In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3032

United States of America,

Plaintiff-Appellee,

v.

Ronald Magsino Ytem,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 721--James F. Holderman, Judge.

Argued January 19, 2001--Decided June 25, 2001


  Before Flaum, Chief Judge, and Posner and
Ripple, Circuit Judges.

  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); United States v.
Kontny, 238 F.3d 815, 820 (7th Cir.
2001); United States v. Peters, 153 F.3d
445, 461 (7th Cir. 1998); United States
v. Pirro, 212 F.3d 86, 89 (2d Cir. 2000),
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.
E.g., Spies v. United States, 317 U.S.
492, 499-500 (1943); United States v.
Paneras, 222 F.3d 406, 410 (7th Cir.
2000); United States v. Robinson, 177
F.3d 643, 648 (7th Cir. 1999); United
States v. Townsend, 924 F.2d 1385, 1390
(7th Cir. 1991); United States v. Radtke,
799 F.2d 298, 302 (7th Cir. 1986); United
States v. Guidry, 199 F.3d 1150, 1156-58
(10th Cir. 1999). We are, however,
doubtful about the validity of the
government’s argument, based on the case
just cited, id. at 1157, 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. As in
Guidry, 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. See,
e.g., Victor v. Nebraska, 511 U.S. 1, 13-
17 (1994) ("absolute certainty is
unattainable in matters relating to human
affairs," id. at 13); United States v.
Williams, 216 F.3d 1099, 1103-04 (D.C.
Cir. 2000); United States v. Guidry,
supra, 199 F.3d at 1157-58; United States
v. Delpit, 94 F.3d 1134, 1148 (8th Cir.
1996); United States v. Hall, 854 F.2d
1036, 1044 (7th Cir. 1988) (concurring
opinion); see also Holland v. United
States, 348 U.S. 121, 139-40 (1954). 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.
