Following a jury trial, Joseph L. Gallo (appellant) of Alexandria, Virginia, a dealer in antiques, coins and stamps (Tr. 145) was convicted of transporting in interstate commerce certain stolen gold coins of a value in excess of $5,000, knowing the same to have been stolen, in violation of the first paragraph of 18 U.S.C. § 2314. He appeals from the judgment of the court sentencing him to three (3) years probation and a fine of $2,000.
I. THE ADMISSION OF EVIDENCE OF A SUBSEQUENT PURCHASE OF STOLEN STAMPS
Gallo’s first point, which we find unconvincing, is his contention that the trial court committed error when it admitted evidence of a subsequent $4,000 purchase by Gallo of a stamp collection stolen in the break-in. The stamp purchase was consummated two months after he bought the stolen coins. Since the indictment of Gallo did not include any offense with respect to the stolen stamps, he contends that the admission of this evidence was improper and irrelevant. 1 He had properly objected to the introduction of such evidence at trial (Tr. 4).
The evidence, which is objected to, was admitted to support the Government’s claim that Gallo knew that the coins, when he transported them, had been stolen.
Such testimony was given by the three thieves, Messrs. Bailey, Minossi and Blankenship, who testified as follows: In October, 1974, they went to Appellant’s shop with the stamp collection they had stolen from the Philipp’s residence on August 29, 1974, which was the occasion when they also stole the coins (Tr. 72). Despite efforts to cut Mr. Philipp’s name off each page of stamps, they missed a few pages and, according to their testimony, the Appellant, while examining the stamps, saw Mr. Philipp’s name and cut it out. (Tr. 81, 121, 161). Thus, he knew the stamps came from Philipp. In his argument to the jury the prosecutor made three passing references to the “stamps” (Tr. 322, 324).
With respect to this evidence of the subsequent purchase by Gallo of the stamp collection the court charged the jury:
The indictment does not charge the defendant with stamps or income tax evasion or anything of that sort, so you are not to consider that in this matter. The only charge is the matter of gold coins, and so you would make all of your determinations of his innocence or guilt upon that alone.
(Tr. 359-360).
Gallo also argues that the stamp sale testimony, even if relevant, was cumulative on the issue of knowledge and unnecessarily prejudicial.
The other testimony from which the jury could conclude that the Appellant had knowledge of the stolen character of the coins on August 30,1974 when he purchased them, was as follows: Mr. Blankenship had testified that prior to August, 1974, he mentioned the Philipp’s coin collection to the Appellant, who said he knew the collection and wanted it (Tr. 148); that he had previously sold stolen goods to Gallo (Tr. 147-48); that during the night (Tr. 113) 2 of August 29, 1974, following the afternoon break-in, he called the Appellant, told him he had the coin collection and was told by Gallo to come down to the store at 10:30 a. m., the following morning (Tr. 152). In *364 addition, the testimony; of Bailey, Blankenship and Minossi indicated that on August 30, 1974, Gallo stripped Jack Philipp’s name off certain coin books and then stated that Jack Philipp was deceased (Tr. 78, 79, 119, 158, 159) and his widow “doesn’t need the money anyway” (Tr. 119). This testimony supports an inference that on August 30, 1974 the Appellant had knowledge of the source and character of 'the coins.
We agree that evidence disclosing the commission of another offense should be excluded, even though relevant, if the value of the evidence is limited and the danger of prejudice is great,
Devore v. United States,
This evidence must be viewed in the context of Blankenship’s testimony that he had discussed the Philipp collection with appellant prior to the burglary; that appellant had instructed Blankenship to bring that collection to him when Blankenship got it; that Blankenship called appellant on the night of the burglary to report his having obtained the collection; and appellant’s conversations with the thieves on the day after the burglary regarding the fact that the deceased, Mr. Philipp, no longer had any need of the collection.
Govt. Br., p. 13.
Gallo relies on
Witters v. United States,
the subsequent happenings cannot throw light upon the knowledge of the defendant on that prior occasion. The opinion of the court is that upon the question of knowledge the cases, properly interpreted, make evidence of other offenses admissible only when it relates to prior offenses or to situations in which the offenses occurred both prior and subsequent to the offense charged in the indictment, and that, consequently, the admission of the evidence of subsequent offenses for the purpose of showing knowledge was fatally prejudicial and necessitates a reversal of the judgment.
In a prosecution for receiving stolen property, guilty knowledge is the gist of the offense, and evidence of other crimes is admissible to establish such knowledge. It is permissible to show that the accused had . . . purchased other property which was stolen from the same person either before or after the crime charged. (Footnotes omitted.)
