                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-1994

United States of America v. Haggigan
Precedential or Non-Precedential:

Docket 93-1596




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 93-1596



                    UNITED STATES OF AMERICA

                                  v.

                        EUGENE HANNIGAN,

                                        Appellant



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Criminal No. 92-00612-01)



                    Argued February 15, 1994

     Before:   BECKER, HUTCHINSON and COWEN, Circuit Judges

                     (Filed June 23, 1994)




Anna M. Durbin (argued)
Law Office of Peter Goldberger
9th & Chestnut Streets
Suite 400, The Ben Franklin
Philadelphia, PA 19107

          COUNSEL FOR APPELLANT
          EUGENE HANNIGAN


Lee J. Dobkin (argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106




                                  1
          COUNSEL FOR APPELLEE
          UNITED STATES OF AMERICA



                        OPINION OF THE COURT




COWEN, Circuit Judge.


          Eugene Hannigan appeals from his conviction for one

count of mail fraud, in violation of 18 U.S.C. § 1341.   Because

there was insufficient evidence produced at trial that the United

States mails were used to accomplish the alleged fraud, we will

reverse the judgment of the district court and direct that a

judgment of acquittal be entered.



                                 I.

           Hannigan was indicted on two counts of mail fraud.    The

jury found him guilty of Count One and not guilty of Count Two.

Although Hannigan has raised numerous points on appeal, we will

address only those facts and issues concerning Count One dealing

with the sufficiency of evidence as to mailing.

           Hannigan was the manager of an auto body shop, Park

Auto Body, located in Philadelphia.   Count One charged that

Hannigan and David Giordano, an appraiser employed by Travelers

Insurance Company ("Travelers"), submitted a fraudulent insurance

claim, falsely representing that a car had been damaged by

chemical emissions from a refinery, the Sun Oil Company ("Sun

Oil").   The indictment charged that Giordano and Hannigan,



                                 2
"knowingly cause[d] to be delivered by the United States Postal

Service . . . a $4,001.13 check payable to Park Auto Body on the

[false] claim, from Travelers to Park Auto Body."    App. at 9.

          The prosecution attempted to establish the mailing

through a single witness, Cindi Skowronski, a Travelers' claims

supervisor.   Since Skowronski was the only witness who testified

as to the mailing, we will describe her testimony in some detail.

Skowronski testified that she assisted in the processing of Sun

Oil claims for Travelers, and described at trial the procedures

which Travelers followed for processing these claims.    She

testified that after receiving notice of a claim, Travelers set

up an appraisal site or sent appraisers to inspect the damage

caused by emissions at the Sun Oil plant, and the appraisers

brought their estimates to Travelers' office.    After Travelers

set up a claim number and subfile for each claimant, it paid the

claims by check, often payable to body shops or car rental

companies rather than individuals.

          Skowronski testified that on a daily basis, Travelers

issued checks.   She stated: "Within our office, there's a person

in charge of running the checks so you couldn't input a check or-

-during [sic] that time.   And, then once they were run off of a

printer, they would then be stuffed into envelopes and mailed."

App. at 169 (emphasis added).    On occasion, however, individuals

would arrange to pick up a check at the Travelers office, rather

than having it mailed to them.    In such a situation, Ms.

Skowronski testified to a different procedure:



                                 3
          In order for a check to be picked up at our office . .
          . we would have to have our unit manager approve
          someone coming in to pick up the check for a check to
          be released to me. And, proof of that--of them
          approving it, would be signing the file or signing a
          piece of paper that was attached to the file. And,
          then once that was done--when you input the check on
          the computer, there was a little sign--a little
          question that said, like check attachment and you would
          put a yes, so that they know to give me that check. If
          someone came to pick it up, then I would have it
          already [sic] ready for them.

App. at 170.


          In addition to Ms. Skowronski's testimony--that

Travelers usually mailed claim checks and that special procedures

were required when someone wanted instead to pick up a check--the

government introduced computer printouts for the Sun Oil claims.

The computer printouts contained a space entitled "attachment",

in which a "Y" or "N" would be placed.   Skowronski testified that

a "Y" meant the check was authorized to be picked up and an "N"

meant that the check was to be mailed.   The computer printout for

the repair claim addressed in Count One contained an "N" in the

attachment column, and Skowronski testified that this indicated

that the claim check was to be mailed, not picked up.

          On cross examination, Hannigan's counsel engaged in the

following colloquy with Ms. Skowronski:
          Q:   Now, you didn't mail the checks in this case
          yourself, did you?
          A:   No.
          Q:   All right. And, you didn't see them put into the
          mail yourself, did you?
          A:   No.
          Q:   And, can you tell the jury where they're put to be
          mailed or who mails them?
          A:   No.
          Q:   You don't know that?
          A:   I . . .


                               4
          Q:   After they're stuffed in an envelope, you don't
          know where the envelope goes?
          A:   To our mail department.
          Q:   Your mail department. And where is your mail
          department?
          A:   At that time, it was on, like--I think we were on
          the seventh floor and that was, like, on the fifth
          floor.
          Q:   The fifth floor. So, you never saw them actually
          put in the mail or picked up in the mail, is that
          right?
          A:   No.
          Q:   And, someone could go to the mail department and
          pick one up and you would never know it even though
          there was supposed to be a procedure, is that correct?
          A:   That's correct.


App. at 179-80.   The government did not conduct redirect

examination of Ms. Skowronski.



                                 II.

          In reviewing the verdict of the jury, we view the

evidence in the light most favorable to the government.       Glasser

v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469 (1942).         If

there is substantial evidence to support the jury's

determination, we do not disturb the verdict although on that
evidence we might not have made the same decision.      Id.

          Hannigan contends that his conviction cannot stand

because the above evidence presented at trial was insufficient

for the jury to conclude that the United States mails were used

to accomplish the alleged fraud.       The essential elements of an

offense under 18 U.S.C. § 1341 are (1) the existence of a scheme

to defraud; (2) the participation by the defendant in the




                                 5
particular scheme charged with the specific intent0 to defraud;

and (3) the use of the United States mails in furtherance of the

fraudulent scheme.    E.g., United States v. Burks, 867 F.2d 795,

797 (3d Cir. 1989).    In this appeal, we address only whether

sufficient evidence was presented to prove the third element.

          It is well-established that evidence of business

practice or office custom supports a finding of the mailing

element of § 1341.0   Once evidence concerning office custom of

mailing is presented, the prosecution need not affirmatively

disprove every conceivable alternative theory as to how the

specific correspondence was delivered.    E.g., United States v.

