Daugerdas Retrial Jury Instructions - Part 02 Circumstantial Evidence (11/13/13)

Judge Pauley's instructions on Circumstantial Evidence and a related topic of Inferences (see full set here) are as follows:

Direct and Circumstantial Evidence  

There are two types of evidence that you may consider in reaching your verdict—direct evidence and circumstantial evidence.  

Direct evidence is evidence that proves a disputed fact directly. For example, where a witness testifies to what he or she saw, heard or did, that is called direct evidence.  

Circumstantial evidence is evidence that tends to prove a disputed fact by proof of other facts. To give a simple example, you may remember the story of Robinson Crusoe, who was marooned on a deserted island. He spent years thinking he was alone, until one day, as he walked along the beach, he noticed large footprints in the sand. Because his feet were too small to have made them, Robinson concluded that somebody else must have left the footprints, even though he had not seen anyone else—in other words, he had no direct evidence of that fact. But, it would be reasonable for him to conclude from the footprints on the beach that, in fact, he was not alone.  

That is all there is to circumstantial evidence. Using your reason and experience, you infer from established facts the existence or the nonexistence of some other fact.  

The law makes no distinction between direct and circumstantial evidence. Circumstantial evidence is of no less value than direct evidence, and you can consider either or both, and can give them such weight as you conclude is warranted. 

Inferences  

In their arguments, the parties have asked you to infer, on the basis of your reason, experience, and common sense, from one or more established facts, the existence of some other fact. The process of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a reasonable deduction or logical conclusion which you, the jury, are permitted to draw—but not required to draw—from the facts which have been established by either direct or circumstantial evidence. In drawing inferences, you should exercise your common sense.

 As with most general instructions, these seem to be mainstream and unobjectionable.

Circumstantial evidence plays a large role in crimes where mens rea is required, because that requires the jury to determine what was in the defendant's mind when he or she committed the actus reus.  Unless the defendant admits the mens rea (unlikely if the defendant has not pled guilty), the jury must infer mens rea from the circumstantial evidence.  The quantum of mens rea for tax crimes is willfulness -- specific intent to violate a know legal duty (often referred to as the Cheek standard of willfulness).  (I set aside the possibility that conscious avoidance, however, nominated, may suffice, because that is a big issue I have discussed in various blogs before.)

I thought readers might find helpful several excerpts from my Federal Tax Crimes Book dealing with circumstantial evidence (footnotes omitted).

Proving Willfulness.

Willfulness is a state of mind.  There are no witnesses and only in a rare case would a defendant admit the required state of mind.  State of mind is thus usually provable only through circumstantial evidence -- proof of acts from which the state of mind can be inferred.  Consider the following: 

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United States v. Ytem, 255 F.3d 394 (7th Cir. 2001) 

POSNER, CIRCUIT JUDGE.  

The defendant, an accountant who worked in Illinois, embezzled funds of his employer by writing, without authorization, three checks to himself aggregating more than $135,000 during a two-month period and depositing them in his personal account in a Maryland bank that happens to have offices only in that state and in Virginia.  The locations of his place of work and of his bank are relevant because he was charged not only with willful failure to report his embezzled income on his federal income tax return for the year in which he received that income, 26 U.S.C. sec. 7206(1), but also with having transported money obtained by fraud across state lines.  18 U.S.C. sec. 2314.  He was convicted of both crimes, was sentenced to a total of 27 months in prison, and appeals, challenging only the sufficiency of the evidence to convict him.   

The appeal bespeaks a deep or perhaps desperate misunderstanding of the law of evidence, especially with regard to the second charge.  It is conceded that all the government had to show was that the defendant had caused the checks to be transported across state lines.  It is also conceded that the checks indeed ended up in either a Maryland or a Virginia office of the bank in which they were deposited and that one of the checks was accompanied by a note to the bank in the defendant's handwriting telling the bank what to do with the check.  Presumably the defendant mailed the checks (and the accompanying note) to the bank but there is no direct evidence of this; that is, no one testified to having seen the defendant mail these items and he does not admit having mailed them.   He argues that therefore he cannot be proved guilty beyond a reasonable doubt of having caused them to be transported across state lines.  

