
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,  Attorney, Tax Division, United  States Dep't               _____________          of  Justice, with  whom  Loretta C.  Argrett, Assistant  Attorney                                   ___________________          General,  Robert E.  Lindsay and  Alan Hechtkopf,  Attorneys, Tax                    __________________      ______________          Division, and  Paul M. Gagnon,  United States  Attorney, were  on                         ______________          brief, for the United States.               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  and  Shirley Olbres,  parked outside  a          restaurant  in Exeter, New Hampshire.  The presence of so opulent          a vehicle in so  bucolic a setting piqued the  taxman's interest.          He initiated  an investigation  that led,  in  succession, to  an          audit,  an indictment, a trial,  and a conviction  for income tax          evasion pursuant to  a jury  verdict.1  The  district court  then          trumped the jury's verdict,  granting the defendants' motions for          judgments of acquittal.  See United States v. Olbres, Cr. No. 93-                                   ___ ______ ______    ______          27-1-2-M (D.N.H. Sept. 30,  1994) (D. Ct. Op.).2   The government          appeals.  We reinstate the convictions.          I.  BACKGROUND          I.  BACKGROUND                    We    start    by    relating   certain    (essentially          uncontradicted) facts that serve  to put the appeal into  initial          perspective.   In 1974, the Olbreses   he an industrial designer,          she a schoolteacher destined to become a self-taught bookkeeper            launched a proprietorship, Design Consultants (DC),  to conceive,          construct, and erect exhibit  booths for trade shows.   At first,                                        ____________________               1The statute of conviction provides in relevant part:                    Any  person  who  willfully  attempts  in any                    manner to evade or  defeat any tax imposed by                    [the  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  the   district  court's  thoughtful   opinion  is          unpublished, the  interested  reader can  locate  it at  1994  WL          543520.                                          2          the proprietors comprised  the entire work  force.  The  business          grew  steadily,  and  by 1987  DC  employed  23  persons and  had          revenues in excess of $1,900,000.  Despite the  phenomenal growth          of the business,  Shirley Olbres continued  to handle the  books,          toiling  part-time,  mostly  at  home.    Her  working  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.  He prepared the tax returns in reliance  on          information  supplied by  the defendants.   For  the tax  year at          issue on this appeal   1987   Shirley Olbres drafted a summary of          the defendants' books and records for Dennett's use.  She and her          husband  then met with Dennett to answer questions.  When Dennett          completed the  return,  the defendants  came  to his  office  and          signed it.                    The  defendants maintained various bank accounts during          1987.  These  included business checking and  savings accounts at          Indian  Head Bank  (IHB).   Defendants  deposited  most of  their          business  receipts  into  the   business  checking  account,  but          occasionally  deposited  business  receipts  into   the  business          savings  account.   While    Shirley  Olbres  recorded  all  sums          deposited into the business checking account in the cash receipts          journal,  she did  not make  comparable entries  showing deposits                                          3          made  to  the business  savings account.    During the  same time          frame,  the defendants  also  maintained payroll  and petty  cash          accounts at a  second bank,  and a rent-receipts  account in  the          name of Seabrook Properties at yet a third financial institution.                    The IRS started its investigation into the  defendants'          tax  returns in  1989.   Revenue Agent  Leonard Kaply  pulled the          laboring oar.  He determined, inter alia, that the defendants had                                        _____ ____          substantially underreported  their income on their  joint federal          income tax returns  for the years  1986 through 1988.   For 1987,          Kaply's audit indicated that the defendants had failed to  report          nearly  $750,000 in  income  from three  sources:   (1)  business          receipts deposited directly into the business savings account and          not recorded in  the cash  receipts journal; (2)  rebates from  a          transportation company that had contracted with DC  to move trade          show booths from  place to  place;3 and (3)  certain income  from          rental property.  In the course of the audit, the defendants gave          Agent  Kaply  the cash  receipts  journal,  but  claimed to  have          misplaced  the invoice  log  and the  passbook  for the  business          savings  account (either of which would have revealed much of the          unreported income).  It was only when the IRS issued a summons to          IHB that  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,  these rebates  had been          deposited into the Seabrook  Properties account, omitted from the          summary  prepared  by Mrs.  Olbres  for  Dennett's  use, and  not          mentioned in the defendants' ensuing dialogue with Dennett.                                          4          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  1988).  