UNITED STATES of America, Appellee, v. Arthur Joseph MAYER, Appellant, 441 F.2d 322

PER CURIAM: Our review of the record convinces us that the judgment of conviction must be vacated. The evidence presented by the prosecution did not justify a jury instruction relating to inferences which might be drawn from possession of recently stolen property. This is so because of the deficiency of proof regarding Mayer’s alleged possession of the property in question, either actual or constructive. See, e. g., Lawrence v. United States, 400 F.2d 624, 627 (9th Cir. 1968).

Excluding impermissible inferences, the evidence was simply insufficient to support Mayer’s conviction of the offense with which he was charged. Upon remand, the indictment will be dismissed. Reversed. . In his dissenting comments, Judge Carter recognizes that our court should, in some circumstances, direct the dismissal of an indictment when it vacates a conviction for insufficiency of the evidence. All agree that the power is discretionary, and the majority accepts the proposition that it is a power that should be exercised with caution.

In this particular case, the majority’s view, expressed quite simply, is that it would be manifestly unfair to subject Mayer to further exposure. It is obvious from the record that the prosecution recognized its need to establish that Mayer had possession of the stolen vehicle. Unless it could do so by the requisite degree of proof, it could not prove its case; consequently, it is inconceivable to the majority that the prosecuting authorities did not accumulate and present every bit and piece of admissible evidence which was available.

With all of its resources, the Government could only muster evidence which Judge Carter himself agrees was woefully inadequate. While it accords much deference to Judge Carter’s opinion, the majority refuses to impose additional expense or other burdens upon the general public, the District Court, the prosecution, and Mayer.