# Curley v. United States > Court of Appeals for the D.C. Circuit · January 13, 1947 · 160 F.2d 229 URL: https://www.frixlaw.com/law-library/cases/9644083 ## Case - **Full name:** Curley v. United States; Smith v. Same; Fuller v. Same - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 13, 1947 - **Citations:** 160 F.2d 229; 81 U.S. App. D.C. 389; 1947 U.S. App. LEXIS 3169 - **Precedential status:** Published - **Opinion:** Dissent by Miller - **Judges:** Miller, Edgerton, Prettyman - **Cited by:** 474 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644083 ## Opinion text WILBUR K. MILLER, Associate Justice (dissenting in No. 9208). It is my view that the jury should have been instructed to find the appellant, James M. Curley, not guilty. The wrongs were done by Fuller. -Curley made no representations to anybody. He did not participate in negotiations with customers. He signed no letters, executed no contracts. He did not know of the brochure or the financial statement. He received no money or other thing of value. All this is admitted, even recited, in the court’s opinion. Whether Curley was guilty depended, therefore, on whether he knew of the wrongful acts being committed in the name of the Group. That, the court correctly says, is the crucial question with respect to him. There was no criminal intent if he did not know. If he knew, then it would follow that he had become 'a conspirator with Fuller. But the evidence of knowledge must be clear, not equivocal. 1 It is true, of course, that whether Cur-ley had knowledge of Fuller’s wrongdoing could not be proved directly, but could only be inferred from what Curley did. Nevertheless, the presumption of innocence insists that there be no equivocation in that proof. As always, it must convince beyond a reasonable doubt. If it be not of that quality, if it be not clear but equivocal, then the jury must not be permitted to speculate that the defendant is guilty. Let us see then what Curley did. We need go no further than the court’s opinion, where the proof of his acts is thus summarized: “He was president of the Group. He was frequently in its offices. He introduced customers. He personally attempted to arrange with a bank for a loan which was to be left on deposit. * * *” That is all the record shows against Curley, except that he once attempted, at the request of a customer of the Group, to get Fuller to return that customer’s deposit. What of the quality of such proof? Is it unequivocal so as to fairly permit a jury to infer, beyond a reasonable doubt, that Curley knew of Fuller’s wrongful acts? In that respect, again we need go no further than the court’s opinion, where we read, “The jury, within the realm of reason, might have concluded that it was possible * * * that he was as much put upon as were the customers.” That statement, with which I quite agree, means that Curley’s conduct was *240 reasonably consistent with his innocence. So, at the conclusion of the government’s evidence, when the case was submitted to the jury, that body could believe every word said against Curley and still it must choose between inferring guilt or innocence, when the evidence afforded no reason for choosing the former instead of the latter. In such circumstances, it is impossible for the jury to infer guilt; it can only surmise it. Webster says that the word “infer” frequently implies little more than “surmise,” but I have never supposed that such a connotation is proper concerning the action of a jury in a criminal case. It should be remembered that in this case there was no room for weighing evidence, determining the credibility of witnesses, or drawing justifiable inferences from proved facts — all traditional functions of the jury. For, on the motion for a directed verdict, the government’s evidence could be given the fullest weight, its witnesses could be regarded as credible, and yet the inference of guilt was not justifiable and the jury should not have been permitted to draw it. The reason is that the inference of guilt from circumstantial evidence is never justifiable when the .proved facts at least equally well permit innocence to be inferred. Guilt can be inferred from such evidence only when it is so strongly compelled that the inference of innocence is excluded. With the meagre evidence against Cur-ley quite consistent with his innocence, as the court says, it seems to me that the case falls squarely within the rule announced by this court in Hammond v. United States: 2 “Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial judge to instruct the jury to return a verdict for the accused, and where all the substantial evidence is as consistent with innocence as with guilt it is the duty of the appellate court to reverse a judgment against him.” This is not a new rule in this jurisdiction, for as far back as 1923, in Cady v. United States, 3 this court spoke approvingly of it as a “Well-established and oft-repeated principle.” I think it is a sound rule, because it is based upon the presumption of innocence. But the court’s opinion in this case definitely overturns it and, in effect, announces that it is no longer necessary for the government’s proof to foreclose the hypothesis of innocence. To prove guilt’ beyond a reasonable doubt does not mean merely to prove certain facts which are as consistent with innocence as guilt. To me the expression means to submit evidence which produces in the minds of the jurors an abiding and conscientious conviction, to a moral certainty, that the accused is guilty. I am aware of the fact that his classic paraphrase of proof beyond a reasonable doubt by Chief Justice Shaw of Massachusetts 4 has been criticized of late, but I do not agree with the critics. Reasonable doubt is not eliminated by evidence from which the jury may draw either of two irreconcilable inferences. There is in civil cases a rule which is apropos