The defendants  conceded the underreporting,          but denied  criminal responsibility, saying that  they lacked any          intent  to defraud.4  A federal grand jury returned a three-count          indictment charging the  defendants with willfully  attempting to          evade income tax for those three years.  The case was tried  to a          jury.  The defendants moved for judgments of acquittal at the end          of the government's case,  and again when both sides  had rested.          See Fed. R. Crim. P. 29(a).  The district court  denied the first          ___          set of motions and reserved decision on the second set.  See Fed.                                                                   ___          R. Crim. P. 29(b).  On January 24, 1994, the jury reached a split          decision:   it found the defendants not  guilty on count 1 (1986)          and count 3 (1988), but guilty on count 2 (1987).                    After  a gestation  period of  nearly nine  months, the          district court, acting  in pursuance  of the  earlier Rule  29(b)          reservation,  granted  the defendants'  motions for  judgments of          acquittal  on count  2.   The government  then filed  this timely          appeal.          II.  ANALYSIS          II.  ANALYSIS                    Our  analysis of  this case  is partitioned  into three          segments.  First,  we limn the  standard of  review.  Second,  we          examine  the  elements  of  the  offense  of conviction  and  the          sufficiency  of the evidence.  Third, we  explain why we find the                                        ____________________               4The defendants placed much of the onus on their accountant,          Dennett,  who died prior  to the trial.   For the  most part, his          knowledge of the facts died with him.                                           5          district court's analysis unpersuasive.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    Expressing the standard for  judicial review of a claim          of   evidentiary  insufficiency   in   a  criminal   case  is   a          straightforward exercise.   If  the evidence presented,  taken in          the light most flattering  to the prosecution, together with  all          reasonable inferences favorable to it, permits a rational jury to          find each  essential  element  of  the  crime  charged  beyond  a          reasonable doubt, then  the evidence is legally  sufficient.  See                                                                        ___          Jackson v. Virginia, 443  U.S. 307, 319 (1979); United  States v.          _______    ________                             ______________          Gifford,  17  F.3d 462,  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  direct and          circumstantial evidence  are accorded weight.   See, e.g., United                                                          ___  ____  ______          States  v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).  So long as          ______     _______          the  evidence,  taken  as   a  whole,  warrants  a   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  and circumstantial, is to be          viewed from the government's  coign of vantage.  Thus,  the trial          judge  must resolve  all  evidentiary  conflicts and  credibility          questions  in the  prosecution's favor;  and, moreover,  as among          competing  inferences, two  or more  of which are  plausible, the          judge must choose the inference that  best fits the prosecution's          theory of guilt.  See  United States v. Taylor, 54 F.3d  967, 974                            ___  _____________    ______                                          6          (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  Cir. 1993).  Like the trial  court, "we scrutinize          the  evidence in  the  light most  compatible  with the  verdict,          resolve all credibility disputes in the verdict's favor, and then          reach a judgment about  whether a rational jury could  find guilt          beyond a reasonable doubt."  Taylor, 54 F.3d at 974.                                       ______                           B.  Sufficiency of the Evidence.                           B.  Sufficiency of the Evidence.                               ___________________________                    In   this  instance,  our   assignment  is  simplified.          Because the defendants do  not dispute that they signed  the 1987          tax return  and that they substantially  understated their income          in  the process,  the question  of guilt  reduces to  whether the          underreporting   occurred   willfully,   that  is,   whether   it          constituted "a voluntary, intentional  violation of a known legal          duty," United States  v. Pomponio,  429 U.S. 10,  12 (1976)  (per                 _____________     ________          curiam) (citations  omitted).  The  trial focused on  this narrow          issue.  The government contended that the defendants deliberately          understated their 1987 income, while the defendants   who claimed          to have signed  the return  without reading it    contended  that          they  were guilty only of  inadvertence, aggravated by the hiring          of a maladroit accountant.                    In a  tax evasion case  in which the  defendants assert          that  blind reliance  on their  accountant, not  criminal intent,          caused an underreporting,  the critical datum is not  whether the                                          7          defendants  ordered the  accountant to  falsify the  return, but,          rather, whether the  defendants knew when they  signed the return          that it understated their income.  