*1 person produces them) ar- who a taxable- ufacturer sold the wholesaler’s salvage, junk scrap, mark-up handling costs, ticle from material, or selling, over- profit. or raw head
as well as from new I would reverse. material, (1) by manip- processing, changing
ulating,
of an
or
the form
combining
article,
(2) by
or as-
or
sembling
or
two more articles.
“(b)
circumstances,
certain
Under
person
or
where
manufactures
per-
produces a
for a
taxable article
son who
materials and re-
furnishes
America,
UNITED STATES of
thereto,
person
tains title
Plaintiff-Appellee,
whom the taxable article is manufac-
produced,
per-
and not the
tured
Phillip
MASIELLO
Francis Lester
actually
son
manufactures
Stickel, Defendants-Appellants.
produces it, will be considered the
No.
Docket 23917.
manufacturer.”
Appeals
United States Court of
wholly sep-
Polaroid and Greist are
Second Circuit.
and distinct entities who struck an
arate
Argued May 10,
length bargain whereby
arm’s
Greist
July 18, 1956.
Decided
independent contractor “manufac-
Certiorari
Oct.
Denied
of mak-
tured” the cameras
the sense
See
its own parties, then sold them from third agreed price to Polaroid. The for an patents of Polaroid’s because fact legally could have had and Greist for the cameras and the customer accord- cameras were made fact that specifications ing sub- Polaroid’s inspection ject seem to me beside Certainly point. if Greist in viola- patent and its contract law tion camera or cameras sold a Polaroid with than Polaroid it Would other some one on those for the tax cameras. liable ordinary me lan- seems guage was the manufacturer and Greist purchaser who sold the cam- Polaroid impose Thus to wholesale. eras Polaroid to base the tax not on on tax price sale manufacturer’s accord- the statute but the whole- ance price, naturally sale saler’s includes, greater presumably, since it goods cost of the addition (the price for which wholesaler the man- *2 portentous perish- because of the
product.
able nature of their Masiello and in Stickel were single conspiracy, dicted on a of count per implicating
and no evidence other Hence, sons introduced at the was trial. told, government as the had prove defendants, of both against or the case both failed. The evidence that Masiello committed sub abundant, stantive acts of extortion is conceded; defendants contend tending that the evidence to incriminate support Stickel is too tenuous to verdict, jury’s and that con hence both victions must be reversed. Turinet See ti v. F.2d 15. agree, We cannot for we think that a City Pécora, New York Ferdinand study pat of all the evidence reveals a Ludwig Frohlich, Teller, (Schwartz & intelligent, tern jury events from an which City, Horowitz, New York David H. and rationally could and as a matter of defendants-appellants. brief), for on undoubtedly common sense find! Megargee Brown, Sp. Asst. U. Peter participant Stickel active in this con City Y., Atty., New York D. N. S. S. tinuing profitable conspiracy. and Atty., Williams, (Paul New U. W. S. By 1949 Stickel was in control brief), plaintiff- City, York appellee. on the Although Local No. teamster the- committees, had number of union the- CLARK, Judge, and Before Chief record indicates charge ini that Stickel was Judges. HINCKS, executing bargain- Circuit FRANK collective milk, ing contracts with over-the-road haulers, Dairy Judge. members of CLARK, Trans- Chief port Association, (DTA). Inc. Stickel! appeal judgment from a Defendants announced when the contracts would be- convicting upon them of verdict signed, where, and under what circum- conspiracy interstate commerce to affect exert, position He was in stances. in violation of the Anti- extortion control over crippling haulers the use of Racketeering Act, 1951, and 18 U.S.C. § against opera- strikes their sentencing years prison. five them to authority power- His was the tions. agent, and was a business Masiello necessary to enforce a successful scheme- Secretary Treasurer, of Stickel extortion. 445 of the International No. Local letters, Chauffeurs, May 27,. Teamsters, In identical dated Brotherhood haulers, Helpers America, and sent Stickel. Warehousemen agreement already- that an stated had of this local union The members AFL. employees haulers, reached between the DTA and Lo- of milk were copies engaged transporting He cal No. 445. enclosed milk re- the- were neighbor- contract and uniform instructed the- farms of six from the ceived ing metropolitan haulers to come to the union office om the New York states sign letters,, contract. The milk haulers were de- June these Since area. union, signed personally by uninterrupted progress’ Stickel as a pendent pf officer, warning upon receipt ended with operations that he- their continuing “expect recipient “sign upon [ed]” for- contract union up will, they good and “clear vulnerable to us” were issues are- union holding up completion negotia- stoppage, made our of a even threats work Although quested placed the cash to Masiello or there was tions.”1 envelope place men negotiating where the had the table taken some according Although spring, that were seated. no evidence there was actively par- ne- Stickel did not were sent the time the letters at gotiations *3 ticipate take uncompleted cash or lay issues the transfer of it, effort up overt was no it be notice of there remained cleared unless to be him. made payoff and to conceal the transfer the claimed to Masiello Stick- n el, government. meeting by Masiel as the After June 1 asserted the of participating haul 1° visited one of the Four hauler-witnesses testified that had been ers and told him that a mistake va- Masiello communicated with them at money had made in amount of the meeting xious the of June times before envelope. haul This handed