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Tom Lance KLEIN, Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Eighth Circuit1984-02-28No. No. 83-2265
728 F.2d 1074

Summary

Holding. The appellate court affirmed Klein's conviction, finding that the identification testimony from two credible witnesses combined with fingerprint evidence was sufficient to support the jury's guilty verdict on mail fraud and fraudulent use of fictitious names charges.

Tom Lance Klein was convicted of mail fraud and fraudulent use of fictitious names after a mail order firearms scheme that defrauded customers of over $50,000. Two businessmen who interacted with the scheme's operator identified Klein as the perpetrator, selecting his photograph from a display and confirming their identification at trial. Additionally, Klein's fingerprints were found on four bank documents connected to the fraud.

Klein appealed, arguing the identification evidence was insufficient to prove he was the person who committed the fraud. He also challenged the credibility of one witness due to the absence of corroborating identifications from other bank employees, and disputed fingerprint evidence by claiming he had visited the office for an unrelated business purpose. The court rejected these arguments, finding the combined identification testimony and fingerprint evidence legally sufficient under the standard requiring evaluation of evidence in the light most favorable to the government.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of eyewitness identification evidence to prove defendant's identity
  • Weight of circumstantial evidence in supporting conviction
  • Impact of conflicting testimony regarding defendant's physical appearance
  • Significance of fingerprint evidence in connection with fraud scheme

Procedural posture

Klein appealed his district court conviction for mail fraud and related offenses on grounds of insufficient evidence and claimed constitutional violations.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

Tom Lance Klein appeals from his conviction under 18 U.S.C. §§ 1341 and 1342 for mail fraud and for fraudulently using fictitious names through the Postal Service. For reversal, Klein argues that the district court committed error in denying his motions for judgment of acquittal because the evidence was insufficient to identify Klein as the man who perpetrated the fraud.

Lloyd C. Jumper advertised a mail order firearms business in The Shotgun News. After Jumper accepted customer orders of over $50,000 without delivering any guns, he vanished, triggering a mail fraud investigation. Identification evidence linking Klein to the scheme included the testimony of two businessmen who dealt with Jumper repeatedly. In addition, Klein’s fingerprints appeared on several documents associated with the fraud.

We find that this identification evidence was sufficient to support Klein’s conviction. On appellate review of the sufficiency of evidence, this court considers the evidence in the light most favorable to the government and accepts all reasonable inferences as established. United States v. Pruitt, 702 F.2d 152, 155 (8th Cir.1983). Evidentiary conflicts are resolved in favor of the jury verdict. United States v. Scarpellino, 431 F.2d 475, 477 (8th Cir.1970). Although the evidence must be consistent with guilt, it need not be inconsistent with every other reasonable hypothesis. United States v. Swayne, 700 F.2d 467, 472 (8th Cir.1983). Circumstantial evidence is “intrinsically as probative as direct evidence” and may be the sole support for a conviction. United States v. Two Eagle, 633 F.2d 93, 97 (8th Cir.1980) (citations omitted).

Two witnesses who helped Jumper set up his business identified Klein as Jumper. After three or four negotiation meetings, a realtor named Baker leased an office to Jumper, and a banker named Reed met Jumper six or seven times for periods of five to twenty minutes when he opened an account and withdrew large amounts of cash. Both men accurately described Jumper as a bearded man physically resembling Klein. Reed selected Klein’s photograph from a display, and Baker did so on a second showing. Both men positively identified Klein as Jumper at trial. Under similar circumstances (an out-of-court photo display and an in-eourt identification), appellate courts have accepted similar identification testimony. United States v. Bangert, 645 F.2d 1297, 1303-04 (8th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 314, 70 L.Ed.2d 158 (1981); United States v. Wolfish, 525 F.2d 457, 462 (2d Cir.1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).

Klein’s witnesses testified that he had shaved his beard at the time of the fraud. This does not undercut the sufficiency of the identification evidence because Klein’s witnesses were his close friends and were imprecise as to when he was beardless. The jury resolves testimonial conflicts, and they could have rejected this conflicting evidence as biased or inaccurate.

Klein also argues that Reed’s testimony is weakened by the absence of identification evidence from other bank employees. In a similar context, this court found that “[t]he fact that the other witnesses were unable to make positive identifications of defendant does not ‘present any question of infirmity or discredit in the identification testimony arguable as a matter of law.’ ” United States v. Scarpellino, supra, 431 F.2d at 477 (quoting United States v. Stewart, 429 F.2d 15, 16 (8th Cir.1970)).

Klein’s fingerprints on four bank documents also supports the jury’s verdict. While Klein testified that he pushed papers off of a desk while visiting the office of Great Midwest Hardware for the purpose of selling a gun, the jury could properly have discounted Klein’s explanation for the fingerprints. The Shotgun News advertisement did not invite anyone to come to Midwest, nor did it advertise to buy any guns, and it specified “No over-the-counter sales.” Baker testified that he had been denied admittance when he visited the office. Moreover, it is unlikely that perpetrators of fraud would allow a stranger to handle bank records and checks in their office. Finally, the government established the improbability that all four documents would have been in the office simultaneously, given the dates of the documents and the frequency of Jumper’s banking transactions.

In a supplemental pro se brief Klein also claims violations of his fifth and fourteenth amendment rights stemming from prosecu-torial misconduct and the use of “false evidence.” We have carefully reviewed these arguments and find them to be meritless.

Accordingly, the judgment of the district court is affirmed.