USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 94-2123

UNITED STATES OF AMERICA,

Appellant,

v.

ANTHONY G. OLBRES and SHIRLEY A. OLBRES,

Defendants, Appellees.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

__________________________

Before

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

_________________________

Karen Quesnel,
_____________
of

Justice, with

General,

Attorney, Tax Division, United

whom

Loretta C. Argrett, Assistant

___________________

Robert E. Lindsay and

__________________

Division, and

States Dep't

Paul M. Gagnon,
______________

brief, for the United States.

Alan Hechtkopf,
______________
United States

Attorney

Attorneys, Tax

Attorney, were

on

Terry Philip Segal, with whom Matthew H. Feinberg, Matthew

___________________
____________________ _______
A. Kamholtz,
___________

Segal & Feinberg, Steven M. Gordon,

_________________ _________________

and Shaheen,
________

Cappiello, Stein & Gordon were on joint brief, for appellees.

_________________________

__________________________

July 26, 1995

__________________________

SELYA, Circuit

Judge.

In

1989, an

employee of

the

SELYA, Circuit Judge.

______________

Internal Revenue Service (IRS) noticed a Rolls Royce belonging to

the

defendants, Anthony

restaurant

He initiated

an investigation

an indictment, a trial,

a jury

trumped the jury's verdict,

judgments of acquittal.

that led,

succession, to

The

an

for income tax

district court

then

granting the defendants' motions for

1994) (D. Ct. Op.).2

We reinstate the convictions.

BACKGROUND
BACKGROUND

in

taxman's interest.

and a conviction

verdict.1

See United States v. Olbres, Cr. No. 93___ ______ ______

______

27-1-2-M (D.N.H. Sept. 30,

I.
I.

parked outside

The presence of so opulent

bucolic a setting piqued the

evasion pursuant to

appeals.

Shirley Olbres,

in Exeter, New Hampshire.

a vehicle in so

audit,

and

The government

We

start

by

relating

uncontradicted) facts that serve

perspective.

certain

(essentially

to put the appeal into

In 1974, the Olbreses

initial

he an industrial designer,

she a schoolteacher destined to become a self-taught bookkeeper

launched a proprietorship, Design Consultants (DC),

construct, and erect exhibit

to conceive,

booths for trade shows.

At first,

____________________

1The statute of conviction provides in relevant part:

Any

person

who

willfully

manner to evade or
[the

attempts

in any

defeat any tax imposed by

Internal Revenue

Code] or

the payment

thereof shall, in addition to other penalties

provided by law, be guilty of a felony . . .

26 U.S.C.

7201 (1988).

2Although
unpublished, the
543520.

the

district

interested

court's
reader can

thoughtful
locate

opinion

it at

1994

is

WL

the proprietors comprised

grew

steadily,

and

the entire work

by 1987

DC

revenues in excess of $1,900,000.

of the business,

toiling

employed

mostly

at

23

Despite the

Shirley Olbres continued

part-time,

force.

home.

The

business

persons and

phenomenal growth

to handle the

Her

had

working

books,

materials

consisted of an invoice log (in which she recorded bills sent and

payments

received), and three journals reflecting, respectively,

cash receipts, cash disbursements, and petty cash.

Beginning in 1976, the defendants retained the services

of an accountant,

Wilson Dennett.

Dennett compiled income

tax

returns and financial statements, but did not perform bookkeeping

or kindred services.

information

He prepared the tax returns in reliance

supplied by

issue on this appeal

the defendants.

1987

For

the tax

then met with Dennett to answer questions.

completed the

return,

year at

Shirley Olbres drafted a summary of

the defendants' books and records for Dennett's use.

husband

on

the defendants

came

to his

She and her

When Dennett

office

and

signed it.

The

1987.

These

defendants maintained various bank accounts during

included business checking and

savings accounts at

Indian

business

Head Bank

receipts

occasionally

savings

(IHB).

into

deposited

account.

Defendants

the

business

business

While

deposited

checking

receipts

Shirley

most of

Olbres

into

account,

the

recorded

their

but

business

all

sums

deposited into the business checking account in the cash receipts

journal,

she did

not make

comparable entries

showing deposits

made

to

frame,

the business

the defendants

accounts at a

savings account.

also

second bank,

During the

same time

maintained payroll

and petty

cash

and a rent-receipts

account in

the

name of Seabrook Properties at yet a third financial institution.

