482 F.2d 1162
UNITED STATES of America, Appellee,
Henry David BLOOM, Appellant.
United States Court of Appeals,
Submitted Feb. 16, 1973.
Decided July 25, 1973.
Rehearing and Rehearing En Banc Denied Aug. 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.
Henry David Bloom appeals from a conviction, based upon a jury verdict, of violating the provisions of 18 U.S.C. Secs. 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. Sec. 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. Sec. 2315. We affirm the judgment of conviction with regard to both charges.
18 U.S.C. Sec. 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, Sec. 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 sufficent 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.