here, for if it be the rule in civil cases it is much more necessary that it be the rule also in similar situations in criminal cases. In Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 339 , 53 S.Ct. 391, 393 , 77 L.Ed. 819 , the Supreme Court said: “We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.” Again, at page 340 of 288 U.S., at page 393 of 53 S.Ct., 77 L.Ed. 819, the Supreme Court quoted the following sentence with approval: “There being several inferences deducible from the facts which appear, and equally consistent with all those facts, the plaintiff has not maintained the proposition upon which alone he would be entitled to recover.” *241 The jury inferred guilt, when the court said it “might have concluded that it was possible” that Curley was innocent. We, therefore, have a case where proved facts give equal support to each of two inconsistent inferences. Judgment, as a matter of law, must go against the government which had thrown upon it by the presumption of innocence the necessity of justifying the inference of guilt. Under the view of the evidence which the court has taken and in which in the main I concur, the Hammond case unquestionably required a reversal as to Curley. So my brothers of the majority say that the rule stated in the Hammond case is misleading and has become confused in application. The, confusion which they discern they attribute “to a failure to observe in some cases the clear difference between the tests applicable to a motion for a directed verdict and the tests by which a jury must determine its verdict.” Originally, they say, the language quoted in the Hammond case was used in charges to the jury, and only later came in vogue as a guide for the court in considering a motion for a directed verdict. The opinion then adds that “the statement is erroneous for that purpose, or, at the least misleading. It is correct as a guide for the jury in reaching a verdict.”- The implication is, I suppose, that gradually and through a sort of evolution, as it were, and perhaps inadvertently, numerous courts, including this one in the Hammond case, have fallen into error. It will be observed, however, that the Hammond opinion quotes its rule from Isbell v. United States, 227 F. 788 , decided by the Eighth Circuit in 1915. Because of the learning, ability and industry of the members of this court who decided the Hammond case (Chief Justice Groner and Justices Edgerton and Rutledge, the latter now an associate justice of the Supreme Court of the United States) it may properly be inferred, or surmised, that the Isbell case was examined and considered carefully before its statement of the rule was adopted. We may safely assume also that the court exhausted the authorities on the subject, and certainly it read and considered the dissenting opinion in the Isbell case. That dissent had the same quarrel with the statement quoted by us in the Hammond case which the majority raise in deciding this case. The basis of the dissent is identical with the basis of the court’s 'opinion here. It follows, therefore, that there was nothing inadvertent about the adoption of the Hammond rule. It was deliberately done by an able and unanimous court, after having attention sharply called to the theory which the opinion in this case says is the “true rule.” The case of Estep v. United States, 5 decided in 1943 by the Court of Appeals for the Tenth Circuit, is instructive in connection with the consideration of the present case. Estep, Deluke and Henry were convicted of having devised a fraudulent scheme for the sale of mining stock and of having used the mail in connection with the sale of the stock in violation of the mail fraud statute, and of a conspiracy to devise the fraudulent scheme. It was amply proved that Henry and Deluke were guilty, although they maintained that they had an honest belief in the representations and promises which they had made. Upon the trial they reasserted their faith in the potentialities of the mining property. It was undisputed that the money obtained by the sale of the stock, with the exception of certain commissions, was used in the development and operation of the mines. Estep contended that if there was a fraudulent scheme or conspiracy, he was never a party to it and never a conscious’ participator therein. The Circuit Court of Appeals held that the evidence was entirely sufficient to justify the conclusion of the jury that Henry and Deluke conspired to devise the scheme to defraud, and that one or more overt acts were committed in the furtherance of the conspiracy. But the court also held that there was no evidence reasonably tending to show that Estep or *242 iginally devised a scheme to defraud, or joined a conspiracy. It was contended by the government that he knowingly aided and assisted in the execution of the fraudulent scheme, and that he joined and adopted the conspiracy, and thereafter consciously participated therein by affirmative acts from which the jury was justified in holding him criminally responsible. It is true, the court said, that guilty knowledge or criminal intent is usually a factual question for the jury, and is seldom provable by direct evidence, but must be inferred from facts and circumstances which reasonably tend to manifest a mental attitude. Quoting from Direct Sales Co., Inc., v. United States, 319 U.S. 703 , 63 S. Ct. 1265 , 87 L.Ed. 1674 , the court said: “Without the knowledge, the intent cannot exist. * * * Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal.” The court then added: “Often the line between honest belief and purposeful misrepresentation is fine and indistinct, between the two however lies guilt or innocence, and where the evidence is evenly balanced between guilt and innocence, a conviction cannot stand.” The evidence against Curley was much weaker than that against -Estep, but the proof in the two