United States of America, Plaintiff-appellee, v. Joe Lee Morgan, Defendant-appellant, 469 F.2d 83 (6th Cir. 1972)

The defendant-appellant was convicted under both counts of a two-count indictment charging that he concealed and possessed property stolen from an interstate shipment of freight in violation of Title 18 U.S.C. § 659.

In this appeal he raises the issues as to whether the jury's verdict of guilty is supported by substantial evidence and whether the concurrent five-year sentences were excessive. Relying upon dicta contained in some decisions of this Court the appellant asserts that the test of the sufficiency of circumstantial evidence is whether or not the jury could reasonably find that that evidence excluded every reasonable hypothesis except that of guilt.

Despite any statements to the contrary in any opinion signed by the writer of this opinion this Court adheres to the rule stated in United States v. Prieur, 429 F.2d 1237, 1238 (6th Cir. 1970):

"Where evidence is circumstantial, the same test applies and it is not necessary that such evidence remove every reasonable hypothesis except that of guilt."

The statute under which the appellant was convicted provides for a fine of not more than $5,000, or imprisonment for not more than 10 years, or both. Since the sentence imposed was well within the maximum limits provided by law we find no abuse of discretion on the part of the District Judge. United States v. Dudley, 436 F.2d 1057 (6th Cir. 1971).

The judgment of the District Court is affirmed.