over in the they pay- 1 and demanded that make Similarly paid er more then over cash. in amounts of ei- ments of sums cash paid another hauler $500 price the of reeeiv- .ther $300’ $500 year. ing day appointed the On contract. the following years In three similar the testifying oth- haulers —those and and the conferences between Masiello appeared and at the union office (cid:127)ers — by receipt were followed haulers by one into a room about were called by the haulers and the union contract x feet in size wherein was 10 20 Stickel by receipt of cash One em- Masiello. with the contracts seated behind table ployer, paid $2,000 $2,- Turco, piled of him. Masiello was also in front $2,500 and another in 1952. according and, present in the room early temporarily when fell witnesses, seated of the was at some payments, behind in his he was ex- put As one witness table Stickel. payments by to hasten horted Masi- it, “within handshak- the two men were complained ello, Stickel was ing of each other. After distance” money, signed to receive the anxious had and the hauler Stickel Gilnack, hauler, agreement, hauler handed a Another either received the containing May, envelope appear plain but white the re- letter failed to by signed parties rep- Team Brotherhood the Union and the 1. “International resenting Association, namely, sters, Warehousemen Chauffeurs and Mr. Helpers Nye. of America Mr. Marcus We have been n “Affiliated with the American Federa- up trying signed to clear the issue of a Haulers, Labor tion of for sometime with contract your “(Vignette) members Association. signed “The matter of a Local contract was Union Stickel "“Lester brought “Secretary-Treasurer to the attention of our No. Executive upon acted Board “2 matter Post Street following manner and ruled that— N.Y. “Yonkers signed “Telephones: must be a contract cov- ering the individual haulers of 3-7997 YOnkers 8-3640 —YOnkers milk delay. May 27, further without The actions of the approved Board was Executive membership '“Gentlemen: day February arrang- so therefore we are “On 2nd Representatives ing agreement to have our was reached and between at our office, Association, Dairy Transport located at 32 Inc. Middletown James Wednesday, Middletown, Street, 1st, June N. our A Y. and Union. at stipulation your P. M. with a contract up and a was cover was drawn tract expect you setting operation agree- sign which we forth will thereto (cid:127)attached up clear us and settled also in the issues was are ment as it holding up completion negotiations. following: stipulation of our is the you. agreed Employ- “Thank “It has been truly “Very yours, jurisdiction coming under the ers Stickel, “Lester who are mem- named Local Union above “Secretary Dairy Transport Treasurer, & Association bers sign separate “Local Union No. uniform but contract will “Lester attached hereto. Stickel/lm Stipulation “ceiu;153” was . “The Contract ' Feeling money. Shortly “over a meeting there- manded the of June 1. hauling oper- Hillman some time consented and barrel” milk after strike of his paid an addi- and also began un- cash $250 later ations and he hurried year. made present- tional sum later in He headquarters, ion where Stickel payments in sign. other subsequent years. Masiello substantial extortion him ed with a contract present; weeks a few was not then was
later he told
that Stickel
Gilnack
meeting
In 1953 there
between
money,
“impatient”
and Gilnack
for his
Hillman to dis-
Stickel
Masiello and
period
sev-
paid
about
over a
$750
driv-
cuss the transfer of
union
certain
eral months.
from another
445:
ers
local to Local No.
*4
discussing
In
early
the comments of another
1950 Stickel
Late in 1949
in
transfer,
garage union official about such a
and Masiello visited Gilnack’s
said that
wanted
this official
Stickel
additional
and instructed him to hire an
$10,000 for the
Hill-
transfer of certain
employee,-
Gil-
one Richard Winters.
employees;
that
ground
Stickel observed
that he need- man
nack refused on the
asking anything
“crazy
the official was
employees;
a re-
no
and as
ed
further
like that.”
operations
for four
sult his
struck
were
days.
advised Gil-
or five
Then Masiello
Then Masiello and Stickel offered
Pizzo,
labor relations
nack
counselor,
hire
effecting
to
help
their
to Hillman
in
thing
“straighten
out.”
to
necessary
told Hill-
transfer.
Stickel
presence
of Stickel and
Later
(Stickel)
everything
man that he
“knew
Masiello, Pizzo
that he
told Gilnack
Masiello,
turn,
that Masiello knew.”
in
shop
to
would have
hire Winters
(Masiello)
advised Hillman that he
union-designated
steward,
position.
everything
“knew
knew.”
that Stickel
After lunch
Hillman from
subject
Masiello took
retroactive
At this
time
dining room,
the hotel'
had
-where
employees
pay
arose.
for Gilnack’s
sitting,
lobby,
to
where he de-
presence
in
Pizzo told Gilnack
per
manded
man for the transfer.
$125
and
that he would
Masiello
both Stickel
result of the
Hillman
pay.” As a
conversation
$1,-200
pay
“retroactive
haveto
paid Masiello $500.
later
times
Masiello
at different
Ip
places
collectedthis sum from Gilnack'
the summer of 1953 after certain
complained
did not
installments. The evidence
haulers
cash
had
Union,
telegram
ever reached Gil-
that
of it
was
show
International
employees,
ordering
re-
inference
and the
nack’s
him to cease ne-
sent
Stickel
strong
piece gotiations
of a
that
it
mained
was
on all milk contracts. After
payments
conspiracy
Masiello.
made
the other
and no
with
terminated
the.
,
Additionally
payments
similar to
and in a manner
further
were made.
employers,
made
of other
Gilnack
December, 1953,
Hickey,
Thomas
L.
year
payments
of about
further
$750
president of the International Un-
a vice
ion,
1950, 1951, and 1952.
Masiello
over control
took
of Local No.