The IRS started its investigation into the

tax

returns in

laboring oar.

1989.

Revenue Agent

defendants'

Leonard Kaply

pulled the

He determined, inter alia, that the defendants had

_____ ____

substantially underreported

income tax returns

their income on their

for the years

joint federal

1986 through 1988.

For 1987,

Kaply's audit indicated that the defendants had failed to

nearly

$750,000 in

income

from three

sources:

(1)

report

business

receipts deposited directly into the business savings account and

not recorded in

the cash

receipts journal; (2)

rebates from

transportation company that had contracted with DC

show booths from

place to

rental property.

In the course of the audit, the defendants gave

Agent

Kaply

misplaced

savings

the cash

the invoice

receipts

log

journal,

and the

certain income

but

passbook

claimed to

for the

from

have

business

account (either of which would have revealed much of the

unreported income).

IHB that

place;3 and (3)

to move trade

It was only when the IRS issued a summons to

it discovered the

business savings

account, with

its

trove of unreported funds.

The IRS concluded that

the defendants willfully failed

____________________

3For

no easily

explicable reason,

deposited into the Seabrook

summary

prepared

by Mrs.

these rebates

had been

Properties account, omitted from the

Olbres

for

Dennett's

use, and

mentioned in the defendants' ensuing dialogue with Dennett.

not

to

report substantial amounts of income on their 1986, 1987, and

1988 federal tax returns ($150,954 in 1986, $748,991 in 1987, and

$175,432 in

but denied

intent

1988).

The defendants

conceded the underreporting,

criminal responsibility, saying that

to defraud.4

they lacked any

A federal grand jury returned a three-count

indictment charging the

defendants with willfully

attempting to

evade income tax for those three years.

jury.

The case was tried

to a

The defendants moved for judgments of acquittal at the end

of the government's case,

and again when both sides

See Fed. R. Crim. P. 29(a).

___

The district court

had rested.

denied the first

set of motions and reserved decision on the second set.

R. Crim. P. 29(b).

decision:

See Fed.
___

On January 24, 1994, the jury reached a split

it found the defendants not

guilty on count 1 (1986)

and count 3 (1988), but guilty on count 2 (1987).

After

a gestation

district court, acting

reservation,

acquittal

appeal.

granted

on count

period of

in pursuance

of the

the defendants'

2.

nearly nine

The government

months, the

earlier Rule

motions for

then filed

29(b)

judgments of

this timely

II.
II.

ANALYSIS
ANALYSIS

Our

segments.

examine

analysis of

First,

the

sufficiency

this case

we limn the

elements

of

standard of

the

of the evidence.

is partitioned

offense

Third, we

review.

into three

Second,

of conviction

and

we

the

explain why we find the

____________________

4The defendants placed much of the onus on their accountant,

Dennett,

who died prior

to the trial.

knowledge of the facts died with him.

For the

most part, his

district court's analysis unpersuasive.

A.
A.

Standard of Review.
Standard of Review.
__________________

Expressing the standard for

of

evidentiary

insufficiency

straightforward exercise.

the light most flattering

If

in

judicial review of a claim

criminal

case

the evidence presented,

is

taken in

to the prosecution, together with

all

reasonable inferences favorable to it, permits a rational jury to

find each

essential

element

reasonable doubt, then

Jackson v. Virginia, 443

_______
________

Gifford,
_______

17

F.3d 462,

of

the

crime

the evidence is legally

charged

beyond

sufficient.

See
___

U.S. 307, 319 (1979); United States v.

______________

467 (1st

Cir.

1994); United States v.

______________

Castro-Lara, 970 F.2d 976, 979 (1st Cir. 1992), cert. denied, 113
___________
_____ ______

S. Ct. 2935 (1993).

In evaluating sufficiency, both

circumstantial evidence

States
______

the

are accorded weight.

direct and

See, e.g., United

___ ____ ______

v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).

_______

evidence,

taken

as

whole,

warrants

So long as

judgment

of

conviction, "it need not rule out other hypotheses more congenial

to a finding of innocence."

Gifford, 17 F.3d at 467.