cases was, in some respects, strikingly similar. For example, Estep introduced Deluke to the members of his church and urged them to buy the stock of the various corporations. His intense interest in the venture greatly influenced the members of his church to -purchase the stock. The court said that there could be no doubt that Estep was instrumental in the effectuation of a scheme which the jury found to be criminally fraudulent. But there was no direct proof tending to show that Estep profited, or hoped to profit, from the sale of the stock except that it might benefit the church of which he was the founder and leader. He was subjected to the same sales’ psychology as the other members of his church, and his resistance was no greater. Having recited more in detail what we have summarized, the court significantly said: “From the evidence, it is as reasonable to conclude that Estep was victimized by Henry and Deluke, as that he was a conscious participator in the fraudulent scheme or the conspiracy. We conclude that the verdict of the jury as to Estep is not supported by that degree of proof which we deem essential to a finding of guilty knowledge and criminal intent, and accordingly the judgment is reversed as to him.” In like -manner, in this case it is as reasonable to conclude that Curley was victimized by Fuller, as that he was a conscious participator in the fraudulent scheme. It is my opinion, therefore, that the verdict of the jury as to Curley is not supported by that degree of proof which I deem essential to a finding of guilty knowledge and criminal intent, and accordingly I think the judgment as to him-ought to be reversed. My view of the evidence against Curley and of the sound and salutary principle of law which I think requires that he should go acquit is well stated in the dissenting opinion in Warner v. United States : 6 “Coming now to the evidence tending to prove defendant’s guilt under Count 1 of the indictment, and what do we find? There is absolutely no direct or positive evidence. The sole reliance of the government is, and must rest upon, mere circumstantial evidence. * * *. And how does he (the writer of the prevailing opinion) attempt to justify the fact that the circumstantial evidence found in the record is sufficient to support the conviction? On the thought that, to his mind, the circumstances in evidence, when compared, tend more strongly to sustain the guilt than the innocence of defendant. As this -position must depend more upon the cast of mind than upon the circumstances themselves, I had not thought such a view of a case could be taken. I had thought the rule to be, before circumstantial evidence proved anything, this evidence must arise to such dignity of proof as to exclude any and every other reasonable hypothesis than the guilt of the accused. I had thought this theory of circumstantial evidence was simple hornbook law, not needing any author *243 ity in its support. If it does, the books are full of cases laying down this rule, that circumstantial evidence which fails to arise to this high degree of proof is no evidence at all (and) 7 proves nothing. “Such, to my mind, is the law and the rule to be at all times applied or the presumption of innocence with which a defendant stands before the bar of justice clothed by the law is not overcome. Who can say, who does say, in this case, the evidence in this case arises to such dignity as to exclude every other reasonable theory than the guilt of defendant?” Even the majority opinion in the Warner case says that “Substantial evidence was requisite that was more consistent with his guilt than with his innocence.” 8 This is not in accord with the court’s opinion in this case which squarely holds that the function of determining reasonable doubt vel non “is the jury’s function, provided the evidence is such as to permit a reasonable mind fairly to reach either of the two conclusions.” Such a statement is so far from being either safe or sound that I am unable to agree with the majority and must, with all deference, dissent. Justice Stone said in United States v. Falcone, 311 U.S. 205, 210 , 61 S. Ct. 204, 207 , 85 L.Ed. 128 : “The gist of the offense of conspiracy as defined by § 37 of the Criminal Code, 18 U.S. C. § 88, 18 U.S.C.A. § 88 , is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy. (Cases cited.) Those having no knowledge of the conspiracy are not conspirators * * * ; and one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge.” Mr. Justice Rutledge, wilting in Direct Sales Co. v. United States, 319 U.S. 703 , 03 S.Ct. 1265 , 1268, 87 LEd. 1674, said that the Falcone decision “comes down merely to this, that one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; * * * ” He then adds, “Without the knowledge, the intent cannot exist. United States v. Falcone, supra. * Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal.” At this point, Mr. Justice Rutledge appended the following footnote, which seems to me to be of particular significance in the present case: “Although this principle was there applied to aiding and abetting a conspiracy among others, it has at least equal force in a situation where the charge is conspiring with another to further his unlawful Conduct, without reference to any conspiracy between Mm and third persons.” 75 U.S.App.D.C. 397 , 127 F.2d 752 . 54 App.D.C. 10, 11 , 293 F. 829, 830 . Commonwealth v. Webster, 5 Cush. 295 , 320, 52 Am .Dec. 711. 140 F.2d 40, 45 . 10 Cir.. 1932. 60 F.2d 700 . 702. Patent omission supplied. In Williams v. United States, 78 U.S. App.D.C. 322, 140 F.2d 351, 352 , this court s’aid: “To sustain it (the conviction) we should have to find, at least, that the evidence is more consistent with guilt than with innocence. Warner v. United States, 10 Cir., 60 F.2d 700 .” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644083. Public record. Not legal advice.