Hillman,
hauler,
trustee
informed Stickel that
F.
another
in as a
Paul
of the local union were sus-
from
officials
a demand
Masiello the
received
running
price
pected of
for their own
of the
bene-
new
for $500
Hickey
Then Masiello told
tract;
when he received Stickel’s fit.
(Masiello)
May
question” presence of Stickel that he
was “no
letter
“rap”
Hickey
take the
if
would
final
mind what
sentence would
ap-
report
“lay off Stickel.” Later Stickel
he
Still
refused
meant.
Hickey
suggestion
hauling opera-
proached
with
payoff, and his milk
along
go
with the “deal” offered
a. m.
at 3:00
Faced
were struck
tions
Elaborating,
speci-
got
by Masiello.
Stickel
disaster unless he
business
rap”
rolling,
“take the
reported
that Masiello would
Hillman
to Stick- fied
milk
(cid:127)
Hickey
“lay
sign
off
would
Stickel”
and was then
contract
to el
go
Masiello,
who de- “let
free.”
downstairs
Stickel
taken
power
monéy
presented
the haul-
question
whether
extract
evidence,
ers,
an active
would
to make himself
of all the
not on
basis
summary
participant
Masiello’s scheme.
is a
the above
which
proper
elements,
important
it was
Further,
practical
as a
matter Stick-
for the determination
case
to submit the
hardly
mcrely
d could
have been
benevo-
evi_
no
offered
The defense
°f the ^
lently
indifferent
activities Masi-
not take
did
defendants
dence
Thug
_
ello of
which
was aware>
issue.
If a
is the
This
sole
the stand.
gtiekel
important
anwas
official of the
^
prop
present,
question
it was
was
unjon.
bjs
unj0n’s
and both
own and
jury under a
erly
submitted
damaged
repUtati0n
being severely
were
carefully
charge
the re
stated
activity.
Masiello-s
proof
crimi
m
quirements of burden
likely
find
he would allow
exception is
which no
cases and to
nal
g0 cos-yy
merely
activities to continue
made-
illegal
for the
benefit of a subordinate.
suggest
all of
is moreover
obvious
Masiello’s
Defendants
prove
government’s
with statements and
is consistent
actions
*5
ig- highly incriminating
hypothesis (1)
was
that Stickel
to Stickel. Stiek-
an
(2)
el,
man,
permit
activities
that
as an innocent
of
would not
Masiello’s
norant
incriminated;
though
ignorant,
benev-
Stickel,
was
himself to be thus
or so
part,
might
indifferent,
jury
rationally
naturally
olently
took no active
the
and
spoils. But
none of the
hold.
and received
they
purposes
practical
for all
rely
alternative,
We return then to the first
hypot
entirely
the
esis
first
nameiy)
ignorant
that
of
Stickel was
strength
For even if
asserted
and its
Masie]]o
what
trary
was
But the con
doinff.
jury accepted the
alterna-
latter
regts
compelling
upon
conclusion
rationally
indeed,
could, and
tive
testimony,
from
and there
gui y.
,
e en an s
n
e
s ou
nQ.g
challenge
evidence whatsoever to
it.
, ,
,
„
,
times,
course,
,
when a
.
of
are
There
sophisticated bystander
mi
The
,
,
by
,
presup-
.
.
view asserted
defendants
may rely
on his
....
,,
but
innocence,
dazzling-m
poses
.
a naivete
its
.
,
,
„,
innocence;
,
„.. .
as
-
indifference
.
own
TTT1What,
example,
was
to
Stickel
think
hardly apply
powerful
can
to
that
employers deposited envelopes on
force is
coercive
leader whose
union
amply
]?he“
the table at which he was
slttln»
actually the
and is
attested
envelopes
handed
to Masiello after re
charged.
illegal acts
for the
foundation
ceiying
What,
their contracts ?
ex
permits
knows
and
If such
Stickel,
did
the Treasurer of the
amPle>
l°cal
power
of his
to ex-
threat
of the
use
union,
happened
$1,200
think
employers, he
payments from the
tort
pay
Gilnack,
in retroactive
which
with
conspirator, wheth-
made himself
has
standing by,
pay
Stickel
was ordered to
proceeds or
in the illicit
he shares
er
employees? Moreover,
we must not
by
Masi-
threat wielded
not. So the
isolating
make the mistake
each inci
power of
notorious
Stickel
was the
ello
separately denigrating
thus
dent and
it.
toor
call
contract
a union
withhold
Actually
mosaic,
all
evidence was a
hauling operations.
crippling
strike
making
sign-
contribution,
its
bit
own
each
issue calls for
For Stickel
ing
building up
compelling
all
strikes for and
order
whole
contracts
knowing
jury
first
court
“non-cooperation,”
that
as
and second
Masi-
actually
using
view it.2 Thus we
these manifestations of should
should
was
ello
by illegal
general pattern
discovered
arrest
is one of the
fea
2. This
distinguishing
sharply
seizure.
accused
this case from
search and
tures
right
Re,
was seated
front seat
v. Di
332 U.S.
States
passed
210, heavily
where the driver
L.Ed.
relied
automobile
eoun-
coupons
gasoline
by
gov-
ration
terfeit
to a
The issue there
the defendants.
ou
seat,
admissibility
different, being
informer
ernment
the back
was
exercising
powers
pat
that enforced
as the
riot
such matters
overlook
spe-
compliance,
while Masiello made
called
ness with
the strikes were
by
the cash.
re cific demands and collected
when Masiello’s demands
Stickel
certainly
effort
(as
made no
incidents
Masiello
mained
But
unsatisfied
Hillman),
from
to conceal his alliance with Stickel
testified to
Gilnack
just
completeness
he did
In fact
identi
truckers.
with which Stickel
opposite;
did so
he advertised it and
Masi
fied himself
and all
with Masiello
four-year
continuously
duration.
knowledge
for its
ello’s
such
to the haulers
course,
passes credulity,
Hillman,
revealing
Stick-
conversation
obvious
It is
el alone never heard of it.