See Rothrock, 806 F.2d at 321.                                             ___ ________          So here:   if the evidence  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  income   significantly  exceeded  the   income          reflected therein,  then the  jury lawfully could  find that  the          defendants  acted willfully,  and,  hence, violated  26 U.S.C.             7201.   See,  e.g., United  States v.  Gaines, 690 F.2d  849, 855                  ___   ____  ______________     ______          (11th Cir. 1982).   We turn  to this  two-part inquiry, and  then          buttress the results with additional evidence of willfulness.                    1.   Knowledge of the Return's Contents.  This facet of                    1.   Knowledge of the Return's Contents.                         __________________________________          the inquiry  need not occupy us for long.  A jury may permissibly          infer  that a taxpayer read his return and knew its contents from          the bare fact that he signed it.  See United States v. Drape, 668                                            ___ _____________    _____          F.2d 22,  26  (1st  Cir.  1982)  (holding  that  the  defendant's          signature  on  his  return  sufficed to  establish  knowledge  of          incorrect contents); United States v. Romanow, 505 F.2d 813,  814                               _____________    _______          (1st Cir.  1974) (dismissing taxpayer's  denial that he  had read          tax  form,  and stating  that  "it  is clear  that  a jury  could          disbelieve  him and conclude from  nothing more than the presence          of  his uncontested  signature  that he  had  in fact  read"  the          document).                    Here,  moreover,   the   jury  had   before  it   other          circumstantial evidence  indicating that the  defendants knew the                                          8          contents of their return.   Dennett's wife, who worked  with him,          testified that when Dennett prepared  a tax return for signature,          the  return was bundled  into a  packet with  a cover  sheet that          summarized its contents.   The bottom portion of the  cover sheet          contained  the  bill  for  the  tax  preparation services.    The          defendants testified that it  was their habit to go  to Dennett's          office, sign  the completed return, and  pay the bill.   The jury          could  reasonably  infer   that,  in  order  to  have   paid  the          accountant's bill, the  defendants must have read  the portion of          the cover sheet that detailed the return's contents.                    2.    Knowledge  of   the  Understatement.    The  most                    2.    Knowledge  of   the  Understatement.                          ___________________________________          compelling  proof  that  the  defendants  knew  that  the  figure          reported on  their 1987  return  substantially understated  their          true  income is the product of simple arithmetic.  Tama Mitchell,          a government  witness, analyzed  the defendants' 1987  return and          found that the disposable  funds available to them in  that year,          based  on  the  information  contained in  the  return,  totalled          $24,695.   Mitchell  further testified  that the  defendants made          expenditures  of more  than $620,656  during the  year.5   In the          same period, their overall savings  increased by $334,003.  After          subtracting net  deposits of  loan proceeds, Mitchell's  analysis          demonstrated  that  the  defendants'  combined  expenditures  and                                        ____________________               5Mitchell's computations did not include all the defendants'          annual expenditures,  but established a baseline by concentrating          on  major  cash purchases  during the  year,  e.g., an  outlay of                                                        ____          $158,000 in June to purchase a Rolls Royce  Corniche convertible;          an outlay  of $32,450 in August to purchase a Range Rover; and an          infusion of roughly $140,000 to a brokerage account.                                          9          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  and suggestive, not direct and          irrefutable.      Yet,   the   arithmetic   furnishes   a  sturdy          infrastructure  capable of supporting a reasonable inference that          the  defendants  must  have been  aware  that  their 1987  return          substantially underreported  their income.  See  O'Brien, 14 F.3d                                                      ___  _______          at 706-07 (holding  that, despite an absence  of direct evidence,          circumstantial  evidence adequately supported jury's inference of          guilty knowledge  in fraud  case); Castro-Lara,  970 F.2d  at 981                                             ___________          (explaining that  "circumstantial evidence, in and  of itself, is          often  enough to ground a  conviction"); United States v. Hurley,                                                   _____________    ______          957 F.2d 1, 4 (1st  Cir.) (stating that, in proving tax  evasion,          "the  government [does] not need  to show direct  evidence of tax          motivation" so long as  the jury has a  sufficient circumstantial          basis for  inferring willfulness),  cert. denied, 113  S. Ct.  60                                              _____ ______          (1992).   Even if one were to accept the defendants' self-serving          hypothesis that the accountant's incompetence sparked the  myriad          misstatements  embedded  in  the  return, the  jury  could  still          reasonably  infer that,  when the  defendants signed  the return,          they must have  gained an  awareness that the  numbers could  not          possibly be accurate.  