LAY, Circuit Judge.
Defendant was convicted and sentenced for armed robbery of a federally insured bank under 18 U.S.C. § 2113(d).
The facts show that on February 21, 1967, the Bank of Minneapolis and Trust Co. was robbed by two armed men at approximately 3:00 p. m. who placed the lives of the bank tellers in jeopardy. These men wore ski masks and were further identified by weight and height. Significant here is the fact that six government witnesses testified that the defendant was not one of the two men who perpetrated the robbery. Defendant was arrested in Kansas City, Missouri, February 22, 1967, on a misdemeanor charge arising from the use of an allegedly expired out state license plate. At the time of his arrest defendant had attempted to purchase another car from Motor City Motors in Kansas City, Missouri, by trading in his 1964 green and white Buick Wildcat, bearing Kansas license plates WY 64853. The Kansas license WY 64853 had been issued to Eddie Jones of Kansas City who was a friend of the defendant's mother. The plates had been discarded by Eddie Jones sometime before the incident in question. Defendant gave the salesman one hundred five-dollar bills as a deposit. According to the salesman, he gave his name as Eddie Jones and said he had won the money in a "crap game" the night before. The serial numbers on fourteen of these bills matched the serial numbers on "bait money" taken from the No. 1 teller cage in the Bank of Minneapolis during the robbery.
At approximately 10:30 a. m. on the morning of the robbery, the defendant and two unidentified men were seen in front of another bank in Minneapolis. All three men were observed "peering" into the bank. According to the defendant he returned to his car while the
Defendant took the stand and denied any implication or involvement in the robbery. He testified he was a "pool hustler" and used fictitious names wherever he traveled in order to avoid identification. He stated that he had won the money given to the used car salesman by gambling in pool games in Minneapolis. He identified the places he played. He stated he told the car salesman he had won the money gambling and denied that he said he had won it in a "crap game."
There are no other facts or circumstances linking the defendant to the robbery itself. The question is whether the facts proven are sufficient to sustain defendant's conviction of armed robbery by placing lives in jeopardy under § 2113 (d). The government relies upon the inference of theft by reason of the proof of defendant's recent possession of stolen property. The relevant charge of the court is set out below.
Since the possession relates to the theft itself, guilt may be inferred for the more aggravated crime associated with the theft, as in Wilson, where the defendant was tried for murder. See e. g., Jenkins v. United States, 361 F.2d 615 (10 Cir. 1966) (burglary).
The origin of the rule is somewhat uncertain. Early English cases make liberal reference to it. Reg. v. Cockin, 2 Lew C.C. 235 (1836). The rule was well stated in Reg. v. Exall, 4 F. & F. 922, 926-927 (1866):
The rule is discussed as early as 1716 in 2 East's, Pleas of the Crown 656; and in 2 Hale's, Pleas of the Crown 289 (1736). This former authority reads:
The rule is discussed at length in early American cases. See Commonwealth v. Millard, 1 Mass. 6 (1806); State v. Smith, 24 N.C. 402 (1842); Cook v. State, 84 Tenn. 461 (1886); Knickerbocker v. People, 43 N.Y. 177 (1870); State v. Raymond, 46 Conn. 345 (1878). See also the annotation in 101 Am.St. R. 481-524. Today the doctrine receives general acceptance without explication. The rational connection of the inference from the fact proven is universally assumed and is not here questioned. Presently, however, when the instruction utilizes the word "presumption" rather than "inference" it finds a checkered rejection. Cf. Bollenbach v. United
Notwithstanding the recognized validity of the inference, early cases and writers reflect guarded circumspection in the use of the doctrine. As said in State v. Smith, 24 N.C. 402, 408-409 (1842):
And in the early but noted work by Wills on Circumstantial Evidence 62-63 (6 Am. ed.1886), the author observed:
Most modern authorities adopt these early principles by either holding or implying that the inference from recent possession of stolen property must in some way be corroborated by other circumstantial factors as to the crime charged to sustain a finding of sufficiency of evidence. See e. g., Torres v. United States, 270 F.2d 252, 258-259 (9 Cir. 1959); Van Gorder v. United States, 21 F.2d 939 (8 Cir. 1927); Wolf v. United States, 290 F. 738 (2 Cir. 1923). Cf. Burke v. United States, 388 F.2d 286 (8 Cir. 1968); Anderson v. United States, 406 F.2d 529 (8 Cir. 1969); Latham v. United States, 407 F.2d 1 (8 Cir. 1969). And see discussion in Underhill v. State, 70 Okl.Cr. 39, 104 P.2d 447, 449-450 (1940). We reaffirm this principal here.