_______

When, as now, a criminal defendant mounts a sufficiency

challenge, all the evidence, direct

viewed from the government's

judge

must resolve

all

questions

in the

competing

inferences, two

and circumstantial, is to be

coign of vantage.

evidentiary

conflicts and

prosecution's favor;

or more

Thus,

the trial

credibility

and, moreover,

of which are

as among

plausible, the

judge must choose the inference that

theory of guilt.

See
___

best fits the prosecution's

United States v. Taylor, 54 F.3d

_____________
______

967, 974

(1st Cir. 1995);

United States
_____________

v. Rothrock, 806
________

F.2d 318,

320

(1st Cir. 1986).

The

granting of a motion for

judgment of acquittal is

subject to de novo review.

__ ____

See United States v. Kirvan, 997 F.2d

___ _____________
______

963, 967 (1st

Like the trial

the

Cir. 1993).

evidence in

the

light most

court, "we scrutinize

compatible

with the

verdict,

resolve all credibility disputes in the verdict's favor, and then

reach a judgment about

whether a rational jury could

beyond a reasonable doubt."

B.
B.

In

this

in

Taylor, 54 F.3d at 974.

______

Sufficiency of the Evidence.

Sufficiency of the Evidence.
___________________________

instance,

Because the defendants do

tax return

our

assignment

underreporting

the question

occurred

is

simplified.

not dispute that they signed

and that they substantially

the process,

find guilt

understated their income

of guilt

willfully,

constituted "a voluntary, intentional

the 1987

reduces to

that

is,

whether the

whether

it

violation of a known legal

duty," United States

_____________

curiam) (citations

issue.

v. Pomponio,
________

omitted).

The

429 U.S. 10,

12 (1976)

trial focused on

this narrow

The government contended that the defendants deliberately

understated their 1987 income, while the defendants

to have signed

they

(per

the return

were guilty only of

without reading it

who claimed

contended

that

inadvertence, aggravated by the hiring

of a maladroit accountant.

In a

that

tax evasion case

blind reliance

on their

caused an underreporting,

in which the

defendants assert

accountant, not

criminal intent,

the critical datum is not

whether the

defendants

ordered the

rather, whether the

accountant to

defendants knew when they

that it understated their income.

So here:

falsify the

if the evidence

return, but,

signed the return

See Rothrock, 806 F.2d at 321.

___ ________

introduced at trial, taken in a pro________________

government light, permitted the jury to infer that the defendants

________________

(a) were aware of the contents of their return, and (b) knew that

their

reportable

reflected therein,

income

then the

significantly

exceeded

jury lawfully could

the

income

find that

the

defendants

7201.

acted willfully,

See,
___

and,

hence, violated

e.g., United States v.

____ ______________

(11th Cir. 1982).

We turn

to this

26 U.S.C.

Gaines, 690 F.2d

______

849, 855

two-part inquiry, and

then

buttress the results with additional evidence of willfulness.

1.
1.

the inquiry

infer

Knowledge of the Return's Contents.

Knowledge of the Return's Contents.
__________________________________

need not occupy us for long.

This facet of

A jury may permissibly

that a taxpayer read his return and knew its contents from

the bare fact that he signed it.

F.2d 22,

signature

26

on

(1st

his

Cir.

return

1982)

See United States v. Drape, 668

___ _____________
_____

(holding

sufficed to

that

the

establish

defendant's

knowledge

incorrect contents); United States v. Romanow, 505 F.2d 813,

_____________
_______

(1st Cir.

1974) (dismissing taxpayer's

denial that he

of

814

had read

tax

form,

disbelieve

of

and stating

that

"it

him and conclude from

his uncontested

signature

is clear

that

a jury

could

nothing more than the presence

that he

had

in fact

jury

had

before

read"

the

document).

Here,

moreover,

circumstantial evidence

the

indicating that the

it

other

defendants knew the

contents of their return.

Dennett's wife, who worked

testified that when Dennett prepared

the

return was bundled

into a

a tax return for signature,

packet with

a cover

summarized its contents.