He admits that certainty is not required to establish guilt beyond a reasonable doubt, that a conviction based on fingerprint evidence for example cannot be overturned by pointing out that there is some minute probability of erroneous fingerprint identification.  But he insists that a conviction can survive remote doubts about its correctness only when it is based on computed probabilities; common sense probabilities will not do.  That is wrong.  Common sense as well as science is a source of justified true beliefs, including warranted confidence that certain probabilities though unquantified are so slight that they do not create reasonable doubt.  Often this confidence is formed by comparing hypotheses and sensibly adjudging one to be vastly more probable than the others, even taken all together.  This case illustrates that routine and unexceptionable reasoning process nicely.  While it is conceivable that the defendant did not cause the checks to end up in Maryland or Virginia -- maybe after writing them and the accompanying note he changed his mind and threw them in the wastepaper basket in his office and the cleaning people picked them up after hours and mailed them to the defendant's bank -- this hypothesis is so unlikely to be true that in the absence of any evidence in support of it (and there is none) a rational jury would be entirely justified in dismissing the probability of its being true as minute in relation to the probability that the defendant himself caused the checks to end up where they did; indeed a jury would be irrational to conclude otherwise.   

The situation is a little more doubtful with respect to the defendant's conviction for willfully filing a false return. To be convicted of that offense he had to be proved to have known (at least if he made an issue of his knowledge) that illegal income is taxable and so his income from embezzlement should have been reported, 26 U.S.C. sec. 7206(1); Cheek v. United States, 498 U.S. 192, 201-02 (1991); [other citations omitted], since otherwise the return though false would not be willfully so; and again there is no direct evidence that he knew -- evidence that could only have taken the form of an admission by him, for that is the only form that direct evidence of a person's state of mind can take. (There are no eyewitnesses to the mental contents of a person's head, as opposed to external phenomena, such as the placing of a letter in a mailbox.)  But the circumstantial evidence was convincing, and the absence of direct evidence therefore no bar to conviction.  We are, however, doubtful about the validity of the government's argument that the defendant’s efforts (which incidentally were rather feeble) to conceal the embezzlement was evidence that he knew that embezzled income is taxable.  For he would have had an incentive to conceal the embezzlement in order to save his job and avoid prosecution for embezzlement, even if embezzled income were tax-free.  But there is plenty of other circumstantial evidence of the defendant's intent to avoid tax.  The defendant was an accountant, moreover an experienced one; he personally prepared the fraudulent tax return; the sums taken were large (they amounted to 75 percent of his total income during the period of the embezzlement), and (the weakest bit of evidence) he used the money for ordinary expenses, the sort of thing people usually defray from taxable income.  Furthermore, the fact that illegal income is taxable is widely known, even among lay people.  Everyone knows that Al Capone, for example, was nailed for income-tax evasion, not for the bootlegging, loan-sharking, extortion, and prostitution that generated the income.  Accountants know better than anyone except tax lawyers that illegal income is taxable.   

It is possible nevertheless that this experienced accountant who prepared his own tax return thought that illegal income was tax exempt, but it is too remote a possibility to compel an acquittal, at least in the absence of any evidence that might make it plausible, such as that the defendant suffered from some psychiatric disorder that had deranged his knowledge of elementary tax law or his ability to use that knowledge in filling out his income tax return.  Anything is possible; there are no metaphysical certainties accessible to human reason; but a merely metaphysical doubt (for example, doubt whether the external world is real, rather than being merely a dream) is not a reasonable doubt for purposes of the criminal law.  If it were, no one could be convicted. As with the transportation of the checks, so with the charge of willfully filing a false return, the jury had to choose between two hypotheses.  One was that the defendant knew that embezzled income is taxable.  The other was that he thought embezzled income tax-free -- a token of the government's affection for embezzlers and other thieves.  The former hypothesis was, in the circumstances, far more likely than the latter. That is enough to compel affirmance. There is no suggestion that the jury was improperly instructed or that it might have been misled by any error committed at the trial.  

Affirmed.   

---------[END OF YTEM CASE]------------- 

For example, in a criminal prosecution for failing to file for years 11-13, the Government must prove that the defendant knew of the duty to file and failed to file for years 11-13.  The failure to file is the objective act, but it does not show, of itself, that the failure to file was willful (or in the Cheek language, an intentional violation of a known legal duty).  But, the Government might show that the taxpayer had filed returns for the years 1-10 immediately preceding the failure to file years.  Certainly, a jury can infer from that pattern of filing that the defendant knew of the legal obligation to file and, despite that knowledge, chose not to file.  In the cases that the Government brings, there will always be other facts from which the inference of willfulness can be made, but that its how it is done.

