John Francis Devine v. United States

Appellant was convicted by a jury on three counts of violating Title 18 U.S.C. § 1702 , which provides in pertinent part:

The court sentenced appellant to five years on each count, to run concurrently. Timely appeal is taken here, and this Court has jurisdiction. 28 U.S.C. § 1291 .

Count I charged appellant with taking on February 21, 1959 a letter addressed to Hays Company, 311 East Fourth Street, Los Angeles 13, California. Count II charged appellant with taking on February 21, 1959 a letter addressed to Irving Blitz & Associates, 421 South Wall Street, Los Angeles 13, California. Count III charged appellant with taking on February 21, 1959 a letter addressed to Philip Jaffe, 338 East Fourth Street, Los Angeles 13, California.

The evidence against appellant was overwhelming as to his guilt in taking letters, once in United States mail, from the places to which they were addressed. Despite this evidence, appellant seeks reversal. Two errors are charged:

1. The insufficiency of the evidence (a) to sustain the elements of the crime, and (b) to overcome the presumption of appellant’s innocence.

2. Prejudicial misconduct on the part of government counsel.

The basis of the first…