The bottom portion of the

contained

the

the

bill

for

defendants testified that it

office, sign

could

tax

infer

was their habit to go

accountant's bill, the

that,

in

sheet that

cover sheet

preparation services.

the completed return, and

reasonably

with him,

to Dennett's

pay the bill.

order

to

have

defendants must have read

The

The jury

paid

the

the portion of

the cover sheet that detailed the return's contents.

2.
2.

compelling

reported on

Knowledge of
the Understatement.
Knowledge of
the Understatement.
___________________________________

proof

that

their 1987

the

defendants

return

knew

that

The

the

substantially understated

most

figure

their

true

income is the product of simple arithmetic.

a government

witness, analyzed

found that the disposable

based

on

$24,695.

the

expenditures

the defendants' 1987

return and

funds available to them in

that year,

information

Mitchell

contained in

further testified

of more

than $620,656

same period, their overall savings

subtracting net

demonstrated

deposits of

that

the

Tama Mitchell,

the

return,

that the

during the

totalled

defendants made

year.5

In the

increased by $334,003.

loan proceeds, Mitchell's

defendants'

combined

After

analysis

expenditures

and

____________________

5Mitchell's computations did not include all the defendants'

annual expenditures,
on

major

but established a baseline by concentrating

cash purchases

during the

year,

$158,000 in June to purchase a Rolls Royce

an outlay

e.g., an
____

outlay of

Corniche convertible;

of $32,450 in August to purchase a Range Rover; and an

infusion of roughly $140,000 to a brokerage account.

accretions to

savings in

1987

exceeded the

cash available

to

them, according to their tax return, by $580,989.

To be sure, the

evidence pertaining to the defendants'

lavish spending is circumstantial

irrefutable.

infrastructure

Yet,

the

and suggestive, not direct and

arithmetic

furnishes

sturdy

capable of supporting a reasonable inference that

the

defendants

must

have been

substantially underreported

at 706-07 (holding

circumstantial

aware

that

their income.

that, despite an absence

their 1987

See
___

O'Brien, 14 F.3d
_______

of direct evidence,

evidence adequately supported jury's inference of

guilty knowledge

in fraud

(explaining that

"circumstantial evidence, in and

often

enough to ground a

957 F.2d 1, 4 (1st

"the

case); Castro-Lara,
___________

at 981

of itself, is

Cir.) (stating that, in proving tax

motivation" so long as

(1992).

970 F.2d

conviction"); United States v. Hurley,

_____________
______

government [does] not need

basis for

return

to show direct

the jury has a

inferring willfulness),

evasion,

evidence of tax

sufficient circumstantial

cert. denied, 113

_____ ______

S. Ct.

60

Even if one were to accept the defendants' self-serving

hypothesis that the accountant's incompetence sparked the

myriad

misstatements

reasonably

embedded

in

infer that,

they must have

the

return, the

when the

gained an

jury

could

defendants signed

awareness that the

the return,

numbers could

possibly be accurate.

See Gaines, 690 F.2d at 855 (holding

___ ______

glaring

in

inference

may

inaccuracies

figures

can

support

still

not

that

reasonable

of knowledge); see also Drape, 668 F.2d at 26 ("Intent

___ ____ _____

be established

where a

taxpayer

10

`chooses to

keep himself

uninformed

as

to

the

full

insufficient.'") (quoting Katz

____

extent

that

[the

return]

v. United States, 321

_____________

is

F.2d 7, 10

(1st Cir.), cert. denied, 375 U.S. 903 (1963)).

_____ ______

The

proposition that the

understated their

well.

For

income derives support from

example,

unrestricted access

and marketing

prepare a

sale of the

projected

during

to DC's

information to

financial statement

business.

1987

defendants knew their return

When

revenues

in

1986,

other evidence as

Anthony

Olbres

books and records)

Dennett so that

the latter

could

a prospective

completed, the financial

of

had

provided fiscal

in connection with

the amount

(who

statement

$1,976,000.

The

projection proved

to

be

prophetic

receipts totalled $2,014,059

receipts

on

the

($1,265,069).

jury

1987

knowledge

of

DC's

actual

1987

gross

but the defendants reported gross

tax

return

Based on this

could plausibly

DC's

in

far

smaller

progression of events,

infer that

financial

Anthony Olbres

matters

to

amount

a rational

had sufficient

recognize

the

huge

discrepancy between projected revenues and reported revenues, and

to appreciate the significance

of the gap.6

Likewise,

the jury

Anthony

Olbres'

____________________

6The

district

participation in
to be

court

suggested

the preparation of the

exculpatory rather

that

1987 projections tended

than incriminatory, because

it showed

that the defendants reposed great confidence in their accountant.

