Friendly, Chief Judge, and Lumbard and Mulligan, Circuit Judges.
The sole question meriting discussion in this opinion*fn1 is the sufficiency of the evidence to warrant submission to the jury of the question whether Taylor "with intent to defraud" kept in possession and concealed a quantity of counterfeit Federal Reserve notes found in a car which Taylor, accompanied by one MacDonald, was driving from Canada into the United States.
Counsel for appellant asks us, as many others have done, to overrule the so-called "Second Circuit rule," first enunciated by Judge Learned Hand in United States v. Feinberg, 140 F.2d 592, 594 (2 Cir.), cert. denied, 322 U.S. 726, 64 S. Ct. 943, 88 L. Ed. 1562 (1944), and later challenged, at great length but without success, by Judge Jerome Frank in United States v. Masiello, 235 F.2d 279, 285 (2 Cir.), cert. denied, 352 U.S. 882, 77 S. Ct. 100, 1 L. Ed. 2d 79 (1956) (concurring opinion). The "rule" in this circuit has been that "the standard of evidence necessary [for the judge] to send a case to the jury is the same in both civil and criminal cases," even though the jury must apply a higher standard before rendering a verdict in favor of the proponent in the latter. United States v. Feinberg, supra, 140 F.2d at 594. Despite our reverence for Judge Hand, perhaps in part because of our desire to remove one of his rare ill-advised opinions from public debate, we agree that the time for overruling the Feinberg "single test" standard has arrived.
It is, of course, a fundamental of the jury trial guaranteed by the Constitution that the jury acts, not at large, but under the supervision of a judge. See Capital Traction Company v. Hof, 174 U.S. 1, 13-14, 43 L. Ed. 873, 19 S. Ct. 580 (1899). Before submitting the case to the jury, the judge must determine whether the proponent has adduced evidence sufficient to warrant a verdict in his favor. Dean Wigmore considered, 9 Evidence § 2494 at 299 (3d ed. 1940), the best statement of the test to be that of Mr. Justice Brett in Bridges v. Railway Co.  L.R. 7 H.L. 213, 233:
Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the Plaintiff is bound to maintain?
It would seem at first blush -- and we think also at second -- that more "facts in evidence" are needed for the judge to allow men, and now women, "of ordinary reason and fairness" to affirm the question the proponent "is bound to maintain" when the proponent is required to establish this not merely by a preponderance of the evidence but, as all agree to be true in a criminal case, beyond a reasonable doubt. Indeed, the latter standard has recently been held to be constitutionally required in criminal cases. In re Winship, 397 U.S. 358, 361-364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). We do not find a satisfying explanation in the Feinberg opinion why the judge should not place this higher burden on the prosecution in criminal proceedings before sending the case to the jury.
After acknowledging "that in their actual judgments the added gravity of the consequences [in criminal cases] makes them [the judges] more exacting," 140 F.2d at 594, Judge Hand based the refusal to require a higher standard of sufficiency in criminal cases on authority and a belief that "while at times it may be practicable" to "distinguish between the evidence which should satisfy reasonable men, and the evidence which should satisfy reasonable men beyond a reasonable doubt[,] . . . in the long run the line between them is too thin for day to day use." Id.
However the argument from authority may have stood in 1944, that battle has now been irretrievably lost. See 2 C. Wright, Federal Practice and Procedure § 467, at 255-257 (1969), and cases there cited. Almost all the circuits have adopted something like Judge Prettyman's formulation in Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837, 67 S. Ct. 1511, 91 L. Ed. 1850 (1947). This, along with its rationale, reads as follows:
The functions of the jury include the determination of the credibility of witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts. It is the function of the judge to deny the jury any opportunity to operate beyond its province. The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy. The critical point in this boundary is the existence or non-existence of reasonable doubt as to guilt. If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make. The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge's function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond a reasonable doubt within the fair operation of a reasonable mind.
The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter. (footnotes omitted)
On Judge Hand's second point, while we agree there will be few cases where application of Judge Prettyman's test would produce a different result, we cannot say these are non-existent, as indeed he conceded. The Supreme Court has recognized the feasibility of a standard intermediate between preponderance and proof beyond a reasonable doubt, to wit, clear and convincing evidence. Chaunt v. United States, 364 U.S. 350, 353-354, 81 S. Ct. 147, 5 L. Ed. 2d 120 (1960) (denaturalization); Woodby v. INS, 385 U.S. 276, 285-286, 87 S. Ct. 483, 17 L. Ed. 2d 362 (1966) (deportation). Implicit in the Court's recognition of varying burdens of proof is a concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury.
A further reason for wiping the rule enunciated in United States v. Feinberg off the books is that in practice it is no longer followed in this circuit when reviewing the denial of motions for acquittal for insufficiency of the evidence. In numerous cases this court, without having expressly overruled Feinberg, has announced a stricter standard. See, e.g., United States v. Lefkowitz, 284 F.2d 310, 315-316 (2 Cir. 1960); United States v. Robertson, 298 F.2d 739 (2 Cir. 1962); United States v. Kahaner, 317 F.2d 459, 467-468 (2 Cir.), cert. denied, Corallo v. United States, 375 U.S. 835-836, 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963); United States v. Glasser, 443 F.2d 994, 1006 (2 Cir.), cert. denied, 404 U.S. 854, 92 S. Ct. 96, 30 L. Ed. 2d 95 (1971); United States v. Brown, 456 F.2d 293, 295 (2 Cir. 1972). In other cases we have tested sufficiency under the stricter formulation as well as the Feinberg test, thereby implying that the latter was not strong enough. See, e.g., United States v. Monica, 295 F.2d 400, 401 (2 Cir. 1961), cert. denied, 368 U.S. 953, 82 S. Ct. 395, 7 L. Ed. 2d 386 (1962); United States v. Coblentz, 453 F.2d 503 (2 Cir.), cert. denied, 406 U.S. 917, 92 S. Ct. 1766, 32 L. Ed. 2d 116 (1972); United States v. Iannelli, 461 F.2d 483, 486 n. 4 (2 Cir. 1972); United States v. Massarotti, 462 F.2d 1328, (2 Cir. 1972). Some of our district judges have sensed that a change may have occurred. Judge Bryan seems to have been the first to perceive this, see United States v. Leitner, 202 F. Supp. 688, 693-694 (S.D.N.Y.1962), aff'd, 312 F.2d 107 (2 Cir. 1963). Other district judges have followed, some expressly, see United States v. Melillo, 275 F. Supp. 314, 317-318 (E.D.N.Y.1967); United States v. Chas. Pfizer & Co., 281 F. Supp. 837, 839 (S.D.N.Y.1968), rev'd on other grounds, 426 F.2d 32 (2 Cir. 1970), aff'd by an equally divided court, 404 U.S. 548, 92 S. Ct. 731, 30 L. Ed. 2d 721 (1972), and others, we have no doubt, silently. Yet it would be wholly understandable that other district judges still feel bound to follow Feinberg, thereby occasionally, although rarely, producing a ...