 F.2d 38 (1972)

UNITED STATES of America, Appellee, v. William Newton VAN FOSSEN, Appellant.

No. 15123.

United States Court of Appeals, Fourth Circuit.

Argued March 2, 1971.

Decided May 16, 1972.

T. Wilson Hotze, Jr., Richmond, Va. (Court-appointed counsel) Emroch & Hotze, Richmond, Va., on brief, for appellant.

David G. Lowe, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

The principal question on this appeal is whether the presence of William Van Fossen's thumbprints on two photographic negatives and one engraving plate is sufficient to sustain his conviction of possessing plates with intent to use them in counterfeiting federal reserve notes and of printing and photographing likenesses of the notes in violation of 18 U.S.C. § 474 (1970).¹ We hold the evidence is insufficient and reverse his conviction.

The photographic negatives and the engraving plate containing Van Fossen's thumbprint were confiscated by Secret Service agents from Brown's Business Forms, a printing shop located in Richmond, Virginia. The agents also seized counterfeiting equipment and approximately $170,000.00 in counterfeit currency. Roger Leo Brown, the owner and operator of the printing shop, was arrested and subsequently convicted of counterfeiting.

After the raid on the shop, the agents searched a room in Van Fossen's apartment, his wallet, his wife's purse, his car, and his truck. They found no incriminating evidence, but took Van Fossen into custody and fingerprinted him. A comparison of his prints taken at this time with those found on the items seized at the printing shop showed that one print appeared on a plate and another on a negative that had been used in counterfeiting. The negative containing the third print apparently had not been used. The three left thumbprints were the sole evidence presented to link Van Fossen to Brown's illegal activities. At the conclusion of the government's case, Van Fossen moved for a judgment of acquittal. When this was denied, he elected to stand on his motion and presented no evidence.

The government's position is based on two steps. First, it contends that the thumbprints showed Van Fossen had possession of the negatives and plate. Second, since one of the negatives and the plate had been used to counterfeit currency, it asserts that the jury could conclude that Van Fossen had the intent to use the plate for counterfeiting and that he actually made photographs and forgeries of the currency or aided and abetted Brown. Van Fossen urges that the thumbprints are insufficient to show possession and that, in any event, they do not prove either his intention to use the plate or his reproduction of the notes as alleged in the indictment.

Contrary to an earlier rule, circumstantial evidence may support a verdict of guilty even though it does not exclude every reasonable hypothesis consistent with innocence. Holland v. United States, 348 U.S. 121, 126, 75 S.Ct. 127, 99 L.Ed. 150 (1954); White v. United States, 279 F.2d 740, 748 (4th Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 96, 5 L.Ed.2d 74 (1960). The principles that govern our consideration of the sufficiency of the evidence were restated in United States v. Sherman, 421 F.2d 198, 199 (4th Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970):

"In considering the sufficiency of the evidence we do not determine whether it convinces us of guilt beyond a reasonable doubt, but only that the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. . . . The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt. . . . Where the evidence construed most favorably for the government is such that the jury might find the defendant guilty beyond a reasonable doubt, then the evidence is sufficient to sustain a finding of guilt. . . ."

Applying this standard, we recently held that a defendant's fingerprint on a matchbook cover which had been used by thieves to jam a lock did not support a conviction of burglary. Fingerprints on such a readily moveable object were of questionable probative value, we concluded, unless the proof showed they were impressed only during the commission of the crime. United States v. Corso, 439 F.2d 956 (4th Cir. 1971); accord, Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967); Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966). In contrast, this term we upheld a conviction based on fingerprints discovered at a normally inaccessible place adjacent to a rifled money box in a delivery truck. The prints had not been present when the receptacle was examined shortly before the theft. We deemed the evidence sufficient because no stranger could have had a legitimate reason for exploring that part of the truck in the short interval between the earlier investigation and the occurrence of the crime. United States v. Bryant, 454 F.2d 248 (4th Cir. 1972); accord, Stevenson v. United States, 127 U.S.App.D.C. 43, 380 F.2d 590, cert. denied, 389 U.S. 962, 88 S.Ct. 347, 19 L. Ed.2d 375 (1967); Mason v. Commonwealth, 357 S.W.2d 667 (Ky.1962).