See
___

D.

Ct. Op.

at

permissible, it is not
29, it is the

31.

Though

such

an

inference

compelled; and, given the method

may

of Rule

jury's choice between alternative inferences,

the trial judge's

choice, that

must control.

be

See O'Brien,
___ _______

not

14

F.3d

at

707 (warning

province"
States
______

of choosing

that judges
between

must

not "usurp

the jury's

alternative inferences);

United
______

v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985)

_________________

(similar), cert. denied, 475 U.S. 1029 (1986).

_____ ______

11

could infer from Shirley Olbres' position as DC's bookkeeper that

she,

too, must

income.

have

recognized the

massive understatement

of

3.
3.

jury

Other Evidence of Willfulness.

Other Evidence of Willfulness.
______________________________

heard other

evidence capable

inference that the

their income.

to time

In this

of supporting

defendants acted willfully

case, the

a permissible

in underreporting

For one thing, the defendants themselves from time

bypassed their

business checking account

and deposited

substantial amounts of money (including approximately $145,000 in

payments

from

directly into

single

customer,

their business

Digital

savings account.

Equipment

They

Corp.)

knew that

these payments constituted income, yet they neither recorded them

in the cash receipts

return.

most

To

journal nor reported them on their 1987 tax

make matters

easily could

invoice log and the

worse, the two

have identified

source materials

the unreported income

passbook for the business savings

that

the

account

were

withheld

coincidentally,

disappeared

from

the

the

during

maintained other

defendants'

same

the

source

IRS

materials

audit.7

books and records

accountant;

While

and,

conveniently

the

from which the

defendants

existence of

these funds could perhaps be gleaned, see D. Ct. Op. at 31, it is

___

readily

evident that

facts that

a jury

the defendants

plausibly could

infer

clumsily attempted to

from these

conceal income

____________________

7Joyce

Wildes, a

defendants'
either

taxes,

testified that

the log or the

existence

of

Dennett employee
she

assigned to
was

passbook, and Agent

the business

savings

information directly from IHB.

12

account

review the

not provided

with

Kaply discovered the

only by

obtaining

from both their tax preparer and their government.

Of course, the defendants'

evidence indicates

slipshod

in

their

nothing more

business

counter-argument

than that they

practices

is

that the

were remarkably

also

plausible.

Withal, the option to choose between these inferences belonged to

the jury,

not the judge, see United States v. Guerrero-Guerrero,

___ _____________
_________________

776 F.2d

1071, 1075 (1st Cir. 1985), cert. denied, 475 U.S. 1029
_____ ______

(1986),

and

the

jury

had

perfect

defendants' counter-argument and draw

right

to

reject

the

the inference urged by the

government.

See
___

O'Brien,
_______

14 F.3d

Quejada-Zurique, 708 F.2d 857, 859

_______________

U.S. 855 (1983).

at

707; United States

______________

v.

(1st Cir.), cert. denied, 464

_____ ______

After all, "if the evidence can be construed in

various reasonable

alternatives, the jury is

choose from among them."

entitled to freely

United States v. Smith, 680 F.2d

_____________
_____

255,

259 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983).
_____ ______

The evidence

property

anent the defendants' income

also bolstered

the inference

1987, the defendants owned various

tenants.

of

of willfulness.

$48,000 per

annum.

Company (J/M) rented

in Seabrook, New Hampshire, at

J/M

During

properties and rented them to

In 1987, Johnson Matthey Catalog

space from the defendants

from rental

sent a

$4,000 rent

a rate

check to

the

defendants' home every month.

check,

when

Although J/M

received,

income

from

into the

paid the full

informed Dennett that

all their

Shirley Olbres deposited each rent

Seabrook

Properties

$48,000 during 1987,

they had garnered

real estate.

account.

the defendants

only $30,000 in

Thus, their

rental

1987 return

13

failed to include $18,000 from the avails of the J/M tenancy, and

also failed to

include $3,890

property known as "the barn."

the

defendants'

$30,000

action in

in the summary

with their failure

in rental income

It is beyond serious question that

pegging

they gave

to list

referable to

the J/M

lease

to their

proceeds at

accountant, coupled

any rental income

___

referable to

the

barn, could ground the requisite inference of criminal intent.

