United States v. Swan

• Decision Date: 03 June 1968
• Docket Number: Docket 31963.,No. 434,434
• Citation: 396 F.2d 883
• Parties: UNITED STATES of America, Appellee, v. Donald SWAN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

396 F.2d 883 (1968)

UNITED STATES of America, Appellee, v. Donald SWAN, Appellant.

No. 434, Docket 31963.

United States Court of Appeals Second Circuit.

Argued April 10, 1968.

Decided June 3, 1968.

Certiorari Denied October 28, 1968.

Ronald Gene Wohl, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellee.

Frederick M. Reuss, Jr., Hollis, New York, for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges.

Certiorari Denied October 28, 1968. See 89 S.Ct. 254.

LUMBARD, Chief Judge.

Donald Swan appeals from a judgment of conviction by a jury in the Eastern District of New York on twelve counts of mail fraud and one count of conspiracy to commit mail fraud. 18 U.S.C. §§ 1341, 371. His main contention on appeal is that various student records from Columbia University, used as exemplars of his handwriting, were improperly received in evidence. Under the circumstances of this case we find that the Columbia University records were admissible in evidence under 28 U.S.C. § 1731 for the purpose of establishing a standard of comparison to determine the genuineness of other handwriting which the Government sought to attribute to defendant. As the other points urged on appeal are also without merit, the judgment is affirmed.

The indictment charged Donald Swan and Andrew Portoghese with devising a scheme to defraud mail order vendors by ordering merchandise in 1963, 1964 and 1965 under assumed names and then failing to pay for the items they received. The Government sought to prove at trial that items ordered by Portoghese were sent to fictitious persons such as Dr. D. Swanson, Dr. Dwan, Dr. D. Wann, etc., at Swan's residence. Items ordered by Swan were allegedly sent to Portoghese's address in the name of Dr. F. Tavarro, and, by arrangement with a business associate of Portoghese's, to his business associate's address in the name of Dr. David Levy. At trial, nineteen persons testified for the Government, including Portoghese who pleaded guilty to one count of mail fraud on the second day of trial. No witnesses were called by the defense.

As part of its case, the government tried to show through the testimony of a handwriting expert that the various mail order forms used to order merchandise under the fictitious names of "Dr. Levy" and "Dr. Tavano" had been filled out by Swan. Before calling its handwriting expert, the government introduced into evidence, through the testimony of an Assistant to the Registrar of Columbia University, Swan's 1955 application to the Graduate School of Business Administration and registration and other forms submitted to the school while Swan was a student, in 1954, 1955 and 1956, which records the University had retained in the regular course of business as part of its official records. The court received the evidence as business records under 28 U.S.C. § 1732 subject to connection by the Government. Swan's counsel did not object to their admission for the purpose of proving that the signature written on the records was Swan's signature; indeed, it is admitted on appeal that the signature is Swan's signature and the pictures attached to the applications are pictures of Swan. However, defense counsel objected at length to the admission of the records for the purpose of using the writing on the records as exemplars of Swan's writing for purposes of comparison by the handwriting expert, and at the close of the government's case moved to strike both the exhibits and the handwriting expert's testimony because the documents had not been connected.

We find that Judge Mishler did not err in denying defendant's motions to strike the Columbia University records and the testimony of the government's handwriting expert. "The admitted or proved handwriting of any person shall be admissible, for purposes of comparison, to determine genuineness of other handwriting attributed to such person." 28 U.S.C. § 1731. The government proved the genuineness of the exemplars to the satisfaction of the court. In order to secure reversal on appeal of the trial court's ruling defendant must show that the ruling was not fairly supported by the evidence. Citizens' Bank & Trust Co. of Middlesboro, Ky. v. Allen, 43 F.2d 549, 550-551 (4th Cir. 1930); Annotation: Genuineness of Exemplar-Proof, 41 A.L.R.2d 575, 582 (1955); 2 Wharton's Criminal Evidence § 582 (R.A. Anderson 12th ed. 1955); 7 Wigmore on Evidence § 2020 (3rd ed. 1950). The defendant has failed to meet this burden.

Co-defendant Portoghese testified that the printing on the Columbia University records is "similar to Donald Swan's," and that the printing looked the same as the printing on some checks that Portoghese received from Swan. While Portoghese was not absolutely certain that the printing was Swan's, the combination of his testimony and the inference which the trial judge could draw from the nature of the papers themselves and the testimony of the Assistant Registrar was a sufficient foundation for their admission for use as an exemplar of Swan's handwriting and printing. Butler v. State, 38 Ala.App. 527, 93 So.2d 441, cert. denied, 265 Ala. 694, 93 So.2d 445 (1956).

The trial judge was entitled to rely in part upon the circumstantial evidence before him. Dean v. United States, 246 F. 568 (5th Cir. 1917). As in the Dean case, this court has examined the documents used as exemplars. We find that they are of such a character that there is a strong inference that they were filled out by the signer. Each of the registration cards has a space marked "STUDENT'S SIGNATURE" in which appellant admittedly wrote "Donald A. Swan." At the top of each card are instructions: "Print your name exactly as it should appear on all official records." On each card the name "Donald Arthur Swan" is printed in the same color ink as Swan's admitted signature. The body of the cards and other documents are filled out in a mixture of block printing and script. In each case the writing is all in the same color ink and appears similar to the printed and written names. An Assistant Registrar of Columbia University testified at the trial that it is customary for students to fill out their own...