Hillman
Hillman
to the transfer
haulers
proper
from the
of the
drivers to the
local union and
thorough
shake-
finally
believed at the time
therefor,-
bonus
working
ly
the two men were
request
downs
consistent
International
many
together. Knowing
and the
this
Hickey
Vice President
let Masiello
neat-
so
go
where their activities
rap
incidents
take
free.
and allow
him
ly
their
detriment of
dovetailed to the
rule
To
as matter of law that all
victims,
remained
the idea
Stickel
not evidence
for the
Stick
throughout
ignorant
blissfully
is not to
guilty knowledge
depart
el’s
is to
speedy
grounds
credited.
of rational
sense.
common
long case showed its
practical
in this
verdict
In the
know
affairs of life we
quick
result.
sophisticated
reaction to a common-sense
power
executives
Judges
than
money
more naive
groups
should
ful
are not so oblivious of
including
others,
jurors. Notwithstand-
passing
eyes.
before their
Nick v. Unit
*6
resting upon
ing
heavy
the
States, Cir.,
660, 670,
burdens
the
ed
138
122 F.2d
diffi-
791,
prosecution
of the obvious
because
A.L.R.
denied 314 U.S.
certiorari
testimony
par-
procuring
687,
302,
550,
culties of
rehear
S.Ct.
86 L.Ed.
victims,
ing
ticipants
411,
and
and Stickel’s
715,
denied 314
U.S.
S.Ct.
avoiding many open mis-
in
570, 316
shrewdness
86 L.Ed.
62 S.Ct.
U.S.
quite
takes,
as disclosed
we find the case
agency
FRANK,
Judge
law
(concurring).
Circuit
permitted
infer
to make such
also be
admittedly guilty
1. Masiello was
data
from the known
ences
deductions
not,
the substantive
crime. He was
as are common sense under the circum-.
guilty
however,
of the sole crime for
basic facts
stances. And such
will
e., conspiracy
which he was indicted —i.
cases;
vary
to criminal
from civil
guilty
with Stickel —unless Stickel was
testimony
speed
position
mute
conspiring
with Masiello.
I think
tire
except
of an automobile
disclosed
evidence,
for one item —the
that —
suddenly ap although enough
support
judgment
when the brakes are
treads
story
plied
government,
will
plaintiff
not tell
as to what
for the
were it the
actually happened
prosecu
suit,
in a criminal
sup-
in a civil
does not suffice to
manslaughter
port
agree
tion for
another
a criminal conviction.1
IBut
damages
wrong
personal injury
damning
one item
is so
Compare
concurring
opinion
judge.
declined to be uttered
Castro,
perpetuate
develop
United States v.
F.
effort
these
*7
807, 808,
2d
which states
that
man
a
elaborate unserviceable definitions is a
may
put
though
one,
to-day
be
chiefly
to death even
the trial
useless
serves
to
judge
upper
purposes
court
“are
aid
sure that
of the tactician.
It
Wigmore
no reasonable men
his
would believe that
should
abandoned:”
on
guilt
proved,”
1940).
e.,
(3d
lias
thus
“be
§
i.
Ed.
Evidence
It seems
yond
judge
a reasonable doubt” —and thus turns
even
constructive to
less
force the
expense
wholly
apply
yard-
the rule inside out at
to
indeterminate
meaning.
prelimin-
deciding
its
stick
ary
himself in
to
question
and otherwise clear-cut
as to
5. opposite
contrasting
or
here
rule
permissible
inferences of fact
what
are
prayed
clear;
for is made none too
it
requirement
evidence.
on the
Such a
judge
deciding
seems to bo that
nothing
justice
add
would
either
or
what
of fact
inferences
are
rational
judicial process,
to
trial convenience
permissible
testimony
from the
promote
yield
but would
confusion and
charge
somehow
himself witli
the ulti-
only
vague,
though undoubtedly
best
a
given
jury
finding
mate admonition
against
vigorous, claim of error
the trial
beyond
proven
a crime
a reasonable doubt
judge.
normally
inferences,
so that
rational
example
agree,
marks,
example,
from the tire
be-
1. I cannot
for
that
it
credulity
“passes
come irrational
criminal
cases.
that Stickel alone never
Wigmore’s
this contention Dean
common-
heard”
Masiello’s
shake-downs which
accomplished by
attempts
implied
sense comment on various
to
Masiello
threats'
charge
embroider
the reasonable
Stickel
doubt
that otherwise
use
his of
pertinent:
bring
practice,
is
“In
these
fice to
about strikes.
detailed
Often a
amplifications
usually
agent successfully
of the doctrine
creates
have
crooked
the-
degenerated
impression
princi
a
into mere tool for counsel
false
pal
that his innocent
entrap
judge
party
unwary
in-
desire
is
authorized
to or has
forgetfulness
prec-
of some obscure
misdeeds.
edent, or to save a cause for a new trial
as to the incident when
evidence
by quibbling,
appeal,
Hillman
over the
Stickel told
that Masiello “knew
verbal
propriety
everything
or
turns out
form of words uttered
that Stickel knew”
reasonably
requires
find
jury
that the criminal standard
that
could
that
guilty,
judge
Masiello,
direct a
for
Stickel,
verdict
the ac-
therefore
judge reasonably
cused if
beyond
doubt.
thinks
a reasonable
that the
for
conviction is such
particular
for that
it not
Were
might persuade
jury
it
that
a reasonable
I dis
testimony,
For
dissent.