Defendant, in attacking the sufficiency of the government's evidence, contends that the possession of the bank money and all other evidence supports with equal consistency (1) an inference of guilt as to the robbery itself, or (2) an inference of guilt of only possessing property with the knowledge that it was stolen, see 18 U.S.C. § 2113(c).
We are not here faced with a record governed by the "lesser included offense" rule. This doctrine permits a jury on the evidence submitted to choose between a greater and lesser offense.
This circuit has held in many cases, most recently in United States v. Pope, 415 F.2d 685 (8 Cir. August 27, 1969) and United States v. Francisco, 410 F.2d 1283 (8 Cir. 1969), that a trial court need not instruct in a case based upon
See also Barnes v. United States, 341 F.2d 189 (5 Cir. 1965); McMillian v. United States, 399 F.2d 478 (5 Cir. 1968); Whaley v. United States, 362 F.2d 938 (9 Cir. 1966); Woxberg v. United States, 329 F.2d 284 (9 Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33. As the Fifth Circuit recently announced in Harper v. United States, 405 F.2d 185, 186 (5 Cir. 1969):
This circuit, long after Holland, has applied this test in weighing the legal sufficiency of circumstantial evidence. See e. g., Byrth v. United States, 327 F.2d 917 (8 Cir. 1964), where a panel of judges composed of Judge Van Oosterhout (now Chief Judge), Judge Matthes and Judge Mehaffy said:
See also Wood v. United States, 361 F.2d 802, 805 (8 Cir. 1966), where this court compares the instruction with "the standard we have applied in testing the sufficiency of the evidence."
Notwithstanding the Holland rule, the principles relied on here are certainly still applicable to criminal cases. Where the government's evidence is equally as strong to infer innocence of the crime charged, as it is to infer guilt, we are not dealing in the realm of credibility, but legal sufficiency and a court has the duty to direct an acquittal. As
In any event, under any standard, we hold there exists no substantial evidence to sustain proof that the defendant here was guilty of the crime charged beyond a reasonable doubt.
In the instant case, no fact or circumstance proves that defendant participated in the actual robbery or acted as an accessory by aiding and abetting, other than his recent possession of the stolen money. Defendant's presence in Minneapolis, his association with other unidentified men, his use of fictitious names, or of illegal license plates, do not connect him with the robbery itself. These facts are as relevant to the crime charged as they are to the lesser offense of illegal possession. Moreover, in the instant case the government has proven by six witnesses that the defendant did not engage in the actual robbery itself. The government relies upon the argument that an aider and abettor is as guilty as the principal. See Nassif v. United States, 370 F.2d 147 (8 Cir. 1966); Latham v. United States, 407 F.2d 1 (8 Cir. 1969); Pigman v. United States, 407 F.2d 237 (8 Cir. 1969). The difficulty with this argument is threefold: (1) there is no fact which in any way connects defendant with any act of participation in the robbery itself, (2) there is no evidence that anyone in any way aided or abetted the two identified men involved in the robbery and (3) there is no corroborative circumstance beyond possession of the bills which in any way ties the defendant to the crime itself. The crime of aiding and abetting under 18 U.S.C. § 2 requires more than a bare suspicion that one participated in the robbery. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Baker v. United States, 395 F.2d 368 (8 Cir. 1968); Johnson v. United States, 195 F.2d 673 (8 Cir. 1952); cf. United States v. Cappabianca, 398 F.2d 356 (2 Cir. 1968); United States v. Garrett, 371 F.2d 296 (7 Cir. 1966); Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793 (1965); Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954).
