UNITED STATES of America v. Altigraci ROSARIO, Appellant.
No. 96-5286.
United States Court of Appeals, Third Circuit.
July 10, 1997
Argued Jan. 23, 1997.
Put simply, then, the actual knowledge requirement is necessarily intertwined with the cause of action or the theory of the breach. See Martin v. Consultants & Administrators, Inc., 966 F.2d 1078 (7th Cir. 1992) (courts must take into account “the complexity of the underlying factual transaction, the complexity of the legal claim and the egregiousness of the alleged violation“).
At bottom, a determination of what the plaintiffs knew and when is a very fact-intensive inquiry. See Gluck, 960 F.2d at 1176 (requiring the district court to determine “as a factual matter” when the statutе began to run). I cannot agree with the majority‘s disregard of the inferences that the district court drew from the facts here.
Kevin McNulty, Office of the United States Attorney, Newark, NJ, Andrew O. Schiff (Argued), Office of the United States Attorney, Trenton, NJ, for Appellee.
Before: NYGAARD and LEWIS, Circuit Judges, and COHILL,* District Judge.
OPINION OF THE COURT
LEWIS, Circuit Judge.
Altigraci Rosario challenges her conviction on two counts of passing United States Treasury checks in violation of
I.
Altigraci Rosario operated a tax preparation service in Hightstown, New Jersey. Jose Rios, Rosario‘s nephew by marriage, was employed by Rosario and assisted with her tax preparation service. In February 1993, the U.S. Treasury Department mailed a Treasury check to Angel and Ana Andrade in the amount of $2,996.00. Soon thereafter, the Andrades filed a complaint with the Treasury Department alleging that they had not received the check.
On January 11, 1994, the New Jersey National/ Corestates Bank notified the U.S. Secret Service that Jose Rios had deposited the Andrade check into his account at the bank. That same day, the Secret Service interviewed Rios. During the interview, Rios stated that Rosario had given him the signed check and asked him to cash it. Rios apparently received a $20 fee for executing the transaction.
In September 1993, the U.S. Treasury Department mailed a tax refund check to Ivan Vitiello in the amount of $1,943.03. Subsequently, Vitiello filed a complaint with the Treasury Department alleging thаt he had not received the check. In his complaint, Vitiello identified Altigraci Rosario as his tax preparer. Vitiello stated that he had authorized Rosario to have the check delivered to her post office box, but he had not authorized her to cash the check.
On May 4, 1994, a U.S. Postal Inspector confirmed that Vitiello‘s check had been delivered to a post office box registered to Altigraci Rosario and Jose Rios. That same day, the Vitiello check was cashed at Reed‘s Garage in Cranbury, New Jersey. Employees of Reed‘s Garage informed the government that Rosario and Rios had cashed the Vitiello check. Sometime later, the government identified Rosario‘s fingerprint on the check.
On November 18, 1994, the government filed a two-count misdemeanor complaint against Rosario, charging her with negotiating two checks bearing forged endorsements in violation of
At trial, Angel and Ana Andrade testified that they had never met Rosario, used her service or authorized her or anyone else to endorse their check. Rios, the prosecution‘s chief witness, testified that Rosario had given him the Andrade check, which had been endorsed, along with a form of identification of the payee. Rosario asked Rios to cash the
Rios further testified that he had not met the persons whom Rosario told him had given her the check. Indeed, Rios stated that he “didn‘t even see the people.” App. at 47A. Accоrding to Rios, he took the Andrade check from Rosario, photocopied the identification and gave Rosario the cash, less a $20 fee. Rios stated that he did not actually see Rosario hand the cash over to any person who might be associated with the check, but that he did see her “talking to someone.” App. at 49A.
Finally, Rios testified that after the bank informed him that the Andrade check had been reported stolen, he looked for the photocopy that he had made of the identification but could not find it. When he informed Rosario about the check, Rios acknowledged that she seеmed “genuinely surprised” that the check had been reported stolen. App. at 54A.
The government supplemented the testimony of Rios with the testimony of a handwriting expert, Secret Service document examiner Jeffrey Taylor. After comparing the signature for Ana Andrade that appeared on the check with a known sample of Rosario‘s handwriting, Taylor testified that Rosario “probably” had forged the check herself—that is, it was “more likely than not” that she had done so. Essentially, the testimony of Rios, Taylor and the Andrades constituted the entirety of the government‘s case on Count 1 of the indictment.