We think,

sums

received

as

too, that the defendants'

rebates

from

Mayflower

failure to report

Transit

Company

(Mayflower) gives rise to a founded inference of willfulness.

retained

Mayflower to

shows.

The

ferry exhibit

contract

Mayflower

would

furnish

customary

tariff

rates,

actually

paid.

between

the

booths to

and from

trade

parties

stipulated

that

transportation

but

then

DC

remit

services

to

20% of

the

DC

at

amounts

The rebate would be calculated monthly, based on

payments from DC

Mayflower

to

did

to Mayflower.

Pursuant

to this

arrangement,

remitted $96,671 in 1987, but, for some reason, failed

issue a 1099 form memorializing the payments.

not report any of this money

(despite the fact that

The defendants

as income on their 1987 return

they deducted 100% of the

tariff charges

that they paid in the first instance).

Shirley

Olbres deposited

checks that DC received

Seabrook

direct

Properties

connection

testified

that she

of

the eleven

from Mayflower during the year

account even

with

each

DC or

did not

its

know

14

though

that

business.

that the

rebate

into the

account had

no

At trial,

she

rebates constituted

income.

Her husband, however, admitted that he was aware of

rebates' taxable character.

rational jury

could infer that

resulted not from

decision

We believe that, on this

the concealment

of the

the

record, a

rebates

ignorance or inadvertence but from a conscious

on the defendants'

part to take

criminal advantage of

Mayflower's failure to issue the required 1099 form.

4.
4.

favorably to the

Recapitulation.
Recapitulation.
______________

To

sum

up,

the record,

read

verdict, supports the following findings:

(1)

the

defendants signed

the 1987

tax return;

(2) they

contents of the return at the time they signed it,

that it significantly understated

knew their

return

year

business had made

reflected; (4) they had

knew the

and they knew

their taxable income; (3) they

substantially more money

than the

received revenues during the tax

which they knew were taxable, such as business receipts and

transportation rebates, yet they neither deposited those revenues

in the business

the

checking account nor

usual manner, but,

bank accounts;

recorded their receipt

instead, diverted the

in

revenues to other

(5) they deliberately understated

the amounts of

rental income received when transmitting data to their accountant

preliminary to the accountant's

preparation of their tax return;

and (6) they withheld materials from the accountant

(and, later,

from

and

the IRS auditor) that

extent

of

the

would have pointed

undeclared

defendants' denials and

income.

regardless of

to the existence

Notwithstanding

the exculpatory

the

evidence

that lurked in the record, these findings enabled a rational jury

to

conclude, beyond a reasonable doubt, that the defendants were

15

guilty of income tax evasion for the year 1987.

C.
C.

The Judgment of Acquittal.

The Judgment of Acquittal.
_________________________

The district

the

integrity

court, steadfast in its

of the

reasonable

doubt

painstakingly

thorough examination

conceded that

the government's

Ct.

Op.

at

35,

that

of

standard, undertook

the record.

case was not

jury

"could

desire to ensure

The

court

"unpersuasive," D.

rationally
__________

reach"

the

conclusion that the defendants willfully attempted to defraud the

government in respect to their 1987 taxes, id., and that,

___

court

were to determine the existence of willfulness by means of

a preponderance test, it

at 37.

the

if the

Nevertheless,

verdict

on

would find for the government,

see id.
___ ___

the court entered judgment notwithstanding

the ground

that

the

proof did

not

permit a

finding, beyond a reasonable doubt, that the defendants willfully

filed a

false tax return.

defendants

had

To the court's way

articulated

"hypothesis

(negligence, incompetence, inattention,

on

the family's

[that was]

long-time certified

sufficiently reasonable and

sufficiently credible that

necessarily entertain

. . . ."

of

innocence

and reasonable

reliance

public accountant)

. .

sufficiently strong

a rational trier

of fact . .