I would
“preponderance”
find
that meets the
it
colleagues’
agree
my
that
statement
with
“beyond-a-
test
does not meet the
apply
de
“the test
test,
reasonable-doubt”
and that his fail-
termining
what rational
do
ure to
so
reversible error.
constitutes
permitted to draw
jury
fact a
Contrary my colleagues’
critical com-
testimony
civil
is
same
from the
ment, those courts do not hold that the
cases,” and the statement
and criminal
judge may
trial
decide whether
de-
Feinberg,
United States
guilty beyond
fendant
a reasonable
“that
A.L.R.
doubt. Those courts do hold necessary
send
of evidence
standard
judge should direct a
verdict
the ac-
in both
the same
a case to
cused,
judge reasonably
if the
thinks
concur
cases”.
In a
criminal
civil and
that a reasonable
could not find
Castro,
ring opinion in
States v.
guilt proved beyond a reasonable doubt.
my
rea
I stated
disagreeing
thesis.
sons for
suggested3 (I
It has been
think cor
my
desirable,
col
because
I think
rectly) (a)
“by
that the civil standard —
leagues’
the
emphatic
of that
reiteration
preponderance”
that the infer
—means
(and,
case,
amplify
instant
sis in the
ences
are such as to
modify)2a my
respect,
com
in one
persuade that
the occurrence of an es
case.2b
the Castro
ments in
likely
probable
was more
sential fact
legal
part
non-occurrence,
(b)
our
than
is a vaunted
government’s proof
“beyond
in the criminal
that the
tradition
reasonable
test —
persuasive
case must be more
doubt”—means
a criminal
those inferences
case,
e.,
proof
plaintiff’s
civil
i.
are such as to
in a
convince that the
than
occur
while,
case,
a rence of an essential
civil
to sustain
fact was much
likely
probable
proof
verdict, plaintiff’s
must be
than its non-occur
evidence,”
Recently, Denning, J.,
“preponderance
in a rence.
an unusu
n ally
English
government
plain-
explained
judge,
able
ease
in an
opinion
prove
“be-
differences in
tiff must
defendant’s
burden of
proof
case,
yond
as follows: In a
doubt.” In a civil
civil
a reasonable
the evi
judge reasonably
dence need
gree
have
the trial
“reasonable de
*8
probability”;
of
the
favorable
if “the
evidence most
siders
evidence
such that
plaintiff
say,
is
tribunal can
is such that a reason-
‘We
probable
persuaded
it
jury
not,’
think
than
would not be
able
discharged,
“pre-
but,
is
proba
burden
if the
that evidence meets the
find that
equal,
standard,
judge
it
ponderance”
are
is not.” In
the trial
bilities
a crim
n should
case,
go
a
inal
guilty,
before
case
defendant
is
not allow the
found
evidence
jury
“the
need not
direct a verdict
reach
should
for the
cer
but
tainty
carry
high
Many courts, including
degree
but it must
a
sev-
defendant.
probability.
against
appeal,
If the
of
have held
eral federal courts
infra,
scrutiny,
think,
quite
2a.
footnote 8.
See
I
careful
entirely
interpre-
capable
innocent
Castro,
previously
I
2b. As
said
I had
tation.
acquiesced in that
thesis.
proof
no
whatever
is
of Stickel’s
Morgan, Some Problems of
Evidence
participation in the shake-downs that the
(1956)
For a
84^-85.
somewhat similar
haulers believed that “the two
victimized
statement,
McBaine,
see
Burden
working together.”
men were
Degrees
Belief,
Proof:
32 Calif.L.
(1944).
Hickey
Kev.
I refer
my
opinion.
colleagues’
reported in
proves
strong
a re-
believes the evidence
the ac-
so
to leave
a man is
guilty beyond
can
cused
a reasonable
possibility in his favour which
mote
jury
sentence,
doubt. If the
‘Of
finds
ac-
then
dismissed with
guilty,
judge
cused
a
possible,
not
the least
must enter
is
but
course it
judgment
conviction, sending
beyond
proved
a
probable,’
is
the case
jail
nothing
despite
man to
doubt,
short of
to his
but
reasonable
death —
judge
This,
think,
the fact that the
feels certain
will suffice.”4
jury
that a
Supreme
when it
reasonable
could have
meant
Court
what the
had no
more than
ac-
said,
a belief that
in Holland v.
guilt
127, 130,
proved
cused’s
had
been
S.Ct.
U.S.
* * *
preponderance
actions
the evidence.