Matzker, 473 F.2d 408, 411 (8th Cir. 1973).   While the element of

mailing may be proven through such circumstantial evidence, we

have held that to convict under § 1341, some reference to the

0
 The specific intent element may be found from a material
misstatement of fact made with reckless disregard for the truth.
United States v. Boyer, 694 F.2d 58, 59-60 (3d Cir. 1982).
0
 Every court of appeals to have considered the question has held
that the mailing element of 18 U.S.C. § 1341 can be proven
circumstantially by introducing evidence of business practice or
office custom. E.g., United States v. Kelley, 929 F.2d 582, 584
(10th Cir.), cert. denied, 112 S. Ct. 341 (1991); United States
v. Metallo, 908 F.2d 795, 798 (11th Cir. 1990), cert. denied, 112
S. Ct. 1483 (1992); United States v. Doherty, 867 F.2d 47, 65
(1st Cir.), cert. denied, 492 U.S. 918, 109 S. Ct. 3243 (1989);
United States v. Sumnicht, 823 F.2d 13, 14-15 (2d Cir. 1987);
United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986);
United States v. Scott, 730 F.2d 143, 146-47 (4th Cir.), cert.
denied, 469 U.S. 1075, 105 S. Ct. 572 (1984); United States v.
Scott, 668 F.2d 384, 388 (8th Cir. 1981); United States v.
Dondich, 506 F.2d 1009, 1010 (9th Cir. 1974); United States v.
Shavin, 287 F.2d 647, 652 (7th Cir. 1961); see United States v.
Diggs, 613 F.2d 988, 999 & n.59 (D.C. Cir. 1979), cert. denied,
446 U.S. 982, 100 S. Ct. 2961 (1980); United States v. Davidson,
760 F.2d 97, 98-99 (6th Cir. 1985); United States v. Stull, 521
F.2d 687, 689-90 (6th Cir. 1975), cert. denied, 423 U.S. 1059, 96
S. Ct. 794 (1976).


                                 6
correspondence in question is required.    Burks, 867 F.2d at 797

("Although circumstantial evidence may be used to prove the

element of mailing . . . under § 1341, reliance upon inferences

drawn from evidence of standard business practice without

specific reference to the mailing in question is insufficient.").

             In this case, ironically, the government met the

specific reference requirement of Burks, but failed to establish

that as a routine practice, the United States mails were used by

Travelers.    The evidence in the record provided a reference to

the correspondence in question: Skowronski testified that the "N"

in the attachment column of the computer printout for the repair

claim addressed in Count One meant that the claim check was to be

sent to the mail room.     This case is therefore distinguishable

from Burks, in which "no evidence was presented concerning the

[relevant] correspondence specifically," 867 F.2d at 797.0

0
We have determined that this case is distinguishable from the
holding in Burks, 867 F.2d 795. However, we note that the
holding in Burks may have been effectively overruled by
subsequent Supreme Court authority. Cf. Victor v. Nebraska, ___
U.S. ___, ___, 114 S. Ct. 1239, 1247 (1994). In Burks, we found
that there was insufficient evidence to support the mailing
element of 18 U.S.C. § 1341. We so held even though a witness
testified at trial that the business entity in question used the
United States mails "99 percent" of the time. 867 F.2d at 797.
Despite the testimony of a 99% probability that the
correspondence had been mailed, we held that without a "specific
reference to the mailing in question," id., such testimony
"establishes nothing more than a probability that the mails had
been used," id. (emphasis added), and we reversed the conviction.
The Supreme Court's holding in Victor suggests that our holding
in Burks was erroneous. In Victor, the Supreme Court held:

             [T]he beyond a reasonable doubt standard is itself
             probabilistic. In a judicial proceeding in which there
             is a dispute about the facts of some earlier event, the
             factfinder cannot acquire unassailably accurate


                                  7
         knowledge of what happened. Instead, all the
         factfinder can acquire is a belief of what probably
         happened.

___ U.S. at ___, 114 S. Ct. at 1247 (internal quotations and
citation omitted) (emphasis added). Our holding in Burks also
would appear to be in conflict with Supreme Court authority
existing at the time Burks was decided. Cf. Turner v. United
States, 396 U.S. 398, 415-17, 90 S. Ct. 642, 652 (1970) (holding
that although some heroin is produced in this country, the vast
majority of heroin is imported and hence even when judged by the
beyond a reasonable doubt standard, a jury may "infer that heroin
possessed in this country is a smuggled drug"); Holland v. United
States, 348 U.S. 121, 140, 75 S. Ct. 127, 137-38 (1954)
("Admittedly, circumstantial evidence may in some cases point to
a wholly incorrect result. Yet this is equally true of
testimonial evidence. In both instances, a jury is asked to
weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference. In
both, the jury must use its experience with people and events in
weighing the probabilities. If the jury is convinced beyond a
reasonable doubt, we can require no more." (emphasis added)). See
also, e.g., United States v. Keplinger, 776 F.2d 678, 691 (7th
Cir. 1985) ("Since the government is under no duty to negate all
possible innocent inferences from a set of circumstantial facts,
it should not be required to present proof that the custom is
'invariable.' Instead, it is sufficient to prove that mailing is
the sender's regular business practice." (citation omitted)),
cert. denied, 476 U.S. 1183, 106 S. Ct. 2919 (1986); United
States v. Miller, 676 F.2d 359, 362 (9th Cir.) (where an employee
testified that all hand-delivered documents were marked
"delivered," but admitted to some exceptions, evidence that a
letter was not marked "delivered" was sufficient proof that the
letter had been mailed), cert. denied, 459 U.S. 856, 103 S. Ct.
126 (1982). In light of the above-cited authority of the Supreme
Court and our sister courts of appeals, we believe it was
incorrect for us in Burks to suggest that the government must
prove that a business used the United States mails 100% of the
time (or greater than 99% of the time) in order to establish the
mailing element of 18 U.S.C. § 1341.
          Although courts should carefully determine the validity
of probabilistic evidence to be submitted to a jury, "overtly
probabilistic evidence is no less probative of legally material
facts than other types of evidence." Jonathan J. Koehler &
Daniel Shaviro, Veridical Verdicts: Increasing Verdict Accuracy
Through the Use of Overtly Probabilistic Evidence and Methods, 75
Cornell L. Rev. 247, 248 (1990). See, e.g., United States v.
Bonds, 12 F.3d 540, 551-68 (6th Cir. 1993) (allowing overtly
probabilistic evidence concerning DNA profiles to be submitted to


