United States v. Judd Hirschberg and Richard D. Lowrance

CUDAHY, Circuit Judge,

concurring in part and dissenting in part.

The case against Lowrance is persuasive and his evidentiary objections ill-founded *1517 (as the majority demonstrates). But the mail fraud case against Hirschberg is so extraordinarily thin as to require reversal of his conviction and a new trial.

The crucial and damning evidence against Hirschberg was the possession by Lowrance of one of Hirschberg’s original car keys, i.e., a key furnished to him by the manufacturer. This was obviously very potent evidence. Unfortunately, the government discovered after the trial had started that the key in Lowrance’s possession was not one of the originals provided by the manufacturer. This discovery wiped out most of the case against Hirsch-berg.

After the loss of the “key” evidence, the government was left with only three contentions upon which to rely: (1) Hirschberg and Lowrance knew each other well, before the disappearance of the car; (2) Hirsch-berg told the police he had left the doors of the car unlocked before it vanished; and (3) immediately after Lowrance spoke to the Miami police, a call was placed from Low-rance’s phone to an apartment in Colorado belonging to Hirschberg’s girlfriend. Of these, the first contention smacks of guilt by association. Mere association with people engaged in criminal conduct is itself no basis for conviction. Cf. United States v. Williams, 798 F.2d 1024, 1028 (7th Cir.1986) (mere association with conspirators is not even “slight evidence” that defendant was a member of the conspiracy). A prior relationship between alleged schemers could buttress an inference, well-supported by other evidence, that they engaged in a criminal enterprise. 1 But the paucity of the other evidence against Hirschberg is such that the jury’s verdict could only rest upon the following syllogism: Lowrance is guilty, Lowrance knew Hirschberg, therefore, Hirschberg is guilty. 2 This reasoning is antithetical to the principle that guilt in a criminal proceeding is “individual and personal.” Kotteakos v. United States, 328 U.S. 750, 772 , 66 S.Ct. 1239, 1252 , 90 L.Ed. 1557 (1946).

The second piece of evidence upon which the government relies, Hirschberg’s statement to the police that he left the doors to his car unlocked the night it was taken, is as consistent with innocence as with guilt and thus proves nothing. United States v. Delay, 440 F.2d 566, 568 (7th Cir.1971) (“Where the evidence as to an element of a crime is equally consistent with a theory of innocence as with guilt, that evidence necessarily fails to establish guilt beyond a reasonable doubt.”). The government contends that this statement by Hirschberg links him to the crime because it was an attempt by Hirschberg to distance himself from the theft. But it is, of course, equally possible that the car was stolen, either by Lowrance acting alone or in concert with someone else, precisely because its doors were left unlocked. Moreover, if Hirsch-berg had said that he had locked the car’s doors, the government would likely have argued that this inculpated Hirschberg since it would have been a calculated attempt not to look suspicious. But the statement that the doors were locked would also have been consistent with innocence, insofar as it would have tended to show that Hirschberg had taken reasonable measures to secure his car.

Finally, the government relies upon the sequence and timing of certain phone calls made to and from telephone numbers associated with Hirschberg and Lowrance respectively. Considered in the light most favorable to the government, this evidence does indeed suggest that “Lowrance called *1518 Hirschberg to get their stories straight.” See ante at 1516. Ordinarily, of course, this would be enough to support a jury verdict. But we are dealing here with evidence — proof of the mere existence of certain telephone conversations — that is rather unusual, if not unique. Even if we permit the government the inference that Hirschberg and Lowrance were parties to the conversations, we can only speculate about what was said. Although it is certainly possible that Hirschberg and Low-rance were discussing ways to “get their story straight,” it is equally possible, given their prior relationship that the government took such care to establish, that Low-rance called Hirschberg to attempt to explain how it was that he (Lowrance) came into possession of Hirschberg’s missing, and presumably stolen, car. Or Lowrance may have simply called Hirschberg to have a friendly chat. The point is that we have no way of knowing the content of the conversation at issue. Without such knowledge, the government’s case in this respect consists of inference piled upon inference and does not adequately support Hirsch-berg’s mail fraud conviction. See United States v. Covelli, 738 F.2d 847, 859 (7th Cir.), cert. denied, 469 U.S. 867 , 105 S.Ct. 211 , 83 L.Ed.2d 141 (1984).

All of this evidence taken together is no more persuasive than each piece considered separately. Although many bricks may make a wall, here the government has no bricks. Because there seems to be such a strong likelihood that Hirschberg was im-permissibly convicted simply because of his relationship with Lowrance, I would order a new trial for Hirschberg. See United States v. Morales, 910 F.2d 467, 468 (7th Cir.1990) (holding that a new trial may be ordered when “the complete record ... leaves a strong doubt as to the defendant’s guilt, even though not so strong as to require a judgment of acquittal.”). I, therefore, respectfully dissent to the extent indicated.

. Total strangers, of course, could not scheme together in violation of the mail fraud statute. But a preexisting relationship could facilitate a criminal scheme. Thus, the existence of a relationship between two or more people which antedated alleged criminal activity might make it marginally more probable that they later became part of such a collective criminal undertaking.

. The government’s argument that Hirschberg and Lowrance must have been scheming together because they remained on friendly terms after the car disappeared makes little sense. Assuming Lowrance, either alone or with others, did in fact steal Hirschberg's car, Hirsch-berg, of course, would not be privy to this information and would have no reason to alter his relationship with Lowrance. And Lowrance would also attempt to preserve the status quo so as to not arouse Hirschberg’s suspicion.