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Circumstantial Evidence and Conspiracies 

But, even with that retreat [from the slight evidence rule], the conspiracy charge puts pressure on that commitment to convict only upon proof beyond a reasonable doubt in other ways that cannot easily be fixed even when it is recognized.  The risk is that a defendant will be convicted by mere proximity to the conspiracy – guilt by association with persons who were conspirators.  In most cases, there is no conspiratorial written agreement whereby the members and objects of the conspiracy are easily identified with a fair degree of certainty (or beyond a reasonable doubt, if you will).  A conspiracy is usually proved by circumstantial evidence that requires connecting a number of dots whose relationship may be uncertain and permits the jury to apply some guesses, called inferences to put the best spin on them, as to the scope of the conspiracy in terms of membership and objects.  In this environment, guilt by association becomes a real concern for defense attorneys – and perhaps, for the overly aggressive prosecutor, an opportunity to be exploited.  It is thus good, at a minimum, to eliminate those notions that create undue risk that the jury will misperceive its task. 

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In Grunewald v. United States, 353 U.S. 391 (1957), the Government asked the Court to hold that concealing the substantive crime after its commission was within the implied scope of the conspiracy to commit the substantive crime and hence the overt acts of concealment set the statute of limitations for prosecution.  The Court rejected that attempt: 

In effect, the differentiation pressed upon us by the Government is one of words rather than of substance.  In Krulewitch [Krulewitch v. United States, 336 U.S. 440 (1949)] it was urged that a continuing agreement to conceal should be implied out of the mere fact of conspiracy, and that acts of concealment should be taken as overt acts in furtherance of that implied agreement to conceal. Today the Government merely rearranges the argument.  It states that the very same acts of concealment should be used as circumstantial evidence from which it can be inferred that there was from the beginning an “actual” agreement to conceal. As we see it, the two arguments amount to the same thing: a conspiracy to conceal is being implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment. There is not a shred of direct evidence in this record to show anything like an express original agreement among the conspirators to continue to act in concert in order to cover up,  for their own self-protection, traces of the crime after its commission. 

Prior cases in this Court have repeatedly warned that we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions. The important considerations of policy behind such warnings need not be again detailed.  See Jackson, J., concurring in Krulewitch v. United States, supra. It is these considerations of policy which govern our holding today.  As this case was tried, we have before us a typical example of a situation where the Government, faced by the bar of the three-year statute, is attempting to open the very floodgates against which Krulewitch warned.  We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished.

Finally, most often circumstantial evidence will be deployed against the defendant in a criminal case where the crime requires mens rea -- in a tax case, willfulness -- which is inside the defendant's mind. But, circumstantial evidence works both ways.  A defendant can rely upon circumstantial evidence to show that any element of the crime is not present.  Specifically, as to mens rea, the defendant can rely upon circumstantial evidence.  I offer the following with regard to the mens rea defense of good faith in my Federal Tax Crimes book (footnotes omitted):

Defendants who want to emphasize their good faith with the hope that the evidence bearing on good faith will at least dissuade the jury from finding willfulness beyond a reasonable doubt.  Thus, they will want the judge, by separate instruction, to instruct that good faith negates willfulness.  That good faith nuance, while implicit in the general willfulness instruction, is not as explicit as defendants desire.  Generally, courts will give the specific good faith instruction only if the evidence somehow affirmatively puts good faith in play – makes it a real issue for the jury.  How does the defendant do that?  The most direct way is for the defendant to testify as to his or her good faith.  But, in order to do that, the defendant will be subject to cross-examination; frequently, the defense team will conclude that the potential benefits of the defendant testifying (including the good faith opportunity) are less than the risks of the defendant testifying.  So the defendant will not testify.  Notwithstanding some noises that the defendant is required to testify to put good faith in play, the courts soundly reject that notion.  Other circumstantial evidence, including perhaps lay opinion evidence as to the defendant’s mental state, may be sufficient to put that issue in play and, if it does, the trial judge should give the instruction..

Obviously, for example, the defendant may deploy circumstantial evidence as a defense to the conspiracy charge as will.