After the jury renderеd its verdict, Rosario filed a Rule 29 motion for judgment of acquittal on Count 1 with the magistrate judge, arguing, inter alia, that the evidence was insufficient to sustain a conviction.2 The magistrate judge denied Rosario‘s post-trial motions. See United States v. Rosario, Crim. No. 94-5050K-01 (D.N.J. May 9, 1995).3 On June 2, 1995, the magistrate judge sentenced Rosario to eight months in prison on both counts to be served concurrently.4 At the time of sentencing, Rosario was already serving a one-year sentence for an unrelated bribery conviction.
Rosario then appealed the magistrate judge‘s decision to the district court pursuant to
The district court had jurisdiction over the criminal proceedings pursuant to
II.
Our review of a sufficiency of the evidence challenge is guided by strict princi-
Rosario was convicted of check forgery under
(a) Whoever, with intent to defraud—
....
(2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature;
shall be fined under this title or imprisoned not more than ten years, or both.
At trial, the magistrate instructed the jury that, under the statute, the government was required to prove the following elements beyond a reasonable doubt:
- that the defendant passed or attempted to pass a U.S. Treasury check,
- that the check bore a forged or falsely made endorsement,
- that the defendant passed the сheck with intent to defraud, and
- that the defendant acted knowingly and willfully.
Rosario, Crim. No. 94-5050K-01, slip op. at 7.
Rosario contends that the government failed to meet its burden on elements (2), (3) & (4). Specifically, she argues that Rios‘s testimony establishing that she possessed the check was insufficient to corroborate the testimony of the handwriting expert that she probably forged the check.
As noted earlier, Taylor testified that it was “probable” that Rosario had forged the check. “Probable” is a term of art used by Secret Service document examiners. The “probable” category falls exactly in the middle of the six-point spectrum between “positive identification” and “positive eliminаtion.” Thus, handwriting experts will use the term “probable” to describe
times when the evidence falls considerably short of the “virtually certain” category and yet still points rather strongly toward the suspect, i.e., there are several significant similarities present between the questioned and known writings, but there are also a number of irreconcilable differences and the examiner suspects that they are due to some factor but cannot safely attribute the lack of agreement to the effect of that factor.
Thomas V. Alexander, Definition of Handwriting Opinions, App. at 37A.
The government concedes that Taylor‘s testimony alone would be insufficient to sustain a conviсtion under
In reaching this conclusion, we are persuaded by the reasoning put forth in United States v. Richardson, 755 F.2d 685 (8th Cir. 1985) (per curiam) and United States v. Rivamonte, 666 F.2d 515 (11th Cir.1982) (per curiam). In both Richardson and Rivamonte, as here, the handwriting expert‘s testimony established only that it was “probable” that the defendant had forged the check.
In Richardson, the court upheld a check forgery conviction challenged on insufficiency grounds. The handwriting expert testified that Richardson had “probably” signed the check. This testimony was supplemented by evidence that Richardson had access to a key to the victim‘s home, that she had made a deposit in the exact same amount as the stolen check, and that her fingerprints were on the stolen check. In upholding the conviction, the court concluded that this was “ample evidence to support the verdict.” Richardson, 755 F.2d at 686.
Similarly, in Rivamonte, the court upheld a check forgery conviction based on the following evidence: a handwriting expert‘s testimony that the defendant had “probably” signed the check; the defendant‘s fingerprints were on the check; the defendant‘s account number was written on the back of the check; and the payees’ names were written on the defendant‘s pre-encoded deposit slip. Rivamonte, 666 F.2d at 516-17. The court held that “a jury reasonably could conclude that this evidenсe is inconsistent with every reasonable hypothesis of appellant‘s innocence.” Id. at 517.