                               8
the jury); see also United States v. Chaidez, 919 F.2d 1193, 1200
(7th Cir. 1990) ("All inferential processes are probabilistic. .
. . Acknowledging the statistical nature of inferential processes
may well make them more accurate."), cert. denied, ___ U.S. ___,
111 S. Ct. 2861 (1991); Branion v. Gramly, 855 F.2d 1256, 1263-64
(7th Cir. 1988) ("Statistical methods, properly employed, have
substantial value. . . . Take fingerprints[,] . . . [p]roof based
on genetic markers . . . [and] evidence that . . . the
defendant's hair matched hair found at the scene of the crime.
None of these techniques leads to inaccurate verdicts or calls
into question the ability of the jury to make an independent
decision. Nothing about the nature of litigation in general, or
the criminal process in particular, makes anathema of additional
information, whether or not that knowledge has numbers attached.
After all, even eyewitnesses are testifying only to probabilities
(though they obscure the methods by which they generate those
probabilities)--often rather lower probabilities than statistical
work insists on." (citations omitted)), cert. denied, 490 U.S.
1008, 109 S. Ct. 1645 (1989); see generally D.H. Kaye, The
Admissibility of "Probability Evidence" in Criminal Trials--Part
I, 26 Jurimetrics J. 343 (1986); D.H. Kaye, The Admissibility of
"Probability Evidence" in Criminal Trials--Part II, 27
Jurimetrics J. 160 (1987). In a case such as Burks, where the
testimony of "99 percent" probability posed no danger of
confusing the jury with difficult probability determinations, the
testimony that the U.S. mails were used "99 percent" of the time
was properly submitted to the jury, the jury could have inferred
a mailing from such evidence, and the conviction should have been
upheld.
          The fact is that the "beyond a reasonable doubt"
standard does not require 100% probability (or greater than 99%
probability) of guilt in order to sustain a conviction. Since
unassailably accurate knowledge of any past event is impossible,
requiring absolute certainty to meet the beyond a reasonable
doubt standard would mean that no one could ever be convicted of
any crime. In his treatment of the subject, Judge Jack Weinstein
concluded that the beyond a reasonable doubt standard most likely
requires between 95-99% probability, not 100% probability. United
States v. Fatico, 458 F. Supp. 388, 406, 411 (E.D.N.Y. 1978),
aff'd, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073,
100 S. Ct. 1018 (1980). The Court of Appeals for the Seventh
Circuit has suggested that beyond a reasonable doubt standard is
met by 90% probability or better. Brown v. Bowen, 847 F.2d 342,
345-46 (7th Cir. 1988). And Judge Richard Posner has wisely
cautioned against attempting to attach any specific percentage of
probability as meeting the beyond a reasonable doubt standard.
United States v. Hall, 854 F.2d 1036, 1044-45 (7th Cir. 1988)
(Posner, J., concurring).


                               9
          Had the government presented some competent evidence

that as a routine practice the mail room sent claims checks

through the United States mail, the verdict would be sustained.

However, the direct and cross examination of Skowronski reveals

that she had no personal knowledge that the routine practice of

Travelers was to use the United States mails.   Skowronski only

testified that she knew that the envelopes stuffed with the

claims checks would go to the mail room.   Neither she nor anyone

else established what the business practice was once the

envelopes went to the mail room.

          The government contends that Ms. Skowronski's testimony

is adequate because it is not necessary to produce a witness who

personally deposited the correspondence with the United States

mails, nor is it required to have a person who was actually

employed in the mail room testify as to the business custom and

practice of using the United States mails.   The government is

correct that "[m]ailing can be proved by office custom without

producing as a witness the person who personally placed the

letter in [the United States mails]."   United States v. Joyce,

499 F.2d 9, 17 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S. Ct.
512 (1974).   The government is also right that the business

practice may be established by the testimony of anyone with

personal knowledge of the business custom and practice; it is not

necessary that someone actually employed in the mail room

establish this fact.   See, e.g., id. at 15-16; Matzker, 473 F.2d

at 411; 2 Jack B. Weinstein, Weinstein's Evidence § 406[03], at

406-19 (1993) ("Proof of custom may . . . be utilized even when

                                10
the person who engaged in the routine practices is unavailable to

testify.   In cases of mailing, the absence of a requirement that

the mailing clerk himself testify obviously accords with business

realities.").   Nevertheless, Ms. Skowronski's testimony indicates

that she had no personal knowledge concerning the routine mailing

practices of the mail room, or how mail once delivered to the

mail room was thereafter forwarded to the United States mails. In

fact, not a single witness with personal knowledge testified that

it was the routine practice of Travelers to use the United States

mails.

           Thus, the jury could only speculate what normally

happened to correspondence brought to the mail room.   For

example, it is quite possible that the mail room used a personal

messenger or private delivery service to deliver the type of

correspondence at issue here.   In United States v. Hart, 693 F.2d

286 (3d Cir. 1982), we found that testimony that correspondence

had been "sent" was insufficient to support a mail fraud

conviction, for the very reason that the word "sent" encompasses

means of delivery other than United States mails.   Id. at 289.

Ms. Skowronski's testimony that the envelope in question went to

the mail room was tantamount to her saying that the envelope had

been "sent", because there was no testimony that the mail room as

a routine practice used the United States mails for delivery, and

how that was accomplished.   Our holding in Hart is controlling,
and we therefore conclude that the evidence is insufficient to

support the verdict of conviction.



                                11
           The government argues that there is other evidence in

the record to support a finding that the United States mails were

used.   Giordano testified at trial that Hannigan informed him

that Hannigan had received the check in question.     The government

contends that Hannigan's statement that he received the check is

evidence that it was sent through the United States mails.     This

argument is without merit.    The government's argument rests on

the unstated false premise that if someone receives something, he

must have received it through the United States mails.     According

to Giordano's testimony, Hannigan never stated that he received

the check in the mail--Hannigan merely stated that he received

it.   Since there are numerous ways to receive correspondence

other than through the United States mails, Hannigan's statement

that he received the check does not support a finding of the

element of mailing to convict under 18 U.S.C. § 1341.

           In United States v. Dondich, 506 F.2d 1009 (9th Cir.

1974), a § 1341 case with a similar factual setting to the matter

presently before the court, the government argued that since most

business letters in general are sent through United States mails,

a trier of fact could infer that the United States mails were

used, even if the prosecution presented no evidence of the custom

of the particular business.    Id. at 1010.   The Court of Appeals

for the Ninth Circuit disagreed.      It held that where no evidence

of custom and usage of mailing practices was presented to the

trier of fact, a conviction under § 1341 could not stand.      Id.

