United States v. Allen

159 F.2d 594, 1946 U.S. App. LEXIS 2510

Opinions

FRANK, Circuit Judge.

Without doubt, there was sufficient evidence (1) that defendant knowingly had possession of the package and (2) that the package contained the stamps. But more was essential: The defendant could not be convicted absent evidence that he knew the contents of the package. In that respect the evidence was insufficient.

True, Epstein testified that he asked Allen “where he got these stamps,” and that Allen “said they were left there by a friend.” True, too, Dalton testified that, after the package was opened, “Epstein showed [Alien] the stamps” and that Allen then said “he got those stamps” from Frank. But neither Epstein nor Dalton purported to be reporting Allen’s statements verbatim nor in their entirety. And, in the light of (1) Epstein’s testimony that Allen “never claimed to know what was in that package” and (2) Dalton’s testimony that Allen did not “say anything which would indicate that he knew what was in the package before Epstein opened it,” we think their testimony concerning Allen’s statement cannot reasonably be taken to mean more than that the package, with contents unknown to him, had been given to him by Frank.

It is suggested that, had defendant been unaware that the package contained stamps, he would surely have shown surprise when Epstein opened it. But the government did not ask these witnesses to— and, to repeat, they did not — testify as to all the defendant said and did at the time. For all we know, he may have manifested such surprise. Absent any evidence on the subject, there was nothing from which the jury could reasonably infer that he did not. The burden was on the government to offer evidence of that fact, not on the defendant to disprove it.

As, then, there was no evidence that Allen knew that he had stamps in his possession, the judge should have granted Allen’s motion to set aside the verdict.

Reversed.