Although in Richardson and Rivamonte the government offered slightly more circumstantial evidence than was offered at Rosario‘s trial, we are nevertheless convinced that the evidence establishing that the respective defendants had possessed the check was of primary significance in those cases. Our conclusion is bolstered by the Eleventh Circuit‘s post-Rivamonte decision in United States v. Henderson, 693 F.2d 1028 (11th Cir.1982). In Henderson, the court reversed a check forgery conviction based solely on ambiguous handwriting testimony and evidence showing that the defendant‘s wife had cashed the stolen check. The government offered no evidence that Henderson had ever possessed the check. Distinguishing Rivamonte, the court noted:
Although both Rivamonte and the present appeal had handwriting experts testify that the respective defendants “probably” endorsed the checks, the additional evidence in Rivamonte constituted sufficient evidence to sustain a conviction. The fingerprints and the defendant‘s account number support the conclusion drawn by the handwriting expert in Rivamonte.
Here, although Rosario‘s fingerprints were not found on the check, Rios‘s testimony established that Rosario was in possession of the check. Thus, Rios‘s testimony that Rosario possessed the check рrovided the same corroboration for the handwriting expert‘s testimony that the fingerprint evidence in Rivamonte and Richardson did. See also Chatman v. U.S., 557 F.2d 147, 148 (8th Cir.1977) (per curiam) (upholding check forgery conviction because accessibility of payee‘s mailbox to defendant provided corroboration for less than conclusive expert handwriting testimony).
In our view, because the evidence established that Rosario did, in fact, possess the check, the jury could have used that fact to corroborate the handwriting expert‘s testimony that she had probably forged the signature on the check. While neither of these factors independently would be sufficiеnt to support a conviction, taken together they are sufficient to support the jury‘s guilty verdict.8
Finally, we acknowledge that this is a close case. Indeed, were we sitting as triers of fact, we very well may have come to a different conclusion than the jury did here. Nevertheless, we cannot say that there was insufficient evidence to support the jury‘s verdict. Accordingly, we affirm Rosario‘s conviction.
NYGAARD, Circuit Judge, dissenting.
The government argues that the combination of wholly ambiguous testimony from a handwriting expert and equivocal testimony from a witness receiving favorable treatment from the government is sufficient to support thе conviction of Altigraci Rosario for passing a United States Treasury check. The majority accepts this argument. I do not; hence, I dissent.
To convict Rosario of check forgery under
Jeffrey Taylor, the government‘s handwriting “expert,” could only testify that Rosario “probably” signed the name “Ana Andrade” to the back of the Andrades’ check. The trial record shows, however, that Taylor‘s testimony was even more ambiguous. Indeed, under cross-examination Taylor conceded that there were a number of “irreconcilable differences” between the Ana Andrade signature on the check and Rosario‘s sample signature. App. at 35A. Moreover, Taylor candidly admitted that there was “some doubt” in his mind as to whether Rosario signed Ana Andrade‘s name on the cheсk. App. at 35A-36A. Significantly, Taylor also acknowledged on direct examination that he “found no evidence that [Rosario] wrote the remaining signature [Angel Andrade‘s] on that check.” App. at 32A. Taylor‘s concessions make his already equivocal conclusion that Rosario “probably” forged Ana Andrade‘s name on the check even less reliable. I would conclude that inferences drawn from such clearly ambiguous testimony cannot possibly satisfy the government‘s burden of establishing beyond a reasonable doubt that Rosario forged Ana Andrade‘s signature on the check.
Recognizing the inherent weakness of Taylor‘s vague opinion, the government would have us rely on the testimony of Rios for support that Rosario forged the check. Rios‘s testimony, it argues, establishes that Rosario both possessed and had the opportunity to forge the check, thereby allowing the jury to infer that Rosario did, in fact, forge Ana Andrade‘s signature on the check. By presenting evidence that Rosario possessed the check and had the opportunity to sign it, the government contends that it provided validation for Taylor‘s equivocal opinion that Rosario probably forged the check. In support of its argument, the government relies primarily on two cases where courts affirmed forgery convictions based in part on testimo-
In my view, however, reliance on Richardson and Rivamonte is imprudent for a number of reasons. First, notwithstanding the assertion that the government offered only “slightly” more circumstantial evidence in Richardson and Rivamonte than that adduced here, Maj. Opinion at 164, the records in those cases demonstrate that there was ample evidence tending to establish all elements of those check forgery convictions.