           We agree with the reasoning of the Dondich court.
Because the government presented no evidence concerning the


                                 12
custom and practice of Travelers in the use of the United States

mails, there is a void in the government's proof on the element

of mailing.0   Since there was insufficient evidence presented at

trial, a retrial is precluded by the Double Jeopardy Clause of

the Fifth Amendment.    E.g., Burks v. United States, 437 U.S. 1,

10-18, 98 S. Ct. 2141, 2147-51 (1978).    Accordingly, we will

reverse the judgment of conviction and sentence, and remand this

matter to the district court with a direction that a judgment of

acquittal be entered.




United States v. Hannigan, No. 93-1596

BECKER, Circuit Judge, concurring in the judgment.

          I concur in the judgment for the reason that, having

failed to adduce any evidence of a mailing, the government did

not meet its burden of proving that a mailing occurred by any

0
Of course, evidence concerning the business custom of an office
is not required where the government presents direct evidence
that the specific article was deposited with the United States
mails.


                                 13
standard of proof.    I also agree with my brethren that United

States v. Burks, 867 F.2d 795 (3d Cir. 1989), while binding upon

us, was wrongly decided, insofar as it holds that the government

must prove that a business used the United States mails 100

percent of the time (or greater than 99 percent of the time) in

order to establish the mailing element.        However, I have a

somewhat different view from my brethren why this is so and what

we can do about it.    Because of the importance of the issue, I

feel compelled to write separately.

          Additionally, while the majority properly attempts to

discredit Burks, it appears that it has left standing its

requirement for a "specific reference" to the letter mailed.

Since I believe that Burks' specific reference requirement is

intimately tied to its holding on probabilistic evidence, a

holding the majority discredits, I also must write separately to

express my view that Burks' specific reference requirement should

not be read, as ostensibly done by the majority, as requiring

specific reference evidence in every case.



            I.   THE PROBABILISTIC EVIDENCE COMPONENT   OF   BURKS
          Although I agree that Burks' denigration of statistical

evidence made bad law, I have come to the conclusion that Burks

is not plainly inconsistent with prior or subsequent law in the

Supreme Court.   Turner v. United States, 396 U.S. 398, 415-17, 90

S. Ct. 642, 652 (1970), it is true, held that although some

heroin is produced in this country, the vast majority of heroin

is imported and hence even when judged by the beyond-a-

                                    2
reasonable-doubt standard, a jury may "infer that heroin

possessed in this country is a smuggled drug."   The Burks panel

did not mention Turner, but that does not seal Burks' fate,

insofar as there exists a reasonable basis upon which to

distinguish the two cases.   The issue the Supreme Court

confronted in Turner was the validity of a permissive statutory

presumption that heroin was imported into the country and that

the defendant knew so.   The Supreme Court has yet to address

directly the question whether the beyond-a-reasonable-doubt

standard, at least with respect to inferences drawn from

statistical evidence, is identical when no statutory presumptions

are involved.0   Moreover, the Court in Turner sifted through all

the (non-statistical) evidence presented in that case, which

tended to show that the particular defendant possessed the

requisite knowledge.   See Turner, 396 U.S. at 416-18 & n.30, 90

S. Ct. at 652-53 & n.30.

0
See Turner, 396 U.S. at 416, 90 S. Ct. at 652 (not deciding
whether for due process purposes the actual relationship between
the established fact and the presumed fact in a statutory
presumption is "judged by the more-likely-than-not standard
applied in Leary v. United States or by the more exacting
reasonable doubt standard normally applicable in criminal
cases"); cf. Leary v. United States, 395 U.S. 6, 45-46, 89 S. Ct.
1532, 1553 (1969) (stating that the test for the validity of a
permissive criminal statutory presumption is whether there is
"substantial assurance" that the presumption is factually valid
"more likely than not"); see also Sandstrom v. Montana, 442 U.S.
510, 520-25, 99 S. Ct. 2450, 2457-59 (1979) (holding that the
prosecution must bear the burden of proof as to all elements of
an offense and that conclusive presumptions are unconstitution-
al). See generally County Court of Ulster County, N.Y. v. Allen,
442 U.S. 140, 156-163 & n.16, 99 S. Ct. 2213, 2224-25 & n.16
(1979) (comparing and contrasting permissive and mandatory
presumptions); Charles R. Nesson, Reasonable Doubt and Permissive
Inferences: The Value of Complexity, 92 HARV. L. REV. 1187, 1199-
208 (1979) (critically discussing Supreme Court jurisprudence on
permissive statutory presumptions).
                                3
            In Turner, the Court apparently viewed the presumption

simply as a device placing upon the defendant the burden of

coming forward with contrary evidence, a device passing

constitutional muster if the presumption is supported by adequate

evidence.    See Turner, 396 U.S. at 405-09 & nn. 6 & 8, 90 S. Ct.

at 646-49 & nn.6 & 8.      Turner does not paint broadly with a

probabilistic brush, and is not binding authority for the

conclusion that, absent a statutory presumption buoyed by

legislative factfinding, probabilistic evidence standing alone

(in the sense of being the only evidence linking a predicate

fact, such as the possession of heroin, to a fact to be proved,

such as the importation of that heroin) may satisfy the

constitutional requirement of proof beyond a reasonable doubt.

            I also believe that Victor v. Nebraska, 114 S. Ct. 1239

(1994), is not unavoidably inconsistent with Burks, and hence

hesitate to conclude that Victor provides a vehicle for

overruling Burks.     Victor dealt with uncertainties based on

inferences and conflicting testimony, not with uncertainty
stemming from "naked statistical evidence."              See infra at Error!
Bookmark not defined. n.Error! Bookmark not defined.. The former

understanding and acceptance of the probabilistic nature of fact-

finding has a long history in American law, having been

explicitly recognized by courts for over 100 years, see, e.g.,

Peter Tillers, Intellectual History, Probability, and the Law of

Evidence, 91 MICH. L. REV. 1465, 1466 (1993) (reviewing BARBARA J.