See Gaines, 690 F.2d at 855 (holding  that                                 ___ ______          glaring  inaccuracies  in   figures  can  support  a   reasonable          inference  of knowledge); see also Drape, 668 F.2d at 26 ("Intent                                    ___ ____ _____          may  be established  where a  taxpayer  `chooses to  keep himself                                          10          uninformed  as  to   the  full  extent   that  [the  return]   is          insufficient.'") (quoting Katz  v. United States, 321  F.2d 7, 10                                    ____     _____________          (1st Cir.), cert. denied, 375 U.S. 903 (1963)).                      _____ ______                    The  proposition that the  defendants knew their return          understated their  income derives support from  other evidence as          well.    For  example,  during  1986,  Anthony  Olbres  (who  had          unrestricted access  to DC's  books and records)  provided fiscal          and marketing  information to  Dennett so that  the latter  could          prepare a  financial statement  in connection with  a prospective          sale of the  business.  When  completed, the financial  statement          projected  1987  revenues  in  the amount  of  $1,976,000.    The          projection proved  to  be  prophetic    DC's  actual  1987  gross          receipts totalled $2,014,059    but the defendants reported gross          receipts  on  the  1987  tax  return  in  a  far  smaller  amount          ($1,265,069).   Based on this  progression of events,  a rational          jury  could plausibly  infer that  Anthony Olbres  had sufficient          knowledge  of  DC's  financial  matters  to  recognize  the  huge          discrepancy between projected revenues and reported revenues, and          to appreciate the significance  of the gap.6  Likewise,  the jury                                        ____________________               6The   district  court   suggested   that  Anthony   Olbres'          participation in  the preparation of the  1987 projections tended          to be  exculpatory rather  than incriminatory, because  it showed          that the defendants reposed great confidence in their accountant.          See  D.  Ct. Op.  at  31.    Though  such  an  inference  may  be          ___          permissible, it is not  compelled; and, given the method  of Rule          29, it is the  jury's choice between alternative inferences,  not          the trial judge's  choice, that  must control.   See O'Brien,  14                                                           ___ _______          F.3d  at  707 (warning  that judges  must  not "usurp  the jury's          province"  of choosing  between  alternative inferences);  United                                                                     ______          States  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  have  recognized the  massive understatement  of          income.                    3.  Other Evidence  of Willfulness.  In this  case, the                    3.  Other Evidence  of Willfulness.                        ______________________________          jury  heard other  evidence capable  of supporting  a permissible          inference that the  defendants acted willfully  in underreporting          their income.  For one thing, the defendants themselves from time          to time  bypassed their  business checking account  and deposited          substantial amounts of money (including approximately $145,000 in          payments  from  a  single  customer,   Digital  Equipment  Corp.)          directly into  their business  savings account.   They  knew that          these payments constituted income, yet they neither recorded them          in the cash receipts  journal nor reported them on their 1987 tax          return.  To  make matters  worse, the two  source materials  that          most  easily could  have identified  the unreported income    the          invoice log and the  passbook for the business savings  account            were    withheld   from   the    defendants'   accountant;   and,          coincidentally,   the   same   source    materials   conveniently          disappeared  during  the  IRS   audit.7    While  the  defendants          maintained other  books and records  from which the  existence of          these funds could perhaps be gleaned, see D. Ct. Op. at 31, it is                                                ___          readily  evident that  a jury  plausibly could  infer  from these          facts that  the defendants  clumsily attempted to  conceal income                                        ____________________               7Joyce  Wildes, a  Dennett employee  assigned to  review the          defendants'  taxes,  testified that  she  was  not provided  with          either  the log or the  passbook, and Agent  Kaply discovered the          existence  of  the business  savings  account  only by  obtaining          information directly from IHB.                                          12          from both their tax preparer and their government.                    Of course, the defendants'  counter-argument   that the          evidence indicates  nothing more  than that they  were remarkably          slipshod  in  their  business  practices     is  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  a  perfect  right  to  reject  the          defendants' counter-argument and draw  the inference urged by the          government.   See  O'Brien,  14 F.3d  at  707; United  States  v.                        ___  _______                     ______________          Quejada-Zurique, 708 F.2d 857, 859  (1st Cir.), cert. denied, 464          _______________                                 _____ ______          U.S. 855 (1983).  After all, "if the evidence can be construed in          various reasonable  alternatives, the jury is  entitled to freely          choose from among them."   United States v. Smith, 680 F.2d  255,                                     _____________    _____          259 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983).                               _____ ______                    The evidence  anent the defendants' income  from rental          property  also bolstered  the inference  of willfulness.   During          1987, the defendants owned various  properties and rented them to          tenants.   In 1987, Johnson Matthey Catalog  Company (J/M) rented          space from the defendants  in Seabrook, New Hampshire, at  a rate          of  $48,000 per  annum.   J/M  sent a  $4,000 rent  check to  the          defendants' home every month.  Shirley Olbres deposited each rent          check,  when  received,  into the  Seabrook  Properties  account.          Although J/M  paid the full  $48,000 during 1987,  the defendants          informed Dennett that  they had garnered  only $30,000 in  rental          income  from  all their  real estate.    Thus, their  1987 return                                          13          failed to include $18,000 from the avails of the J/M tenancy, and          also failed to  include $3,890  in rental income  referable to  a          property known as "the barn."  It is beyond serious question that          the  defendants'  action in  pegging  the J/M  lease  proceeds at          $30,000  in the summary  they gave  to their  accountant, coupled          with their failure  to list  any rental income  referable to  the                                       ___          barn, could ground the requisite inference of criminal intent.                    We think,  too, that the defendants'  failure to report          sums  received   as  rebates   from  Mayflower   Transit  Company          (Mayflower) gives rise to a founded inference of willfulness.  DC          retained  Mayflower to  ferry exhibit  booths to  and from  trade          shows.    The  contract   between  the  parties  stipulated  that          Mayflower  would  furnish   transportation  services  to   DC  at          customary  tariff  rates,  but  then  remit  20% of  the  amounts          actually  paid.  The rebate would be calculated monthly, based on          payments from DC  to Mayflower.   Pursuant  to this  arrangement,          Mayflower  remitted $96,671 in 1987, but, for some reason, failed          to  issue a 1099 form memorializing the payments.  The defendants          did  not report any of this money  as income on their 1987 return          (despite the fact that  they deducted 100% of the  tariff charges          that they paid in the first instance).                    Shirley  Olbres deposited  each  of  the eleven  rebate          checks that DC received  from Mayflower during the year  into the          Seabrook  Properties  account even  though  that  account had  no          direct  connection  with  DC or  its  business.    At trial,  she          testified  that she  did not  know  that the  rebates constituted                                          14          income.  Her husband, however, admitted that he was aware of  the          rebates' taxable character.   We believe that, on this  record, a          rational jury  could infer that  the concealment  of the  rebates          resulted not from  ignorance or inadvertence but from a conscious          decision  on the defendants'  part to take  criminal advantage of          Mayflower's failure to issue the required 1099 form.                    4.    Recapitulation.   To  sum  up,  the record,  read                    4.    Recapitulation.                          ______________          favorably to the  verdict, supports the following findings:   (1)          the  defendants signed  the 1987  tax return;  (2) they  knew the          contents of the return at the time they signed it,  and they knew          that it significantly understated  their taxable income; (3) they          knew their  business had made  substantially more money  than the          return  reflected; (4) they had  received revenues during the tax          year  which they knew were taxable, such as business receipts and          transportation rebates, yet they neither deposited those revenues          in the business  checking account nor  recorded their receipt  in          the  usual manner, but,  instead, diverted the  revenues to other          bank accounts;  (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  the IRS auditor) that  would have pointed  to the existence          and  extent  of  the  undeclared  income.    Notwithstanding  the          defendants' denials and  regardless of  the exculpatory  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.  The Judgment of Acquittal.                            C.  The Judgment of Acquittal.                                _________________________                    The district  court, steadfast in its  desire to ensure          the  integrity  of the  reasonable  doubt  standard, undertook  a          painstakingly  thorough examination  of  the record.   The  court          conceded that  the government's  case was not  "unpersuasive," D.          Ct.  Op.  at  35,  that  a  jury  "could  rationally  reach"  the                                                    __________          conclusion that the defendants willfully attempted to defraud the          government in respect to their 1987 taxes, id., and that,  if the                                                     ___          court  were to determine the existence of willfulness by means of          a preponderance test, it  would find for the government,  see id.                                                                    ___ ___          at 37.  Nevertheless,  the court entered judgment notwithstanding          the  verdict  on  the ground  that  the  proof did  not  permit a          finding, beyond a reasonable doubt, that the defendants willfully          filed a  false tax return.   To the court's way  of thinking, the          defendants   had   articulated   a   "hypothesis   of   innocence          (negligence, incompetence, inattention,  and reasonable  reliance          on  the family's  long-time certified  public accountant)  . .  .          [that was]  sufficiently reasonable and  sufficiently strong  and          sufficiently credible that  a rational trier  of fact . .  . must          necessarily entertain  a reasonable doubt about defendants' guilt          . . . ."  Id. at 37-38.                    ___                    Our independent review of  the record convinces us that          the court,  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  the principle by isolating  each piece of          evidence and  determining whether that evidence,  standing alone,          gave  rise to a powerful enough inference of willfulness to allay          any  reasonable  doubt about  the  defendants'  guilt.    In  the          bargain, the  court appears  to have misunderstood  the interplay          between  the  viewpoint   principle  and  the   reasonable  doubt          standard.                    The   lower  court's  handling   of  the  rent-receipts          evidence illustrates our concerns.   In discussing this evidence,          the  court   acknowledged  that  an  inference   adverse  to  the          defendants  could rationally  be drawn,  but concluded  that this          inference was  not "of  sufficient persuasive value  to establish          [the  defendants']  knowing  intent  to  evade  taxes,  beyond  a          reasonable  doubt."    D.  Ct.  Op. at  33.    But  few,  if any,          circumstantial   evidence  cases   can  survive   this  sort   of          balkanization.  For  purposes of Rule  29, a broader  perspective          must  be employed to gauge  the prosecution's mettle.   Under the          viewpoint principle, a jury charged with determining an accused's          guilt  or innocence  is entitled  to consider  the evidence  as a          seamless whole.  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.  The sum          of an  evidentiary  presentation may  well  be greater  than  its          constituent parts.'"  United  States v. Ortiz, 966 F.2d  707, 711                                ______________    _____          (1st Cir. 1992)  (quoting Bourjaily  v. United  States, 483  U.S.                                    _________     ______________          171, 179-80 (1987)), cert. denied, 113 S. Ct. 1005 (1993).  Here,                               _____ ______                                          17          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  the evidence  anent          transportation rebates illustrates another  (related) shortcoming          in the court's inchmeal approach to evidentiary sufficiency:  the          court  not only  took each  piece of  evidence in  isolation, but          weighed  the several  possible  inferences  associated with  each          piece,  and   chose  between  them.     Thus,  while   the  judge          acknowledged that the jury could rationally infer criminal intent          in connection with Shirley Olbres' handling of the transportation          rebates,8  he posited  that  Mrs. Olbres,  as an  "unschooled lay          person," might  well have  misconstrued the rebates  as something          other  than income.   D.  Ct. Op.  at 34.   By umpiring  the duel          between two  competing inferences and declaring the winner on the          basis  of which inference appeared  more robust in  his eyes, the          judge invaded the jury's province.                    On a motion for judgment of acquittal   unlike, say, on          a motion for  a new trial9   it  is for the jury, not  the court,          to  choose  between  conflicting  inferences.   In  Jackson,  the                                                              _______          Supreme  Court  stated  that a  court  "faced  with  a record  of          historical   facts  that  supports  conflicting  inferences  must                                        ____________________               8The district court conceded that the evidence could sustain          an inference  that Shirley  Olbres knew  the  rebate checks  were          taxable  income,  but  attempted  to hide  them,  thereby  taking          advantage of Mayflower's  failure to report  the payments to  the          IRS on the required form.  See D. Ct. Op. at 34.                                     ___               9The defendants did not move for a new trial in this case.                                          18          presume   even if it does not affirmatively appear in the  record            that  the trier of fact resolved any such conflicts in favor of          the prosecution, and must defer to that resolution."  443 U.S. at          326.  Under this  directive, the judge's failure to  defer to the          permissible inference of willfulness  arising out of, inter alia,                                                                _____ ____          the defendants'  failure to report the  rebate checks constitutes          error.                    There is  still another aspect of  the district court's          methodology  that  bears  correction.     