Stoppelli

183 F.2d 391 STOPPELLI, v. UNITED STATES. No. 12373. United States Court of Appeals Ninth Circuit. June 26, 1950. Rehearing Denied Aug. 2, 1950. Writ of Certiorari Denied Oct. 23, 1950. See 71 S.Ct. 88 . J. W. Ehrlich, San Francisco, Cal., for appellant. Frank J. Hennessy, U.S. Attorney, Joseph Karesh, Asst. U.S. Attorney, San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, BONE, Circuit Judge, and GOODMAN, District judge. GOODMAN, District Judge. Stoppelli and four others were named defendants in a three count indictment. The first count charged the sale of heroin. Harrison Anti-Narcotic Act, 26 U.S.C.A. §§ 2553 , 2557. The second count charged the concealment of heroin. Jones-Miller Act, 21 U.S.C.A. § 174 . The third count charged conspiracy to commit the offenses charged in the first two. All defendants were convicted by a jury on all counts. The District Judge granted Stoppelli's motion for a new trial as to the third (conspiracy) count. Stoppelli appeals from the judgment and the concurrent sentences of five and six years imprisonment imposed on the first and second counts. Stoppelli's co-defendants participated in the attempted sale in Oakland,…

Stoppelli and four others were named defendants in a three count indictment. The first count charged the sale of heroin. Harrison Anti-Narcotic Act, 26 U.S.C.A. §§ 2553 , 2557. The second count charged the concealment of heroin. Jones-Miller Act, 21 U.S.C.A. § 174 . The third count charged conspiracy to commit the offenses charged in the first two; All' defendants were convicted by a jury on all counts.' The District Judge granted Stoppelli’s motion for a new trial as to the third (conspiracy) count. Stoppelli appeals from the judgment and the concurrent sentences of five and six years imprisonment imposed on the first and second counts.

Stoppelli’s co-defendants participated in the attempted sale in Oakland, California, of a non-original unstamped package containing 12 envelopes of the same size, color and appearance, each containing part of a total quantity of 10 ounces and 436 grains of heroin. The package of heroin was brought from New York by one Tony Sapoli. Stoppelli had been -in New York and came to the jurisdiction of the trial court to surrender after the indictment was filed and a warrant of arrest issu'ed. On one of the envelopes was appellant’s fingerprint. The *393…

(dissenting).

I dissent from the decision of this court on an appeal from a conviction had on circumstantial evidence, here a single isolated fact unsupported by direct testimony, that “It is not for us to say that the evidence was insufficient [to go to the jury] because we, or any of us, believe that inferences inconsistent with guilt may be drawn from it.”

The exact reverse has been held in our recent case of Karn v. United States, 9 Cir., 158 F.2d 568, 570 , and in the following cases from the indicated circuits: Kassin v. United States, 5 Cir., 87 F.2d 183, 184 ; Union Pac. Coal Co. v. United States, 8 Cir., 173 F. 737, 740 ; Nosowitz v. United States, 2 Cir., 282 F. 575 ; Graceffo v. United States, 3 Cir., 46 F.2d 852, 853 ; Leslie v. United States, 10 Cir., 43 F.2d 288 ; all cases later considered.

These cases establish that it is our duty in this criminal appeal to determine whether a single circumstantial fact upon which the conviction was had warrants- the inference of innocence as much as it warrants one of guilt. If the single fact warrants two such conflicting inferences, the appellate court must set aside the judgment of conviction.

The issue here is whether…