and

. must

a reasonable doubt about defendants' guilt

Id. at 37-38.
___

Our independent review of

the court,

of thinking, the

the record convinces us that

while giving lip service to the "viewpoint" principle

(which holds that the evidence must be viewed, for the purpose of

an

acquittal

motion,

in

the

light

most

flattering

to

the

16

government), subverted

evidence and

gave

any

the principle by isolating

determining whether that evidence,

each piece of

standing alone,

rise to a powerful enough inference of willfulness to allay

reasonable

doubt about

bargain, the

court appears

between

viewpoint

standard.

the

the

defendants'

guilt.

to have misunderstood

principle

and

the

In

the

the interplay

reasonable

doubt

The

lower

court's

handling

of

the

rent-receipts

evidence illustrates our concerns.

In discussing this evidence,

the

inference

court

defendants

acknowledged

could rationally

inference was

[the

doubt."

circumstantial

balkanization.

must

not "of

defendants']

reasonable

that

be drawn,

adverse

but concluded

sufficient persuasive value

knowing

D.

evidence

For

an

intent

Ct.

cases

to

Op. at

can

purposes of Rule

be employed to gauge

evade

33.

survive

the

that this

to establish

taxes,

But

to

beyond

few,

this

29, a broader

the prosecution's mettle.

if any,

sort

of

perspective

Under the

viewpoint principle, a jury charged with determining an accused's

guilt

or innocence

seamless whole.

is entitled

to consider

the evidence

as a

Jurors are "not required to examine the evidence

in isolation, for `individual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it.

of an

evidentiary

constituent parts.'"

(1st Cir. 1992)

presentation may

well

be greater

United States v. Ortiz, 966 F.2d

______________
_____

(quoting Bourjaily
_________

The sum

than

707, 711

v. United States, 483

______________

171, 179-80 (1987)), cert. denied, 113 S. Ct. 1005 (1993).

_____ ______

17

its

U.S.

Here,

though no one piece of evidence laid bare the defendants' intent,

the aggregate evidence, taken

most hospitably to the prosecution

(as the viewpoint principle demands), was equal to the task.

The

lower

court's

treatment

of

transportation rebates illustrates another

the evidence

(related) shortcoming

in the court's inchmeal approach to evidentiary sufficiency:

court

not only

weighed

piece,

took each

the several

and

chose

piece of

possible

between

evidence in

inferences

them.

anent

isolation, but

associated with

Thus,

the

while

the

each

judge

acknowledged that the jury could rationally infer criminal intent

in connection with Shirley Olbres' handling of the transportation

rebates,8

he posited

person," might

that

well have

Mrs. Olbres,

as an

"unschooled lay

misconstrued the rebates

as something

other

than income.

between two

basis

D.

Ct. Op.

at 34.

By umpiring

the duel

competing inferences and declaring the winner on the

of which inference appeared

more robust in

his eyes, the

judge invaded the jury's province.

On a motion for judgment of acquittal

a motion for

to

choose

Supreme

a new trial9

between

Court

historical

is for the jury, not

conflicting

stated

facts

it

that a

that

unlike, say, on

inferences.

court

supports

In

"faced

Jackson,
_______

with

conflicting

the court,

a record

inferences

the

of

must

____________________

8The district court conceded that the evidence could sustain

an inference
taxable

that Shirley

income,

but

Olbres knew

attempted

advantage of Mayflower's
IRS on the required form.

the

to hide

failure to report

rebate checks

them,

thereby

were

taking

the payments to

See D. Ct. Op. at 34.

___

the

9The defendants did not move for a new trial in this case.

18

presume

that

even if it does not affirmatively appear in the

the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution."

326.

record

Under this

directive, the judge's failure to

permissible inference of willfulness

443 U.S. at

defer to the

arising out of, inter alia,

_____ ____

the defendants'

failure to report the

rebate checks constitutes

error.

There is

methodology

that

insufficient to

bears

correction.

convict, the

statement to the

sufficiently

still another aspect of

effect "that

reasonable

reasonable trier of fact

doubt."

(en

finding

cited, and

if a hypothesis

sufficiently

the

proof

relied upon,

of innocence

strong,

then

is

must necessarily entertain a reasonable

____

United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982)
_____________
____

banc)

(Anderson,

J., concurring)

quotation marks omitted),

(1983).

and

court

In

the district court's

Even

formulation,

(internal

citation

and

aff'd on other grounds, 462 U.S.