SHAPIRO, "BEYOND REASONABLE DOUBT"   AND   "PROBABLE CAUSE" (1991)), but the

latter is a relatively new phenomenon that most courts (including

                                           4
two decisions by this Court) have to date generally rejected,

see, e.g., Burks, 867 F.2d at 797; Guenther v. Armstrong Rubber

Co., 406 F.2d 1315, 1318 (3d Cir. 1969) (ordering a directed

verdict for the defendant tire manufacturer although the

plaintiff, who was injured by an allegedly defective tire sold by

a department store, introduced evidence that the defendant

manufactured 75-80% of tires sold by that store) ("[T]here was no

justification for allowing plaintiff's case on that so-called

probability hypothesis to go to the jury.   The latter's verdict

would at best be a guess.   It could not be reasonably

supported."); People v. Collins, 68 Cal.2d 319, 66 Cal. Rptr.

497, 438 P.2d 33 (1968) (in banc) (reversing convictions based

solely on (flawed) statistical evidence that the probability of a

blond white woman with her hair in a pony tail being in a yellow

car accompanied by a black man sporting a beard, a description

which the defendants matched, is 1 in 12 million); Smith v. Rapid

Transit, Inc., 317 Mass. 469, 58 N.E.2d 754 (1945) (holding that

evidence showing that only defendant's bus was licensed to

operate on a given street and that the accident occurred near the

scheduled time for defendant's bus to be there was insufficient

proof to get to the jury on the question of whether defendant's

bus caused plaintiff to veer into a parked car); People v.
Risley, 214 N.Y. 75, 108 N.E. 200, 203 (1915) (rejecting use of

(unsubstantiated) statistical evidence demonstrating that defen-

dant's typewriter was used to forge a document and stating that




                                5
probabilistic testimony could not be used to establish a

historical fact).0

          Facts drawn from testimony or other evidence, and more

so for those drawn as inferences about facts drawn therefrom,

suffer from the impossibility of certain proof.   Epistemology has

long given up the notion that any historical event can be known

with certainty, and so to that extent all "facts" are

probabilistic.   To be sure, some facts and inferences approach

what for all practical purposes amounts to certainty (for

example, the proposition that, because I am alive, I was

conceived by a woman).   But most inferences drawn at a trial are

not as convincing as the example cited.   Inferences are

persuasive to the extent that experience and reason reveal a

strong "causal" or "correlative" relationship between events,

meaning that one of the events will be more likely given the

existence of the other than given the non-existence of the other

(this is essentially the standard of relevance provided by

Federal Rule of Evidence 401).   When the two events are perfectly

correlated throughout the course of a very large number of

observations -- that is, when one event always occurs in the

presence of the other and never occurs in its absence -- we can

be fairly confident that there is a causal or connected

relationship between the two events.   An illustration is gravity,

0
While true that the Supreme Court has blessed the use of
statistical evidence in cases under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.A. § 2000e to 2000e-17 (1981 &
Supp. 1994), the use is made in civil cases and, furthermore, is
a matter of statutory interpretation rather than a general
evidentiary rule permitting reliance solely upon statistical
evidence. See Griggs v. Duke Power Co., 401 U.S. 424, 429-33, 91
S. Ct. 849, 852-54 (1974).
                                6
which exerts a force accelerating each object toward all other

objects' center of gravity.   When such a phenomenon is observed

to occur often and regularly enough, we treat it as a law of

nature, and thereafter are justified in making inferences based

thereon that are virtually "certain" (that is, the probability of

the event of an unsupported ball in our atmosphere returning to a

supported position is about as close to 1 as can be).

           Few inferences have the force of laws of nature,

however.   Most are in reality "probabilistic."   Flight from the

police, for example, is generally assumed to reflect

consciousness of guilt, which in turn is generally assumed to

make it more probable that the defendant is guilty of the crime

charged, but since innocent people are also known and believed to

flee from the police and since people guilty of offenses other

that the one with which the defendant is charged are known and

believed to flee from the police, that event alone does not

establish guilt beyond a reasonable doubt of the particular crime

charged.   It is precisely the strength of associations between

events in society, associations that are more often the product

of culture and social norms than not, that a large, popular body

such as our jury is empaneled to assess.   Cf. IA WIGMORE   ON   EVIDENCE

§ 37.3, at 1027 (Peter Tillers ed. rev. ed. 1983) (using the term

"assertoric" act or judgment to refer to the exercise whereby a

probability is attributed to a fact).0

0
Deduction is fundamentally different from inference because in
deduction we are supplied with the major and minor premises, and
must only complete the syllogism. Assuming that the premises are
certain and that the symbols are precisely and unambiguously
defined, then the syllogism is also a certainty. A mathematical
proof is the archetype of this sort of reasoning.
                                7
          Facts derived from testimonial forensic evidence suffer

from a similar "deficiency."   There is always the possibility

that a witness misperceived the event,0 does not completely

recall the event, does not precisely communicate what was

recalled, or does not attempt to communicate what was recalled

truthfully.   Although cross-examination corrects for these

problems, it cannot eliminate them.   One can never be completely

certain that an event actually happened the way a witness

describes it.   Again, we have accepted the jury as the best

            Inferential processes, in contradistinction, generally
proceed from one proven premise to a conclusion. The one drawing
the inference supplies the missing premise, typically from a
reservoir of experience. For example, if the witness testifies
that the defendant pulled a gun's trigger, the factfinder may
quickly imagine the report of a shot and, perhaps in slow motion,
a bullet traveling through the air and striking the victim's
body. The missing premise -- the report and traveling bullet
--were supplied on the basis of a probabilistic association
between the pulling of a trigger and the firing of a gun, and
then between the firing of a gun and the effects thereof on the
real world. Of course, the correlation is not perfect, since the
gun could misfire, the chamber may be empty, the gun may contain
blanks, etc. The probability of the conclusion is essentially
the same as the probability that a gun whose trigger is pulled
under the circumstances (for example, by someone who feels malice
toward the victim standing ten feet away) would fire and
thereupon report and send a bullet flying. Obviously the exact
probabilities are open to a significant amount of "guessing." See
IA WIGMORE ON EVIDENCE § 37.4, at 1033-34 & n.8 (referring to such
"connective principles" as "generalizations" or "evidentiary
hypotheses").
            Granted that the example has a flavor of artificiality
brought about by the fact that the witness who observed the
firing most likely would have heard the report and perhaps
observed the bullet striking, too. Its point is to illustrate
how one may draw an inference from a single fact combined with
stored knowledge.
0
 Indeed, perception of an event itself involves inferential
processes, "even if only the inference that things are usually
what they seem to be." Laurence H. Tribe, Trial by Mathematics:
Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329,
1330 n.2 (1971) (citing D. HUME, A TREATISE OF HUMAN NATURE, bk. I,
pt. III, § 6, at 87 (L.A. Selby-Bigge ed. 1958)).
                                    8
institution to determine facts through a collective

decisionmaking process.   Nevertheless, facts themselves are only

probabilistic in the Victor sense.

