1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1 

 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 
2 

 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, 
3 

"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: 
4 

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 . . . 
5 

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 
6 

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 

 

0The 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). 

0Every 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). 
7 

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 

 

0We 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 
8 

 

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 
9 

 

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). 
10 

 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 
11 

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. 
12 

 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 
13 

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. 

 

0Of 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. 

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 
2 

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-
3 

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. 

 

0See 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 unconstitutional). 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). 
4 

 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 factfinding 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 
5 

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 defendant's typewriter was used to forge a document and stating that 
6 

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, 

 

0While 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). 
7 

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

 

0Deduction 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. 
8 

 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. 

0Indeed, 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)). 
9 

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, 

 

0I 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 
10 

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. 
11 

 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-probabilistic evidence as one of form rather than substance.0 While I am 

 

0See, 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 dehumanizes the defendant by not treating him or her as an individual). 

 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. 

0See, 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," 
12 

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 crossracial 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). 

0So, 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). 
13 

 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). 

0This 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. 

0This 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. 
14 

 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 
15 

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

 

0I 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. 

0In 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. 

0While 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 
16 

 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. 
17 

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"). 

 

0The 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)). 

0To 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. 
18 

 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 

 

0After 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 
19 

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).