_______________________

356

apart from a citation error,10

without more, comprises

this stripped-down

a misleading

statement of

the

law.

quoted

Its principal

text fails

principle:

vice is

to reflect

that it

a core

is incomplete.

element of

The

the viewpoint

the necessity of drawing inferences hospitable to the

government's theory of

the case before

______

any proffered hypothesis of innocence.

In

analyzing a

motion

judging the strength

of

We explain briefly.

for judgment

of acquittal,

____________________

10The district court incorrectly attributed this language to

the Bell majority.
____

See D. Ct. Op. at 20.

___

19

court is obliged

the case

to take, and then to

but, as

scrutinize, a snapshot of

we have made clear on other

snapshot only can be taken after focusing the

an angle

favorable

to

neglected this focus.

would do if

the prosecution.

occasions,11 the

lens of inquiry at

The

district

It took the snapshot head-on

presiding over

a bench trial).

court

(as a judge

Consequently,

the

court acknowledged that inferences of willfulness could plausibly

be drawn from

much of

the evidence, but,

instead of

crediting

those inferences and then confronting the question of evidentiary

sufficiency, the court

on

an

equal footing

simply placed the inculpatory

with

various

inferences

exculpatory inferences

and

proceeded

neither

to weigh this

deferred to

inferences, see
___

potency of

mixed bag.

the jury's

Jackson,
_______

In other words,

presumed choice

443 U.S.

at

the defendants' hypothesis

those presumed choices.

________________________

This

the court

of alternative

326, nor

evaluated

the

of innocence in light of
____________

improper

focus

emptied

the

____________________

11See,
___

e.g., United States v.

____ ______________

Flores-Rivera, __
_____________

(1st Cir. 1995) [No. 93-1558]:

[I]f the

evidence viewed in

favorable
nearly

to

equal

the

verdict

the light
gives

circumstantial

most

equal

support

or

to

theory of guilt and

a theory of innocence of

the

this court

crime charged,

the conviction.
where

an equal

guilt and
by

This
or

the evidence

favorable

to

is so because

nearly

a theory of
viewed

must reverse
. .

equal theory

.
of

evidence is supported
in

the light

the prosecution,

most

a reasonable

F.3d ___

jury must necessarily entertain

a reasonable

doubt.

Id. at ___ [slip op. at 5] (quoting United States v. Sanchez, 961

___
_____________
_______

F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330 (1992)).
_____ ______

20

viewpoint principle

to

usurp

the jury's

of its essential meaning

function)

and

(causing the court

produced a

snapshot

that

distorted, rather than accurately depicted, the Rule 29 record.

III.
III.

CONCLUSION
CONCLUSION

We need go no further.

It is trite, but true,

that a

court "ought not disturb, on the ground of insufficient evidence,

a jury

verdict that is supported by a plausible rendition of the

record."

Ortiz, 966 F.2d at 711.

_____

in which

the government's proof

preponderance and

While

there may well be cases

founders in the

"realm between

`beyond reasonable doubt,'" D. Ct.

Op. at 22,

see also Hon. Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U.

___ ____
_________________________

L.

Rev.

979,

toothlessness

standard

986-88

of appellate

in review

(1993)

application of the

of evidentiary

case is not of that genre.

(criticizing

the

perceived

reasonable doubt

insufficiency

claims), this

To the contrary, this case evokes our

frequently reiterated rule that:

[I]n a criminal case, "the

preclude

every

reasonable

inconsistent with guilt"

a

conviction.

It is

rational jury could

proof

and

evidence need not

in order to sustain
enough that

. .

. a

look objectively at

the

supportably

reasonable doubt that

hypothesis

conclude

the defendant's

beyond
guilt

had been established.

United States v. Ingraham,

_____________
________

832 F.2d 229, 239-40 (1st

(internal citation omitted), cert.

_____

Because

our perscrutation

mulling the issue

the

denied, 486 U.S. 1009 (1988).

______

of the record

of intent, the district

convinces us

that, in

court both misapplied

appropriate legal standard and undervalued

the force of the

government's overall proof, the judgment below must be

21

Cir. 1987)

Reversed.
Reversed.
________

22