           As mentioned briefly above, the context of the

statement the majority retrieves from Victor was the meaning of

beyond a reasonable doubt when there is conflicting evidence. See

104 S. Ct. at 1245 ("With regard to moral evidence, there is, for

the most part, real evidence on both sides.   On both sides,

contrary presumptions, contrary testimonies, contrary experiences

must be balanced." (internal quotation omitted)).     In such cases,

it is clear that one can generally not be certain who is telling

the truth, or for that matter if anyone is.   But, as I have

noted, such probabilities are beyond the scope of our present

problem.   Here we are concerned with the question whether

undisputed proof stated in probabilistic terms suffices, not what

the probabilities are that disputed evidence which is attested to

with confidence and accepted by the jury is true.     Evidence, such

as that rejected by Burks, shares both weaknesses, yet courts

generally reject the former and accept the latter weakness.

           But if the Supreme Court is willing to accept facts and

inferences as resting solely on probabilities, rather than

certainty, what difference is there between accepting "naked

statistical evidence?"0   One cannot rely to much on the case law,

0
I note at this juncture that I use the term "naked statistical
evidence" not to denote a statistic removed from context, but
evidence which objectively quantifies the associations between
events. This distinction assumes importance for many who have
studied the matter.
          As stated above, inferences and facts are impliedly
probabilistic because no fact can be proven to a certainty and no
inference can be proven to a certainty (if simply because we
                                9
for what little there is of it has not comprehensively grappled

with the subject.   But what is lacking in case law is made up for

by a surprising flurry of scholarship surrounding this issue.

See, e,g,, IA WIGMORE   ON   EVIDENCE § 37.1, at 1011 n.6 (collecting

scholarly works).




cannot run enough controlled experiments to validate that one
event will always follow, or co-exist with, another, since such a
proof by definition would require an infinite number of
experiments). Most inferences have a probability of far less
than 1, and often the precise magnitude of the probability is
uncertain as it must be "derived" from the factfinder's
experience database (here I use experience broadly in the sense
of both personally acquired and transmitted experience).
          Naked statistical evidence, as I have dubbed it, refers
to a case where the only evidence linking two events is a
statistical one. In Burks, for example, leaving aside for the
moment the reliability of the statistic, the testimony was that
"99 percent" of correspondence was received by the insurance
company via the United States mails. There was no direct
testimony that the particular correspondence was received by
mail, only the statistic and the fact that the correspondence was
found in the company's files. This I consider a case of "naked
statistical evidence."
          One could, of course, argue that a syllogistic
conclusion based upon reliable statistics may be preferable to
typical inferences (though inferior to a true syllogism) because
when, as in the Burks case, the factfinder is supplied with both
a major and a minor premise (namely, that 99% of correspondence
was received via the United States mails, and that this
particular correspondence was received), one can proceed rather
directly to a syllogistic conclusion, albeit it must be
formulated in probabilistic terms (namely, assuming that the
predicate historical and statistical facts are completely
accurate, that there is a 99% probability that the correspondence
was delivered via the United States mails). Of course, the
resulting probability would need to be discounted by the
probability that the two premise facts were both true.
          The advantage (or disadvantage, depending on who you
ask, see infra) of the statistical approach is that in proper
circumstances it provides a more precise guide to the factfinder
than would an inference based solely upon his or her experience,
and in other circumstances provides a superior guide than mere
inference based on the jury's collective knowledge where no other
evidence is available.
                                10
             Many commentators have provided incisive reasons for

distinguishing between "covertly" probabilistic fact-finding and

inference-drawing, and the use of "overtly" probabilistic

evidence.0    Others have come to the opposite conclusion, usually

tagging the difference between probabilistic and non-probabili-

stic evidence as one of form rather than substance.0    While I am
0
  See, e.g., Craig R. Callen, Adjudication and the Appearance of
Statistical Evidence, 65 TUL. L. REV. 457, 475-96 (1991) (arguing
that verdicts based on statistical evidence reduce deterrence and
that statistical evidence prevents summary judgment in too many
cases, decreases accuracy and consistency in enforcement, and
violates norms of the burden of persuasion); Charles Nesson, The
Evidence or the Event? On Judicial Proof and the Acceptability
of Verdicts, 98 HARV. L. REV. 1357 (1985) (arguing that, for law
to deter and for society and the courts to execute judgments
without reservation, a judgment must rest on past events rather
than evidence adduced at trial, and that the public and courts
will perceive a judgment as pertaining to the event instead of
the evidence presented only if the probabilistic nature of
judgments is kept covert by secret jury deliberations that
conceal the deliberative process and that radiate an aura that
the jury is better informed than others to reach an accurate
judgment about a past event); Charles R. Nesson, Reasonable Doubt
and Permissive Inferences: The Value of Complexity, 92 HARV. L.
REV. 1187, 1192-99, 1215-25 (1979) (referring also to the
acceptability of verdicts and the jury's function of resolving
disputes); Laurence H. Tribe, Trial by Mathematics: Precision
and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1340 n.34,
1374-75, 1381 & n.162 (1971) (arguing that a jury might give
statistical evidence undue weight, that, while verdicts not based
on statistical evidence will inevitably contain errors, those
errors are not intended, and that statistical evidence dehu-
manizes the defendant by not treating him or her as an individu-
al).
            The arguments based on the public's naivete, and
especially ones that seek to promote it, are hardly persuasive.
The legal profession should not try to engage in a wide-ranging
conspiracy to dupe the public, first because it will not succeed,
and second because our system of government relies on an
enlightened electorate to facilitate the resolution of complex
and intractable problems.
0
 See, e.g., WIGMORE ON EVIDENCE § 37.6, at 1047 n.4; Daniel Shaviro,
Statistical-Probability Evidence and the Appearance of Justice,
103 HARV. L. REV. 530 (1989); Ronald J. Allen, On the Significance
of Batting Averages and Strikeout Totals: A Clarification of the
"Naked Statistical Evidence" Debate, the Meaning of "Evidence,"
                                    11
inclined to agree with those advocating the more widespread use

of probabilistic evidence and would urge this Court to reconsider

Burks in banc, the strength of the arguments that have been

raised for distinguishing the two types of probabilities force me

to conclude that Victor is not necessarily incompatible with

Burks and hence that it provides no basis for overruling Burks. I

will set forth some of the stronger arguments against naked

statistical evidence here, although I iterate that in the end I

do not find them persuasive.

