Before MARIS, KALODNER and HASTIE, Circuit Judges.
Following a jury trial, defendant was found guilty and sentenced for violation of 18 U.S.C. § 659*fn1 upon an indictment which charged him with possession of stolen goods, moving in interstate commerce, knowing them to have been stolen. He prosecutes this appeal from the District Court's judgment of conviction, entered following its denial of his motion for judgment of acquittal or for a new trial,*fn2 on these grounds: the indictment did not state a cause of action; there was insufficient evidence to sustain the jury's verdict; the District Court erred in its instructions to the jury, and, in permitting the prosecuting attorney, in his opening speech to the jury, to make prejudicial statements.
Section 659, among other things, makes it a crime to possess goods stolen in interstate commerce, from any of a number of enumerated places (station, platform, depot, etc.), with knowledge that they had been stolen.
The indictment in the instant case contained two counts.
The first count charges that on or about March 15, 1955, defendant had in his possession in Scranton, Pennsylvania, knowing it to have been stolen, a Bell and Howell movie projector; the projector was placed in interstate commerce on or about December 8, 1954, at Woodside, Long Island, New York, consigned to Clarksburg, West Virginia, and was stolen from the Railway Express Agency, Inc. platform in New York City, New York, on or about that date.
The second count charges that on or about December 15, 1954, defendant had two Rolleicord cameras in his possession in Scranton, Pennsylvania, knowing them to have been stolen; that one of the cameras ("camera No. 1") was placed in interstate commerce on or about November 24, 1954, at New York City, consigned to Fort Worth, Texas, and was stolen from the Railway Express Agency, Inc. platform in New York City on or about that date; the second camera ("camera No. 2") was placed in interstate commerce on or about September 21, 1954, at New York City, consigned to Warrington, Florida, and was stolen from the Railway Express Agency, Inc. platform in New York City on or about that date.
The evidence may be summarized as follows:
The movie projector, and the two cameras listed in the indictment, were placed by employees of the Railway Express Agency on its platforms in the state of New York during the latter part of 1954 in the course of shipment to destinations in distant states. They were stolen. They subsequently came into the possession of the defendant in Scranton. The defendant sold the projector and the two cameras to Joseph Hannis, a Scranton dealer in photographic equipment and supplies, through an intermediary, Alexander Gull, a clerk and delivery boy employed in a local grocery store. The projector, which had an invoice price of $489.33 and a retail price of $734.00 was sold for $375.00. Camera No. 1, which had an invoice price of $78.30 plus a federal excise tax of $7.83, and a retail price of about $148.00, was sold for $75.00. Camera No. 2, which had an invoice price of $74.40 plus a federal excise tax of $7.45, was sold for $75.00.*fn3 The defendant paid Gull commissions for making the sales: $25.00 for the projector, $10.00 for camera No. 1 and $15.00 for camera No. 2.
Gull, in testifying to the sales, said that the defendant had delivered the projector to his home and that he had picked up the two cameras at the defendant's house. He also testified that the defendant had asked him to withdraw a confession which he had signed and given to FBI agents and that defendant had told him he was going to deny the sales of the cameras.
An FBI agent testified that when he questioned defendant relative to the cameras during the course of an investigation in July, 1955, the defendant said he had neither bought nor sold any cameras within a year from the date of the questioning. On that score Hannis testified that he purchased camera No. 1 on or about December 17, 1954 and camera No. 2 at the end of February or early in March, 1955.
We will first direct our attention to the specific instructions in the District Court's charge to the jury which the defendant asserts were prejudicial.
At one point in its charge to the jury the District Judge stated:
"Now in this particular kind of charge, the charge, as we say, is that he had in his possession certain articles knowing the same to have been stolen, that is the charge, possession of recently stolen goods casts upon those holding them the burden of explaining their possession, and a jury may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence.
"Now we are also obliged to charge that in this country, because of the presumption of innocence, Congress has passed a statute and we are required to say to you that the defendant has failed to testify. Mr. Brennan pointed that out to you in his closing. The fact that the defendant did not testify in this case should not create any presumption of guilt against him nor constitute any admission on his part. It should not have any influence on you in arriving at your verdict. His guilt or innocence is to be determined by you from the evidence which was introduced in the case and from that alone.
"Now I say that is the law, but I also say that it is the law that possession of recently stolen goods casts upon those holding them the burden of explaining their possession, and a jury may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence.
"The defendant has a right under the statute and under the law to remain silent and from the mere fact that he does not testify you are not to draw any improper inferences."
With reference to this instruction we agree with the defendant that it constituted prejudicial error.*fn4
An essential element of proof of a violation of Section 659 is that the defendant knew that the goods of which he was in possession were stolen, but it is clear that such knowledge may be proved by circumstantial evidence.*fn5 Unexplained possession of recently stolen goods permits the jury to infer that the possession is guilty possession; that the defendant knew that the goods were stolen.*fn6 It is not necessary to establish that defendant knew the goods were in interstate commerce when they were stolen.*fn7
However, as Judge Learned Hand pointed out in United States v. Sherman, 2 Cir., 1948, 171 F.2d 619, it is reversible error for the trial judge to charge a jury in possession of stolen goods cases that there is a "presumption" of defendant's guilty knowledge of the theft. Said Judge Hand (at page 624):
"While we have held a number of times that the jury may find in the accused's unexplained possession of stolen goods enough evidence to convict, we have never intended to indicate that the jury should be directed that it was required by a rule of law to make this inference. In discussions among lawyers and judges of the difference between a permissible inference and a presumption, the terminology may be unimportant. But the jury may be misled by ...