1 Wharton’s Criminal Evidence § 244, pp. 552-53.
The cited case is
State v. Addison,
As to the contention that the evidence is not relevant because a subsequent act cannot be probative of a prior state of mind, we believe that it can be in circumstances where the subsequent act is recent and in some material way is connected with the prior event. This is such a case. The testimony disclosed that the stamp collection was stolen by the same thieves at the same time that they stole the coins; the stamps were originally offered to Gallo at the same time as the coins but at that time Gallo declined buying them, saying, “. . .he couldn’t handle them right then, to bring them in later" (Tr. 80, 119-120, emphasis added); and pursuant to this direction the thieves did bring in the stamps about six weeks or two months later (Tr. 80, 120), when Gallo bought them. Therefore, the purchase of the stamps by Gallo from the same thieves a short time after the coin purchase was merely an acceptance of an earlier proffer Gallo had made to the same men to purchase the stolen stamps. The stamp sale was thus connected with the coin sale in several respects and we find the testimony thereof to be relevant and probative on Gallo’s state of mind as it existed at the time he transported the goods in interstate commerce.
Thus, we do not read Gallo’s interpretation of
Witters
as controlling this case.
United States v. Braverman,
Nor can we agree that the evidence concerning the stamp sale was “cumulative and unnecessarily prejudicial.” Gallo Brief, pp. 12-13. Such assertion implies that the other evidence on knowledge was more than sufficient. We agree that it was, but we do not find the stamp sale testimony to be improperly cumulative. The Government has a heavy burden of proof beyond a reasonable doubt as to all elements of the offense, and it is not to be restricted to a modest quantum of evidence that will support the indictment.
Gallo also contends that the court’s instruction did not adequately “cure” the admission of the evidence. However, as we read the instruction, it was never intended as a curative instruction. It merely cautioned the jury that the only offense with which appellant was charged was the transportation of the gold coins, and that the jury should not convict him on the coins charge because of the evidence that he had purchased the stolen stamps.
It should also be noted that Gallo did not object to this instruction at any time during the trial, and it is clear that the probative effect of the evidence was not outweighed by its prejudicial effect. The testimony concerning the subsequent transaction was extremely modest and not overdone or overemphasized either in testimony or in argument.
*366 II. THE INSTRUCTION ON KNOWLEDGE THAT THE GOODS WERE STOLEN
The statute which Gallo is charged with violating provides:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . . Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 2314. 4 (Emphasis added).
In charging the jury as to how it should determine whether Gallo knew that the coins were stolen the Court instructed as follows:
The essential elements of the offense of interstate transportation of stolen property, each of which the Government must prove beyond a reasonable doubt, are:
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3. That at the time the defendant transported it, or caused it to be transported in interstate commerce, he knew it to be stolen or converted;
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As to knowledge that the goods were stolen, this may have been actual, or the facts and circumstances may have been such as would or should put the defendant on notice that the goods were stolen.
The test is whether the facts and circumstances were such that a reasonably prudent man would be put on notice that the goods were stolen.
An act is done knowingly if done voluntarily and not by mistake or accident or inadvertence.
(Tr. 358-59) (Emphasis added).
At trial Gallo objected to this instruction as importing the “reasonable man” test from a D.C. statute which makes it an offense for one, “with intent to defraud, to receive or buy anything of value which shall have been stolen . . . knowing or having cause to believe the same to be stolen . . . ” D.C.Code § 22-2205 (emphasis added). He contended, and still does, that, since 18 U.S.C. § 2314 prohibits transportation of goods in interstate commerce “knowing” the same to have been stolen the jury should have been told that proof by the Government of “actual knowledge ” was required.
There are several federal cases which state that proof of
actual
knowledge is required.
United States v. Fields,
Judge Friendly’s fine opinion in
United States v. Jacobs,
The jurors in this case were made well aware that they had to find either that the defendants actually knew the bills had been stolen or had manifested by their conduct that they were deliberately shutting their eyes to what they had every reason to believe to be the fact.
As we view § 2314, it would be a misinterpretation thereof to require proof of actual knowledge.
United States
v.
Jacobs, supra,
states as much when it allowed for alternative proof. Limiting convictions to those cases where actual knowledge was proved would impose an unnecessarily rigid standard, in that it would tend to require clear direct evidence in all cases, would substitute actual certainty of proof for proof beyond a reasonable doubt, and would eliminate
many
reasonable conclusions which it would be permissible to draw from circumstantial evidence and from those time-honored presumptions in this area of the law which are recognized as being valid conclusions from inadequacy of price and exclusive possession of recently stolen goods. We have no hesitancy in holding that the jury may conclude from circumstantial evidence that an accused possessed the requisite knowledge for the statutory offense. In our view the knowledge requirement of the statute is sufficiently stated if the jury are instructed they must find that the defendant transported the goods “knowing [the] same to have been stolen . ”
Cf. United States v. DeKunchak,
While our interpretation of the statute does not go so far as to require the rigid proof of actual knowledge that appellant contends for, we do find that the court’s instruction on knowledge was erroneous because it understated the full degree of proof required. What the statute requires is proof that an accused knew the goods were stolen. As we perceive the requirement of the statute as applied to this case, that the accused transported the coins “knowing the same to have been stolen .,” such element is not sufficiently proved by—
. facts and circumstances . such as would or should put the defendant on notice that the goods were stolen . such that a reasonably prudent man would be put on notice that the goods were stolen.