“Unlike civil
L.Ed.
always prove
prosecution
must
put
succinctly,
To
even if the
charge beyond
reasonable
judge
no
jury
has
doubt
* *
*
government must
doubt.
reasonably comply
cannot
with his
* * * prove every
of-
element
acquit
admonition that it must
un-
though
beyond
doubt
a reasonable
fense
guilty
less it finds the accused
be-
certainty.”
mathematical
yond
not to a
e.,
a reasonable doubt—i.
if
he has no doubt that a reasonable
view,5
Departing
earlier
from its
jury
guilt by
could find
no more
years ago,
Circuit,
contrived its
some
preponderance
than a
of the evi-
doctrine,5a
is as follows:
own
judge
dence—nevertheless the
judge
(a)
re-
The trial
commits
jury
verdict,
let the
return a
if
if,
error in
criminal case
versible
that verdict
is adverse to the ac-
charge,
fails to tell the
cused,
judge may
properly
that,
jury
find
ac-
in order to
set aside the verdict and enter a
they
guilty,
must conclude
cused
judgment
acquittal.
guilt
proved
be-
that his
has
Thus in this Circuit the reasonable-
yond
doubt.
a reasonable
significance
standard
doubt
has no
what-
(b) But the trial
commits
judge;
ever for the
its sole function is
failing
to di-
error
no reversible
part
jury.
as a
of the instructions to the
accused,
verdict for
rect a
So, in
Castro, Cir.,
United States v.
entering
judgment of ac-
in not
majority
opinion
(after
quittal
a verdict adverse
rejected
theory
“that the accused is
accused),
(1)
if
he thinks that
protection greater
to a
entitled
than that
reasonably
could
reasonable
must be told that
must not
preponderates
the evidence
believe
have
fair doubt of the
government’s favor,
even
accused,”
added,
“whether reasonably
(2)
feels
that a
sure
in all
the doctrine
the circuits we need
jury could
reasonable
not believe
inquire,
thoroughly
for it is the
es-
proves
accused
that the evidence
doctrine in
tablished
this circuit that the
guilty beyond a reasonable doubt.
only difference between a civil action
In such
he must let the case
prosecution
a criminal
is in the in-
*9
go
jury provided
he
to
given
jury
that must
struction
to
—
charge
includes in his
the statement
jury]
that
must
[the
be convinced
acquit unless
that the
must
beyond all fair doubt.”
1947,
Pensions,
See,
2
4.
v. Minister of
g.,
Wishnatzki,
Miller
e.
States v.
2
United
Engl.L.Reports,
Cir.,
357,
372.
All
360;
F.2d
77
United States v.
Silva, 2
109 F.2d 531.
g.,
See,
v.
5.
e.
Fraina
United
words,
present
In other
Second Cir-
28,
Cir., 255 F.
35.
crystallize
fully
cuit doctrine did not
until
fairly recently.
beginning
It
5a. Even after tlie
enunciation
became fixed
first
doctrine,”
Valenti,
Circuit
this
court
in 1943 with United
“Second
States v.
Cir., 134
to its earlier view.
F.2d
sometimes
reverted
proof by
doctrine,”6
preponderance.
a
I with
but
See
Circuit
This “Second
Helvering
391,
Mitchell,
also
397,
v.
303 U.S.
reduces the crimi-
erroneous.
think
405-406,
630,
403,
L.Ed.
S.Ct.
than a verbal
to little more
standard
nal
ritual,
includ-
of words
ceremonial set
a
charge.
appears
judge’s
This
ed
think,
court,
This
I
has not heretofore
statement,
this court’s
attempted
explain
the reason for
to
Valenti, Cir.,
doctrine, except
States
Fein
in United States v.
proof
“requirement
be-
berg,
154 A.L.
to
a direction
yond
doubt is
reasonable
dis
R.
“refused to
where
court
jury”
be accorded
which “cannot
tinguish
between the evidence which
gen-
than as a
quantitative value other
satisfy
men, and the
should
reasonable
cautionary admonition.”
satisfy
eral
reasonable
evidence which should
beyond
doubt”,
men
a reasonable
because
judge,
if, for the
If that be correct—
long
“in
them is
run the line between
test,
beyond-a-reasonable-doubt
can
day
day
for
The rea
greater
too thin
use.”
“quantitative value”
no
have
soning
dis
test,
thus seems to be that
“preponderance”
and there
than the
tinction
too
to be understood
tenuous
may
test
use the criminal
he
not
fore
practically applied
anyone, ei
pre-verdict
post-verdict
either
reasoning
juries.6a
judges
ther
That
jury then,
if the
check
—
certainly
my
implicit in
more than
easily is
may
guilty, we
the accused
finds
colleagues’
ease
statement in the instant
judge
let
where the
have a case
“tell one
that the same evidence cannot
although he is sure
stand
the verdict
story
happened
as to
in a criminal
what
reasonably
guilt
have
could not
manslaughter
prosecution
an
for
by anything
proved
more than a
damages
personal injury
for
ox-
other
preponderance of
the evidence.
wrongful
death”—a statement
according
doctrine,
short,
a crim
saying
amounts
the two stand
necessarily
not
conviction does
inal
actually identical,
ards are
albeit
guilt
adjudication
beyond
an
mean
identically.
assume,
worded
I shall
doubt,
well mean ad
reasonable
moment,
rate for the
is a
that that
judication
which can reason
interpretation
correct
of this court’s rea
only.
preponderance
ably
One
soning.
assumption, suppose
On that
easily reconcile that doctrine
too
cannot
juror,
A
this:
who had earlier served
Commissioner, 2
Mitchell v.
judge,
civil
asks
the trial
aft
this court held that
F.2d 873. There
given
charge
er he has
in a criminal
action,
acquittal of Mitchell in a criminal
case: “Is thex-e a difference we must
tax,
attempt
evade a
did
for wilful
‘preponderance
observe between a
judicata
res
constitute
Mitchell’s
‘beyond
and
Suppose
evidence’
a x-easonable
later, in civil action before
favor when
doubt’?”
were to
sought
Appeals,
Board of Tax
say,
Suppose
juror
“Yes.”
were
liability
civil
United States
avoid
ask,
you
sitting
“If
then to
were
as a
very
pay the
tax
failure to
same
juror,
you always,
if the issues
evade,
intent
a lia
with fraudulent
same,
were the
arrive at the
very
ver
bility
upon
same
founded
same evi
regardless
dict,
gave
whether the case was
as its reason
This court
dence.
my
civil or criminal?”
colleagues
If one of
holding
acquittal
two
for so
judge,
were the trial
then
adjudication
ac
merely
proof
cording
doctrine,
to the Second Circuit
to overcome all rea
was not sufficient
the,
would,
fairness,
'guilt
think
have to re
of the ac
doubt of:
sonable
ply,
any.