In  finding  the  proof          insufficient to  convict, the  court  cited, and  relied upon,  a          statement to the  effect "that  if a hypothesis  of innocence  is          sufficiently   reasonable  and   sufficiently   strong,  then   a          reasonable trier of fact  must necessarily entertain a reasonable                                    ____          doubt."  United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982)                   _____________    ____          (en  banc)  (Anderson,  J., concurring)  (internal  citation  and          quotation marks omitted),  aff'd on other  grounds, 462 U.S.  356                                     _______________________          (1983).  Even  apart from a citation error,10  this stripped-down          formulation,  without more, comprises  a misleading  statement of          the  law.   Its principal  vice is  that it  is incomplete.   The          quoted  text fails  to reflect  a core  element of  the viewpoint          principle:  the necessity of drawing inferences hospitable to the          government's theory of  the case before  judging the strength  of                                           ______          any proffered hypothesis of innocence.  We explain briefly.                    In  analyzing a  motion  for judgment  of acquittal,  a                                        ____________________               10The district court incorrectly attributed this language to          the Bell majority.  See D. Ct. Op. at 20.                ____            ___                                          19          court is obliged  to take, and then to  scrutinize, a snapshot of          the case   but, as  we have made clear on other  occasions,11 the          snapshot only can be taken after focusing the  lens of inquiry at          an angle  favorable  to  the prosecution.    The  district  court          neglected this focus.   It took the snapshot head-on  (as a judge          would do if  presiding over  a bench trial).   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  simply placed the inculpatory  inferences          on  an  equal footing  with  various  exculpatory inferences  and          proceeded  to weigh this  mixed bag.   In other words,  the court          neither  deferred to  the jury's  presumed choice  of alternative          inferences, see  Jackson,  443 U.S.  at  326, nor  evaluated  the                      ___  _______          potency of  the defendants' hypothesis  of innocence in  light of                                                               ____________          those  presumed  choices.     This  improper  focus  emptied  the          ________________________                                        ____________________               11See,  e.g., United  States v.  Flores-Rivera, __  F.3d ___                 ___   ____  ______________     _____________          (1st Cir. 1995) [No. 93-1558]:                    [I]f the  evidence viewed in  the light  most                    favorable  to  the  verdict  gives  equal  or                    nearly  equal  circumstantial  support  to  a                    theory of guilt and  a theory of innocence of                    the  crime charged,  this court  must reverse                    the conviction.   This  is so because  . .  .                    where  an equal  or  nearly  equal theory  of                    guilt and  a theory of  evidence is supported                    by  the evidence  viewed  in  the light  most                    favorable  to  the prosecution,  a reasonable                    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  of its essential meaning  (causing the court          to  usurp  the jury's  function)  and  produced a  snapshot  that          distorted, rather than accurately depicted, the Rule 29 record.          III.  CONCLUSION          III.  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.  While  there may well be cases                    _____          in which  the government's proof  founders in the  "realm between          preponderance and  `beyond reasonable doubt,'" D. Ct.  Op. at 22,          see also Hon. Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U.          ___ ____                     _________________________          L.   Rev.  979,   986-88   (1993)  (criticizing   the   perceived          toothlessness  of appellate  application of the  reasonable doubt          standard  in review  of evidentiary  insufficiency  claims), this          case is not of that genre.  To the contrary, this case evokes our          frequently reiterated rule that:                    [I]n a criminal case, "the  evidence need not                    preclude    every    reasonable    hypothesis                    inconsistent with guilt"  in order to sustain                    a  conviction.   It is  enough that  . .  . a                    rational jury could  look objectively at  the                    proof   and   supportably   conclude   beyond                    reasonable doubt that  the defendant's  guilt                    had been established.          United States v. Ingraham,  832 F.2d 229, 239-40 (1st  Cir. 1987)          _____________    ________          (internal citation omitted), cert.  denied, 486 U.S. 1009 (1988).                                       _____  ______          Because  our perscrutation  of the record  convinces us  that, in          mulling the issue  of intent, the district  court both misapplied          the  appropriate legal standard and undervalued  the force of the          government's overall proof, the judgment below must be                                          21          Reversed.          Reversed.          ________                                          22