           Burks does not set up a requirement that testimonial or

circumstantial evidence be 100% reliable; had Burks done so, it

would fall under the weight of Victor.   No evidence is 100%

reliable, see supra at 6-8, and such foolproof reliability is not

needed.   But there is reliability, and then there is reliability.

Social science research, for example, has established beyond

peradventure that witness identifications, especially when cross-

racial and based on brief moments of observation, are quite

unreliable.   Perceptions, memories, communications, and veracity

in general are not perfect.    Yet such unreliability is not a

ground to set aside a jury verdict; for lack of a superior

alternative, we trust the jury, however foolishly, to resolve

those types of unreliabilities satisfactorily.0

and the Requirement of Proof Beyond a Reasonable Doubt, 65 TUL.
L. REV. 1093 (1991); Jonathan J. Koehler, The Probity/Policy
Distinction in the Statistical Evidence Debate, 66 TUL. L. REV.
141 (1991).
0
 So, for example, I would not question a mail clerk's statement
that he or she recorded every single item of correspondence that
was not sent via the U.S. mails, even though he or she easily may
have forgotten to record one that was not or he or she may be
prevaricating to protect his or her job (and so there is not
really a 100% chance that one not recorded actually was sent).
                                12
          Another problem with reliance on "naked statistical

evidence" is evident.    The majority seems to set the probability

cut-off at 95 percent.    See Maj. Op. at 7 n.3.0   Eventually,

given enough cases, we will be called upon to decide definitively

the precise percentage at which guilt is established beyond a

reasonable doubt.0   Unfortunately, once we set a threshold

percentage we will have every defendant showing us statistics on

the reliability of each piece of evidence, performing numerical

operations on the numbers, and demanding acquittal.     We will need

judges and lawyers with degrees in probability theory to make

sense out of the data.


Similarly, for example, I would not question the fact that the
"Y" on the insurance company's record of the check at issue here
means that the letter was in fact sent to the mail room, although
it may very well be the case that the "Y" was in error (there was
evidence in the record that Traveler's employees did not
regularly abide by other business procedures).
0
 This brings to mind the story about the 25 prisoners who were
gathered in a prison yard. A lone witness, too far away to make
out individual faces, observes one prisoner bravely attempt to
prevent the others from murdering a single guard who has fallen
down. The one prisoner, when unsuccessful, runs away and hides
while the others murder the guard. There is no evidence
exclupating any particular prisoner. Do we convict all or none
of the prisoners? And what if we change the courageous
dissenters to be 2, or 5? Where we draw the line is a crucial
question.
0
 This is not a pipedream. Many businesses have routinized
procedures where one can tell with great accuracy what the
percentage chance is that a certain event happened, and
technology has bestowed us with the capacity to estimate the
probabilities of coincidences in natural phenomenon (like the
contours of fingerprints or the structure of DNA). For example,
a business may know that, on average, 97% of its letters are sent
by U.S. mail. Or, a business may record 95% of its transactions,
and can show that a particular one was not recorded. Or, there
may be a 93% probability that the defendant's DNA matches a hair
follicle. Or, there may be a 90% probability that fingerprints
are the defendant's. The possibilities are as endless as the
imagination is gifted.
                                13
            To avoid these sorts of problems, when engaged in

appellate review we entertain a certain fiction:     we suppose that

evidence the jury was persuaded to be true, is.    That is what I

think both Victor and Holland v. United States, 348 U.S. 121,

140, 75 S. Ct. 127, 137-38 (1954) were getting at.    We discount

the likelihood that a witness who claims to be sure of something

cannot be, or is not, even if that likelihood is quite high,

unless it reaches the level of incredulity.    Instead we assign to

the jury, a sort of safety-net black box, the responsibility to

sort out truth from untruth and to draw reasonable inferences

from the truth.    When an innocent person is convicted, we assign

error to the unavoidable foibles of the jury system, and avoid

attributing it to the deliberate workings of the justice system.

            Public confidence in the judicial system requires

courts to draw the line somewhere.    Otherwise, a 95% probability

(the majority's ostensible minimum percentage) of a sperm match

of DNA alone (i.e., assuming not one other bit of evidence) could

be enough to defeat an alibi defense, no matter how strong, of an

alleged rapist, and similarly a 95% probability of a fingerprint

match could standing alone suffice to convict someone of robbery

if the jury rejected a strong alibi defense (and even contrary

statistical evidence).    Moreover, evidence that 95% of drivers on

a certain stretch of highway speed would be enough to convict all

who use the highway (that is, any random driver arrested) of

speeding.    I do not believe that the law has yet progressed to

that point, and I think that this is what Burks recognizes. Burks
does not set up a requirement of "absolute certainty," but


                                 14
implements a sensible criterion courts use to maintain public

respect for and confidence in judicial institutions.0     I respect

that other courts disagree on this point, but I do not see the

court of appeals cases the majority has cited in support of its

statistical evidence approach as having thoroughly reasoned

through the point; they merely summarily state the fact that a

demonstrated probability of guilt alone is enough.0     I surmise

that they might balk at the analogous examples I have just

raised.0

0
 I note, too, that the 95% rule may very well make proof of
mailing unnecessary. For example, if the government could show
that in the United States 95% of all letter correspondence sent
out of offices travels by U.S. mail, for appellate review
purposes the government would presumably never have to prove a
mailing when letter correspondence traveled out of an office, as
there will have been a greater than 95% chance, knowing nothing
more, that the U.S. mails were used. But see United States v.
Dondich, 506 F.2d 1009, 1010 (9th Cir. 1974) (rejecting such an
argument, although the government had not put on proof of the
prevalence of use of the postal system by businesses generally).
Of course, contrary evidence presented by the defendant could not
undermine this result if the jury convicts, since we would have
to construe the conviction as rejecting the defendant's evidence.
0
 In any event, United States v. Keplinger, 776 F.2d 678, 691 &
n.5 (7th Cir. 1985), cert. denied, 476 U.S. 1183, 106 S. Ct. 2919
(1986) and United States v. Miller, 676 F.2d 359, 362 (9th Cir.),
cert. denied, 459 U.S. 856, 103 S. Ct. 126 (1982), cited by the
majority, see Maj. Op. at 7 n.3, are distinguishable on the
ground that neither case quantified the probability that the
mails were not used. United States v. Bonds, 12 F.3d 540, 551-68
(6th Cir. 1993) is also distinguishable insofar as there was
substantial other evidence adduced in addition to the
probabilistic evidence on the point to be proven. See Bonds, 12
F.3d at 547-49. Thus, all those cases are consistent with my
reading of Burks, which held only that when naked statistical
evidence is the only evidence bearing on a point, a conviction
cannot be supported.
0
 While there is the possibility that the standard of proof could
be different for jurisdictional facts (such as the use of the
mails) than for facts used to establish the substantive elements
of a crime, see Charles R. Nesson, Reasonable Doubt and
Permissive Inferences: The Value of Complexity, 92 HARV. L. REV.
1187, 1215-25 (1979) (proposing such a distinction with respect
                                15
          The foregoing discussion expresses my basic

disagreement with the majority's conclusion that Burks' refusal

to accept "naked statistical evidence" can be contained to its

four corners.   Were it a question of first impression I would not

decide Burks the way it was, and would instead consider proof

that 99% of all mailings were received through the United States

mails sufficient to sustain the jury verdict; but it is my view

that Burks is not inconsistent with Supreme Court precedent and

hence binding upon us.

          I turn then to an explication of my reasons for

differing with the majority's reading of Burks regarding the

"specific reference requirement."



            II.   THE SPECIFIC REFERENCE REQUIREMENT   OF   BURKS

          I begin this discussion by respectfully noting my

disagreement with the majority's conclusion that the government

met the "specific reference" requirement of Burks in this case.

In Burks, the defendant was charged with submitting fraudulent

medical bills to an attorney, who subsequently submitted them to

insurance companies.     This court reversed the conviction because

there was insufficient evidence that the letter containing the

fraudulent insurance claim had passed through the United States

mails, an element of the offense.      The government adduced




to statistical evidence and arguing that a preponderance standard
would suffice for jurisdictional facts in criminal cases), no
court applying statistical evidence in criminal cases seems to
have explicitly drawn such a distinction, and the majority does
not appear to do so either.
                                16
testimony from two witnesses circumstantially demonstrating the

custom and practice of mailing and receiving correspondence.0

          The majority apparently attempts to limit Burks'

holding to require the government to prove "some [specific]

reference to the correspondence in question," and it concludes

that here Skowronski's testimony provided such a "specific

reference."   Maj. Op. at 7.   I am unpersuaded by that assertion

because I have a different understanding of what Burks meant by

specific reference.   The "specific reference" in this case

--Skowronski's testimony that she in fact forwarded the letter in

question to the "mail room"0 -- is not materially different from

the evidence in Burks that the attorney forwarded the letter in

question to his secretary (the attorney's "mail room"), or to the

testimony by the insurance company representative (Walters) that

the letter was in the company's files (and thus had very likely

been received by its "mail room").

0
 The secretary of the attorney who actually submitted the bills
to the insurance company testified that "most of the time
correspondence was sent by United States mails, but sometimes by
delivery." 867 F.2d at 797. A representative of the insurance
company testified to that company's routine practices, stating
that "`99 percent' of the time the mails were used." Id. Thus
the government had presented two types of custom evidence: that
of the sender and that of the recipient. Both together did not
suffice to convict in Burks. Id. (citing United States v. Scott,
730 F.2d 143, 147 (4th Cir.) (citing United States v. Ellicott,
336 F.2d 868, 871 (4th Cir. 1964) (holding in context of proof of
a mailing that "a probability . . ., however great, cannot
convict" (emphasis supplied))), cert. denied, 469 U.S. 1075, 105
S. Ct. 572 (1984)).
0
 To the extent that the majority relies on the fact that the
letter used to send Hannigan's fraudulently procured check was
marked with a "N" instead of a "Y", I am perplexed as to how that
fact is helpful at all. That evidence only establishes that
Skowronski sent the letter containing the insurance check to the
mail room; it has nothing to do with what happened to the letter
once it arrived there.
                                17
          I will focus on Walters' testimony that 99% of

correspondence the office received came via the United States

mails, although something similar could be said of the other

witness' testimony.    Walters had specifically referenced the

correspondence in question, because the letter was found in the

company's files.   For purposes of sufficiency of the evidence,

assuming that there is "specific reference" testimony placing the

letter in question at point X, I see absolutely no logical

difference between the persuasiveness or sufficiency of testimony

that 99% of all mail reaching point X (the company's files) came

from the United States mails and testimony that 99% of the mail

reaching point X (the company's mail room) was delivered to the

United States mails.   In either case one has a "specific

reference" but only a "probability" that the mails were used, a

probability that Burks found deficient as a matter of law.    Thus

it seems to me that, had the government established here that 99%

of the letters reaching the mail room were delivered through the

United States mails, the evidence would still have fallen short

of establishing guilt beyond a reasonable doubt according to the

reasoning of Burks despite the specific reference testimony
adduced here.

          What the majority fails to acknowledge is that the only

point of the "specific reference" requirement in Burks was to

boost the probabilities up from 99 to 100%.0   I have no doubt

0
After setting up the specific reference requirement, the Burks
Court stated that "[p]roof of the use of the mails . . . can be
circumstantial, such as testimony regarding office practice, so
long as the circumstances proven directly support the inference
and exclude all reasonable doubt to the extent of overcoming the
presumption of innocence." 867 F.2d at 797 (internal quotations
                                18
that, had Walters (not incredibly) testified that the United

States mails were always used (that is, used "100% of the time"),

the Burks Court would have found the evidence sufficient to prove

that a mailing had occurred despite the lack of a "specific

reference," for then the testimony would have established "more

than a probability that the mails had been used."   Id.   In short,

I believe the specific reference requirement in Burks is

intimately linked to its judgment that "`[p]robability is not

enough to convict a party of mail fraud,'" id. (quoting Scott,

730 F.2d at 147); the two concepts come to us as a package deal.

          Accordingly, it is my opinion that Burks does not

require "specific reference to the mailing in question" in future

mail fraud cases where the government proves beyond a reasonable

doubt that all correspondence was sent via the United States

mails.   I hope, however, that, in the near future, a case

presenting these issues will go in banc so that Burks can be

properly interred.   In the meantime, I hope that the government

will be more careful with its proof (or with its decision as to

when to bring mail fraud charges).   If it is, the problem for the

most part will go away.




omitted) (emphasis in original). The Court then held that
"`[p]robability is not enough to convict a party of mail fraud.'"
Id. (quoting Scott, 730 F.2d at 147).
                                19