(Tr. 359) (Emphasis added). It may be true in a given case, such as where the notice was clear and was wilfully ignored, that evidence of such facts may be considered by the jury as part of the proof that an accused possessed the requisite knowledge, but it is error to instruct that a guilty verdict can rest solely on facts that would or should put a reasonably prudent man on notice. While there may be factual situations where the notice which the accused received was so strong that knowledge could reasonably be imputed therefrom, there are many other instances where such notice would be insufficient. What the given instruction lacks is the statement that the notice must be such that the jury could conclude therefrom that the accused did know that the goods were stolen. Unless the instruction reaches that point, it fails to satisfy the requirement of the statute.
*368
The instruction that was given, by permitting a conclusion of knowledge from facts that should put a reasonable man on notice, stops short of meeting the degree of knowledge that the statute requires and thereby imposes a lesser standard for proving guilt than the act requires. One can conceive of many instances when facts that a reasonable man might notice as conveying knowledge should not be equated with proof of knowledge beyond a reasonable doubt. What is required is the further step that the facts and circumstances of which he is placed on notice, and his actions with respect thereto, are such as to permit a conclusion that he
knew
the goods were stolen.
United States v. Landers,
As mentioned above, there are also other facts and circumstances from which a jury may base a finding of the knowledge required by § 2314. United States v. Jacobs, supra, points to one method of proof:
Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence.
Wilson v. United States,162 U.S. 613 , 619,16 S.Ct. 895 , 898,40 L.Ed. 1090 (1896) —a principle we have often applied. See, e. g., United States v. DeSisto,329 F.2d 929 , 935 (2d Cir.), cert. denied,377 U.S. 979 ,84 S.Ct. 1885 ,12 L.Ed.2d 747 (1964); United States v. Izzi, supra,427 F.2d at 297 .
Another rule, that a jury may conclude from the acquisition of goods for an inadequate price that the purchaser knew they were stolen, needs no extensive citation of authority. Wharton’s Criminal Evidence, § 244, n. 40 (1972). Thus, the knowledge required by the statute may be proven in different ways, but, whatever method of proof is followed, the jury must be able to conclude therefrom beyond a reasonable doubt that the defendant knew the goods were stolen.
For possible use on remand we have set forth a suggested instruction in the margin,
6
which is based on the charge given
*369
and approved in
United States v. Jacobs, supra,
For the foregoing reasons the judgment of conviction is vacated and the case is remanded for a new trial.
Judgment accordingly.
Notes
. He argues his point as follows:
It is the law of this Circuit that evidence of acts occurring subsequent to the date of an offense may not be admitted to prove that the Appellant possessed guilty knowledge on the date of the alleged offense. Witters v. United States,70 App.D.C. 316 ,106 F.2d 837 (1939);125 A.L.R. 1031 . The rationale being that one cannot have knowledge of a fact at a certain time through some happening or occurrence that may take place in the future. Witters, supra, at p. 319,106 F.2d 837 .
Gallo’s Brief, p. 10.
. This testimony was given by Minossi.
.
State v. Ray,
. The indictment charges:
On or about August 30, 1974, JOSEPH L. GALLO did transport and cause to be transported in interstate commerce from the Commonwealth of Virginia to the District of Columbia, stolen goods, wares, and merchandise, namely, gold coins, property of Margaret Philipp, of a value in excess of $5,000.00, knowing the same to have been stolen.
. In
United States v. Thompson-Hayward Chemical Co.,
. The Government must prove beyond a reasonable doubt that the defendant knew the coins had been stolen.
Knowledge is not something that can be seen or touched and ordinarily is not proved by direct evidence, because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant knew the coins were stolen from circumstances that would convince a person of ordinary intelligence that such was the fact.
*369 In deciding whether the defendant knew the coins were stolen, you should consider the entire conduct of defendant that you deem relevant and which occurred at or near the time the offenses are alleged to have been committed.
Guilty knowledge cannot be established by demonstrating mere negligence or even foolishness on the part of the defendant, but it may be satisfied by proof that the defendant deliberately closed his eyes to what otherwise would have been obvious to him. Thus
if you find that the defendant acted with reckless disregard of whether the coins were stolen, and with a conscious purpose to avoid learning the truth, the requirement of knowledge might be found to be satisfied, unless the defendant actually believed they were not stolen.
I further instruct you that proof of a sale and purchase at a substantially discounted price permits, but does not require, an inference that the defendant knew of the stolen character of the coins he purchased.