“Yes. I am unable to see
cused,
intel-
*10
was therefore not at odds
infra, point 5,
I shall discuss
justification
6a.
an alter-
.label will
be
The
interpretation
explanation.
native
majority
of this
opinion,
found not
in -the
headnote,
but in the
States v.
.United7 .
Castro,
Cir.,
2
289 distinguish ju- it eumstantial evidence” ligible practical difference.” “Well, from inquire, “direct evidence.” alert, ror, then if why, difference, in a crim- no is A testimonial involves an inference charge give you case, aus do inal credibility; evaluation of witnesses’ charge case?” in a civil from the varies once a fact is inferred on of a the basis sug- colleagues my two leave it to inference, any testimonial rivately then fact de- gest response. (i. e., from inferred fact import considering 4. When evidence”) “circumstantial will in doctrine, present it is nec- this circuit’s and of itself involve no evaluation keep essary, in mind order to credibility. jury re- functions spectively, [Because no one testifies to a fact thus distinguish different two derivatively inferred, it is sometimes my kinds inferences: fact,” or, colleagues called a “mute When, (a) in a witness put it, “mute evidence.” It has been fact, the of a testifies to occurrence derivatively said that fact thus in- may properly him, in- jury, if belives ferred, e., evidence,” i. “circumstantial fact occurrence of that fer the singularly reliable, is therefore so inference, testimony. based Such that a fact to which some di- witness testimony, directly “testimonial is a rectly testified, because “circumstances primary (or in- a direct inference” ference). cannot lie.” That cannot be correct: entirely jury’s on the It rests inference, The testimonial from which credibility reliability—of belief — derivatively inferred, such is it- fact testimony A wit- witness: some self derives from of witness directly a fact which ness has testified to may who have lied or a mistake made believing him, takes as a fact. jury, memory in observation or or in re- is Accordingly, oft- inference such an port memory. at the trial of his “It “direct evi- (misleadingly) called en seems,” Wills, said “to have been over- 6b dence.” * * * looked that circumstances in- (b) proved by testimony; From one or more testimonial human be although ferences, however, lie,’ inferences further ‘circumstances cannot may may; that, facts other wit- the occurrence of them like narrators e., drawn, facts, they may as to exist- i. bi- of other nesses * * *”7a concerning facts or occurrence or mistaken “Grant- ence ased Any lie, in- ing has such testified. which no cannot witnesses that facts convenience, report ference, be de- can and them may,” Burill, “derivative an “indirect” or said Circumstantial Evi- scribed as (1868) Often it is labelled “cir- 223.] dence inference.” (i. e. evidence”), misleading. “circumstantial enees is For 6b. “Direct evidence” past Stephen, jurors see, g., do not see or hear e. Introduction to The past 46; events; events, (1872), learn those Evidence Act Indian 41 — (3rd hand, principally Wigmore, ed.) from the Evidence Section tes- second Katingo 25; timony American Tobacco Co. of witnesses. put evidence, jipatera, document 194 F.2d When Had authenticity 451; usually is based on testi- B. v. Universal Camera N. L. R. (con mony. Corp., so “real evidence” Even called Corp. curring opinion); impliedly vouched for a witness. A Wabash v. Ross demeanor, Corp., called “de- 601- sometimes Electric witness’ evidence,” opinion); Maine, Village (dissenting meanor affects the “testimonial 1881) 317-318; (4th ed. drawn from witness’ testi- inference” Communities Frank, Death, mony. of Sickness and Short (1951). 559-564 N.Y.U.L.Rev. important 7. For nature dis- Wills, (or (Fifth 7a. Evidence between “testimonial” “di- Circumstantial tinction evidence”) Eng. 1905) notes, American “derivative” infer- ed. with rect *11 290 sup- any testimony case, will a credible which or a civil In a criminal determining port jury’s the verdict. judge, in
federal
trial
may
grant
trial,
a new
whether to
determining
Although,
in
whether
parts
his own
or disbelief
sider
belief
judgment
direct a verdict or to enter
testimony
may
draw his
thus
of the
notwithstanding
verdict,
the trial
But,
inferences.
own testimonial
judge
rely
should never
on his own tes-
granting
trial,
judge does not
a new
(since,
pur-
timonial inferences
for such
merely
case;
the de-
he
leaves
decide the
poses,
question
of witness’ credibili-
jury.
cision to another
ty
jury), nevertheless,
is for
inquire
any
however,
determining,
should
whether
whether
asserted de-
In
defendant,
inference,
support
rivative
in a
essential
a
verdict for the
direct a
may
verdict,
judge
When,
case,
is irrational:
civil
a
civil or criminal
case,
credibility
any
inference,
properly
an asserted
of
derivative
consider the
constituting
may
proper-
witnesses,
e.,
component
an essential
i.