For example, in Richardson, the court affirmed a check forgery conviction where the handwriting expert‘s testimоny was complemented by evidence showing that Richardson had a key to the home where the check was stolen, Richardson‘s fingerprints were found on the stolen check, a stolen deposit slip was used to cash the check, and Richardson had made a deposit in the exact same amount as the stolen check during the time period in which the stolen check was cashed. 755 F.2d at 686.
Similarly, in Rivamonte, the court affirmed a check forgery conviction where the expert‘s opinion was complemented by evidence showing that Rivamonte‘s fingerprints and palmprints were found on the check, the defendant‘s acсount number was written on the back of the check, the payee‘s names were written on Rivamonte‘s pre-encoded deposit slip, and a deposit was made in the defendant‘s account on the same day that the stolen check was negotiated. 666 F.2d at 516-17.
In each case, the government proffered strong circumstantial evidence specifically related to the respective defendants’ possession of the stolen checks, their intent to defraud and their states of mind. Such was not the case here, where the government, lacking sufficient evidence to establish any of these elements bеyond a reasonable doubt, was forced to ask the jury to speculate that Rosario forged the check, passed the check with intent to defraud, and acted with requisite knowledge and willfulness.
I do not believe we can contort Richardson and Rivamonte to support the proposition that testimony from a handwriting expert indicating that a defendant “probably” forged a stolen check in conjunction with evidence showing possession of the stolen check by the defendant constitutes sufficient evidence to affirm a conviction under
United States v. Hall, 632 F.2d 500 (5th Cir.1980), is not to the contrary. In Hall, the court held that once forgery is conclusively proven, inferences of fact regarding possession, intent and knowledge can be permissibly drawn by the government. Id. at 502. The handwriting expert in Hall, however, provided an unequivocal opinion that the defendant had forged the payee‘s name on the stolen check, thereby providing the government with conclusive factual proof of the forgery element of the offense from which inferences tending to establish the other elements of the offense could be drawn. Id. Here, in contrast, the government has offered only ambiguous, inconclusive testimony regarding the forgery element of the offense. As such, there is no conclusively proven fact of forgery from which the government could draw inferences tending to establish the other elements of the offense of conviction.
My interpretation of the case law is supported by the post-Rivamonte decision in United States v. Henderson, 693 F.2d 1028 (11th Cir.1982), which, in my view, does not bolster the government‘s argument. In Henderson, the court reversed a check forgery conviction based on ambiguous handwriting testimony and circumstantial evidence tending to show that the defеndant‘s wife had cashed the stolen check. In reaching its decision, the court reasoned as follows:
Notwithstanding the absence of any legal precedent for its conclusion that ambiguous handwriting evidence coupled with evidence of possession constitutes sufficient evidence to affirm a conviction under
Finally, I am concerned because parts of Rios‘s testimony directly contradict inferences that the jury was supposed to have drawn from Rios‘s testimony. Fоr instance, on cross-examination Rios testified that Rosario did not know that the check was stolen. App. at 52A. Such testimony clearly undercuts the idea that the jury could infer that Rosario had the requisite knowledge and intent to defraud necessary to support a conviction under
In summary, I believe that the evidence adduced by the government at trial falls far below the horizon of certainty we require in criminal prosecutions and is not sufficient to convict Rosario beyond a reasonable doubt. Handwriting analysis is at best an inexact science, and at worst mere speculation itself. See, e.g., D. Michael Risinger et al., Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification “Expertise”, 137 U. Pa. L.Rev. 731, 739 (1989) (reporting that “[f]rom the perspective of published empirical verification, handwriting identification expertise is almost nonexistent“). As such, I do not believe that wholly ambiguous testimony from a handwriting “expert” and selected testimony from a witness receiving favorable treatment from the government can satisfy the government‘s burden of proof. Accordingly, I would reverse Rosario‘s conviction.
Ronald R. YESKEY, Appellant, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Joseph D. Lehman; Jeffrey A. Beard, Ph.D.; Jeffrey K. Ditty; Does Number 1 Through 20, Inclusive, Appellees.
No. 96-7292.
United States Court of Appeals, Third Circuit.
July 10, 1997
Argued Jan. 31, 1997.