In the instant case the government's proof negatives the inference of defendant's actual participation in the robbery itself. Under the circumstances the inference of guilt supports as consistently the lesser offense of receiving and possessing stolen goods with knowledge of their being stolen. We hold the government has failed to sustain a charge of aiding and abetting in the more aggravated offense of armed robbery under § 2113(d). If a defendant's guilt of an aggravated crime is as inferentially consistent with a lesser offense, the inference of his guilt of the aggravated offense is as consistent with his innocence to that offense.
Although the evidence is insufficient to convict the defendant of the crime charged, there is substantial evidence to sustain defendant's guilt of the lesser offense under § 2113(c). However, defendant was not charged with violation of this separately defined offense. Prosecution of the defendant under § 2113(c) is still available to the government to pursue if it chooses.
BLACKMUN, Circuit Judge (dissenting).
For me, on the sufficiency of the evidence issue, this is only a simple and routine case, hardly deserving of great scholastic labor with historical references and cases from past centuries.
I must concede that the prosecution's case is a comparatively thin one. I must also concede that, in hindsight and in the light of what developed at the trial, the United States Attorney might have been better advised to prosecute Jones under 18 U.S.C. § 2113(c) rather than under § 2113(a) and (d). But, even with these concessions, I cannot agree that, as a matter of law, this bank robbery conviction must be nullified and the defendant acquitted on the ground that the evidence is insufficient.
It seems to me that if, as Judge Lay argues, the inference permissible from the possession of marked currency stolen only the day before from the victimized bank required corroboration (a conclusion in which I am not yet entirely willing to participate), that corroboration is definitely present in the aggregate of facts, taking, of course, as I feel the majority fail to do, the evidence in the light favorable to the government as the prevailing party. United States v. Lodwick, 410 F.2d 1202, 1204 (8 Cir. 1969). The facts thus measured are: (1) Jones' arrival in Minneapolis shortly before the robbery (at one point he testified it was 11 p. m. on February 10; at another he said it was 5 or 6 a. m. on February 20). (2) His possessing and using a Kansas license plate to which he was not entitled. (3) His renting an apartment that very morning and doing so under a fictitious name. (4) His being accompanied, in that rental, by two other Negroes, one of whom was tall. (5) His further association with two other Negroes, one of whom was tall, that same morning and their joint and suspicious peering into a bank in downtown Minneapolis. (6) The departure of Jones and one of those men in the direction of the victimized bank, leaving the other man in the car, and their return to Jones' automobile. (7) The actions of the three being strange and unusual enough to prompt a stranger in an adjacent parked car to take the trouble to write down their license number. (8) The 3 p. m. robbery of the bank by two Negroes, one of whom was tall, with lives of persons placed in jeopardy by the use of weapons. (9) Jones' unemployment for 3½ months preceding the robbery and his failure to make required payments upon his automobile. (10) His sudden affluence coincidental with the robbery. (11) His departure from Minneapolis and Minnesota within a few hours of the robbery to return to Kansas City
It seems to me that the listing of these factors discloses that it is a mistaken analysis to conclude that the facts proved by the government tend no more than equally to show a violation of § 2113(c) and a violation of § 2113(a) and (d). Instead, they tend to show more than the mere possession of money knowingly stolen from a bank, which is all that § 2113(c) requires. They tend to show aiding and abetting the armed robbery of that bank by the two other men. For me, therefore, the submission to the jury of the issue of a violation of § 2113(a) and (d) was fully justified by the evidence.