Read together, these cases illustrate a well established rule concerning the sufficiency of fingerprint evidence. To warrant conviction the trier of fact must be able to reasonably infer from the circumstances that the fingerprints were impressed at the time the crime was committed. See State v. Smith, 274 N.C. 159, 161 S.E.2d 449, 452 (1968); 3 Wharton's Criminal Evidence § 982 (12th ed. 1955, Supp.1971); Annot. 28 A.L.R.2d 1115, 1150 (1953).

Even if we assume, without deciding, that the fingerprints showed Van Fossen possessed the negatives and the plate, the evidence is insufficient to sustain his conviction. Van Fossen is not charged with simple possession of these items. To secure convictions, the government had to establish Van Fossen's intent to use the plate illegally, and that he photographed and printed the counterfeit money, or aided and abetted another person in the commission of the crime. The flaw in the government's case is the failure of the evidence to disclose when the crime was committed and when Van Fossen's fingerprints were placed on the items seized from Brown's shop. For this reason the prosecution rests on conjecture and suspicion. Because no evidence in the record suggests that the prints were impressed when the crime was committed, the jury could only have guessed at this conclusion.

The evidence discloses that Brown also ran a legitimate print shop employing several persons. While the counterfeit paraphernalia were found in an unlocked safe at the time of the raid, the government introduced no evidence to show that the items bearing Van Fossen's prints were previously unavailable to a person in Brown's shop on legitimate business. In fact, the negatives and the plate contained other, unidentified prints. Moreover, no evidence was introduced to show that Van Fossen knew the items he touched were contraband.

The voids in the proof, which can be filled only by speculation, suffice to invalidate the conviction. Apart from them, two other facts tend to exculpate Van Fossen. The search of his person and property immediately after the raid on the shop furnished no evidence that incriminated him. And an undercover agent, who participated in Brown's arrest, offered in his testimony no evidence to connect Van Fossen with Brown's criminal activities.

The three cases on which the government relies are readily distinguishable. In United States v. Browning, 390 F.2d 511 (4th Cir. 1968), and United States v. Kelley, 186 F.2d 598 (7th Cir.), cert. denied, 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375 (1951), the defendants were apprehended passing counterfeit bills under circumstances that indicated they knew of the forgery. In each case there was sufficient evidence beyond mere possession of the bills to establish the commission of the crime. In short, conviction in those cases was sustained on the type of evidence that is lacking here. In United States v. Pisano, 193 F.2d 361 (7th Cir. 1951), the defendant was convicted of illegally dealing in narcotics solely because his fingerprints were on a package of heroin and on a paper found in a suitcase containing drugs. The court emphasized, however, that "under the charging statutes, the sometimes troublesome elements of intent are not here involved, for possession alone is sufficient for conviction." 193 F.2d at 365.² Pisano was prosecuted for violating a statute under which possession of unlawful narcotics created a prima facie presumption of guilt and placed on the accused the burden of explaining his possession to the satisfaction of the jury. Here the government is not armed with a similar presumption, and the "troublesome element" of Van Fossen's intent requires proof.

We need not consider Van Fossen's other assignment of error. The evidence is insufficient to prove his criminal intent and participation in Brown's counterfeiting operation. His motion for judgment of acquittal should have been granted. The conviction is reversed, and the case is remanded for dismissal of the indictment.

Reversed and remanded.

BOREMAN, Senior Circuit Judge (dissenting):

The fingerprint evidence clearly indicated that appellant had handled a plate and two photographic negatives which were found at the site of a large counterfeiting operation. There was no evidence, either direct or circumstantial, as to when or where appellant touched the items. The Government admits that the prints on the plate and negatives constituted the only evidence linking the appellant with the counterfeiting operation. However, viewing the evidence in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed....