United States v. Bradley Sisson Barham, Also Known as Bradley Anderson

466 F.2d 1138 UNITED STATES of America, Plaintiff-Appellee, v. Bradley Sisson BARHAM, also known as Bradley Anderson, Defendant-Appellant. No. 72-1402. United States Court of Appeals, Ninth Circuit. Sept. 5, 1972. Rehearing Denied Oct. 16, 1972. Howard Lonergan (argued), Benhardt E. Schmidt, Portland, Or., for defendant-appellant. Mallory C. Walker, Asst. U.S. Atty. (argued), Sidney I. Lezak, U.S. Atty., Portland, Or., for plaintiff-appellee. Before JERTBERG, KOELSCH and TRASK, Circuit Judges. JERTBERG, Circuit Judge: 1 Appellant appeals from judgments of conviction pronounced upon him following a jury trial on a three-count indictment charging in Counts One and Two that with intent to defraud he passed and uttered forged and counterfeited obligations of the United States, which he then knew to be forged and counterfeited, in violation of Title 18 U.S.C. Sec. 472 ; and in Count Three that with intent to defraud he possessed and concealed forged and counterfeited obligations of the United States which he then knew to be forged and counterfeited in violation of Title 18 U.S.C. Sec. 472 . 2 He was sentenced to the custody of the Attorney General for a period of ten years on each…

Appellant appeals from judgments of conviction pronounced upon him following a jury trial on a three-count indictment charging in Counts One and Two that with intent to defraud he passed and uttered forged and counterfeited obligations of the United States, which he then knew to be forged and counterfeited, in violation of Title 18 U.S.C. Sec. 472 ; and in Count Three that with intent to defraud he possessed and concealed forged and counterfeited obligations of the United States which he then knew to be forged and counterfeited in violation of Title 18 U.S.C. Sec. 472 .

He was sentenced to the custody of the Attorney General for a period of ten years on each count, all sentences to run concurrently.

The only issue presented for review, as stated by appellant, is: “Was there evidence that defendant knew the money was counterfeit?”

The essential facts, stated in a manner most favorable to the Government, may be summarized as follows:

On the morning of June 29, 1971, the appellant purchased a money order at the Commercial Bank in Newberg, Oregon, made payable to Bradley Anderson in the amount of $250.00, in exchange for twelve $20.00 bills and one $10.00 bill. The name signed to…

(dissenting).

I respectfully dissent. Granted, an appellate court reviewing a conviction must view the evidence in a light most favorable to the government [Glasser v. United States, 315 U.S. 60, 80 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942);] but this record reveals no evidence, substantial or otherwise, tending to prove the conclusion, let alone prove beyond a reasonable doubt, appellant’s scienter.

Knowledge can, of course, seldom be proven directly, and in the great majority of counterfeiting cases, the prosecution offers circumstantial proof from which the jury can infer the requisite knowledge. See, e. g., United States v. Bean, 443 F.2d 17, 18-19 (5th Cir. 1971); United States v. Knight, 426 F. 2d 818 (4th Cir. 1970); Ruiz v. United States, 374 F.2d 619 (5th Cir. 1967). “Of course either direct or circumstantial evidence may fail to prove the fact in issue — direct evidence because thg credibility of the witness is destroyed; circumstantial evidence for that reason, or because the inference from the proven circumstances to the fact in issue is too speculative, or remote.” United States v. Nelson, 419 F.2d 1237, 1240 (9th Cir. 1969). When reviewing evidence for sufficiency the…