In passing, I might also say that I am disturbed by the majority's seeming circumlocution of Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). I had thought that in that case the Supreme Court flatly rejected the theretofore often used expression that circumstantial evidence must be such as to exclude every reasonable hypothesis other than guilt, and had said, p. 140, 75 S.Ct. p. 137, that "[c]ircumstantial evidence in this respect is intrinsically no different from testimonial evidence." I also thought that this court more than once had recognized the controlling character of Holland. United States v. Francisco, 410 F.2d 1283, 1286 (8 Cir. 1969); United States v. Kye, 411 F.2d 120, 122 (8 Cir. 1969); United States v. Lodwick, supra, 410 F.2d at 1204.
I therefore cannot join the majority in their reversal of this bank robbery conviction, typified by Judge Lord as "amply justified," on the ground of insufficient evidence.
"And possession of property recently stolen, if not satisfactorily explained, is also ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property.
"Ordinarily, the same inferences may reasonably be drawn from a false explanation of possession of recently-stolen property.
"Whether or not any explanation here is false is for you to determine. I am only stating what the law is.
"The term `recently' is a relative term. I say `property recently stolen.' Now, I am defining for you; what do you mean by `recently stolen'? The term `recently' is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
"If the jury should find beyond a reasonable doubt from the evidence in the case that the money described in the indictment was stolen, and that, while recently stolen, the property was in the possession of the accused, the jury would ordinarily be justified in drawing from those facts the inference, not only that the money was possessed by the accused with the knowledge that the property was stolen, but also that the accused participated in some way in the theft of the property, unless possession of the recently-stolen property by the accused is explained to the satisfaction of the jury by other facts and circumstances in evidence in the case.
"In considering whether possession of recently-stolen property has been satisfactorily explained, the jury will bear in mind that, in the exercise of constitutional rights, the accused need not take the witness stand and testify. Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.
"It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits the jury to draw from possession of recently-stolen property.
"The mere fact that I tell you that possession authorizes you to draw the inference does not mean that I am instructing you to draw the inference. All I am saying is that you may draw the inference from that possession if you find according to these instructions I have already given.
"Now, if any possession the accused may have had of recently-stolen property is consistent with innocence, the jury should acquit the accused."
The principle involved is that to hold otherwise would allow the jury to choose between the two offenses in order to determine punishment, a duty traditionally belonging to the judge. Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 39 L.Ed. 343 (1895).
It would appear that these inferences arose at common law because of the similar characteristics of the crimes of larceny and that of receiving stolen merchandise. As stated in Kasle v. United States, 233 F. 878, 888 (6 Cir. 1916):
Cf. Milner v. United States, 293 F. 590 (5 Cir. 1923). The two inferences brought forth extensive discussion in the early case of Reg. v. Langmead, 10 L.T.R. (N.S.) 351 (1864), where Pollock, C.B., said:
In the same case Judge Blackburn approached the instant problem when he said:
However, the substantive difference between the crimes of robbery and receipt later caused Judge Pollock in Reg. v. Exall, 4 F. & F. 922, 925, to say:
And in a footnote in the same case, he added:
Wills, the early commentator on circumstantial evidence observed:
We are not faced with a charge of simple larceny here. The indictment alleges a crime of much graver consequence, of armed robbery by placing lives in jeopardy. This offense carries a punishment of 25 years. Nor is it material here that the defendant received less than the maximum a 12-year sentence. The punishment of wrongful possession under § 2113(c) is 10 years.
If there were indication of the availability of additional evidence, this court has the authority under 28 U.S.C. § 2106 to remand for a new trial even under the offense charged. Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). However, we are satisfied that justice will be better served to have the government proceed anew under § 2113(c). The statute of limitations has not barred such prosecution, nor is such charge subject to the defense of double jeopardy. Cf. Orlando v. United States, 377 F.2d 667 (9 Cir. 1967), dismissed at the request of the government, 387 F.2d 348 (9 Cir. 1967).