of
of the
inferences,
party,
irrational,
for
ly rely
a verdict
on his own testimonial
drawing
judge should
in-
direct a verdict for
ad-
of those
but must leave the
versary, or,
against
verdict,
jury. Arid,
after verdict
after
that ad-
ferences to
versary,
judgment
accept
jury’s
in-
enter a
n. o. v. in his
testimonial
he must
In
favor.9
a criminal
if an as-
when he determines whether
ferences
judgment
serted irrational
n. o.
derivative inference is
civil case to enter a
a
guilt,
judge
essential
verdict of
enter
a
in a criminal case to
v. whether
or,
guilty
judgment
acquittal despite
must direct a
for
verdict
the accused
guilt,
making
judgment
after
is,
verdict
enter
deter-
verdict.8 That
such
acquittal.
minations,
judge
accept
findings
judge,
my concurring opinion
trial
insofar as
8. In
in United States
Castro,
Cir.,
807,
consist of testimonial
809-810,
2
based on
v.
228 F.
I
testimony
orally-testifying
witnesses
in a
intimated
criminal case tried
judge
judge
whose demeanor the trial
observed.
a trial
to a
properly
can sometimes
upper
may reject any
But
court
direct a verdict on the basis of
judge’s
the trial
rational
incredibility
in
derivative
his own evaluation
government
ferences if other alternative
de
rational
witnesses. That
intimation
open. See,
g.,
probably erroneous;
rivative inferences are
e.
cf.
Katingo
Renda, Cir.,
American Tobacco Co. v. The
Hadjipatera,
v.
2
States
291
apply
determinations,
in a crimi-
fed-
the same rule
making
Does
such
judge,
“weigh
in such
nal case? Must the trial
the evi-
judge does not
trial
eral
case, apply
de-
test to such a
same
he considers
that
in the sense
dence”
However,
(“circumstantial evi-
rivative
credibility.
inference
he
questions of
dence”)
permissible
as in civil
Is the differ-
case?
whether
must determine
ence
standards —as to
between
two
plus
rational
inferences
testimonial
degree
probability
the
tively
of a deriva-
(i. e.,
“direct”
inferences
derivative
(“circumstantial
evidence)
inferred fact
evi-
are
plus the “circumstantial”
ig-
dence”)
judge
for
a case
out
to make
—one
sufficient
says
now
nore?
take over
Second Circuit
jury.
doing,
not
he does
In so
say,
Many
I
Yes.
other courts
No.
jury’s function.10
think
correct.
the latter answer
point,
all the
Up
I think
to this
5.
assumed, supra,
I
that
this court’s
agree
(although the
courts
federal
explanation of the reason for its doc
varies).
Cir-
The Second
phraseology
intelligible, practical,
trine is that no
disagrees
however,
with others
cuit
difference exists between the two standa
cerning
applicable, in a crim-
rule
colleagues
Perhaps, however, my
rds.11
distinguished from a civil
inal
say
they
that what
mean is that
following
situation:
yet
difference exists
it is too
testimony justifying
(a) There is
judges,
juries,
for
tenuous
for
inferences,
(b)
par-A
some testimonial
explanation
understand it. Such
(i. e., “cir-
inference
derivative
ticular
comprehend:
jurors
find
difficult
If
evidence”), drawn from
cumstantial
tests,
can differentiate
two
cannot
inferences, is essential
those testimonial
judges?
judges in
Federal
other cir
(c)
party,
That de-
for one
to a verdict
thought
apparently
so,
cuits
have
rational,
e.,
i.
on
inference
rivative
apply
possible
have found it
inference,
occur-
the basis of that
reversing
criminal
when
criminal
test
may
in-
essential fact
rence of an
convictions.12 Are the district and cir
although
rationally,
no one has
ferred
singu
judges
cuit
in the Second Circuit
fact,
support
(d)
testified to
larly obtuse?
(“direct
in the testimonial
case, supra
As I
said
the Castro
evidence”) for that derivative inference
Supreme
[228 F.2d
does
809]
Court
e.,
(i.
that “circumstantial
evi-
judges
engage
not deem
unable “to
dence”)
that the occurrence of
is such
drawing.
requires
such
similar line
It
probable
inferred fact is
than
judge
perform
when
feat
non-occurrence, but is not much more
jury.
sits
a criminal case without a
probable.
civil
case of
In a
judge
requires a
to make a not unlike
judge
sort,
should not
direct a ver-
pro-
denaturalization
distinction
properly,
ceeding
after ver-
(which
judge-tried);
dict—and
de-
judgment
government
dict,
n.
o. v.—at vari-
enter
cision for the
such a case
a derivative
with such
inference
if
ance
will be reversed
it rests
measuring
(i. e.,
merely
up
“circumstantial
evi-
to the standard of
dence”).
preponderance
evidence.13
Con-
324, 329; Cooper
course,
States,
Cir.,
trial
10. Of
a federal
does
10
64 F.2d
U.S.App.D.C.
States,
343,
a verdict for the defendant
in a
v.
94
direct
United
judgment
39;
States,
ease and enters
218 F.2d
Friedus v. United
ac-
judgment
598;
appealable.
U.S.App.D.C.
cordingly, his
is not
Rodriguez
power
States,
“abuse” his
thus
without
v. United
He can
possibility of
F.2d
820-821.
reversal.
Feinberg,
v.
11.
States
United
Baumgartner
States,
v. United
592, 594,