United States v. Lee, 72-2062.

• Citation: 485 F.2d 41
• Decision Date: 05 October 1973
• Docket Number: No. 72-2062.,72-2062.
• Parties: UNITED STATES of America, Appellee, v. Clifford Taylor LEE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

485 F.2d 41 (1973)

UNITED STATES of America, Appellee, v. Clifford Taylor LEE, Appellant.

No. 72-2062.

United States Court of Appeals, Fourth Circuit.

Argued March 8, 1973.

Decided October 5, 1973.

Thomas R. Dyson, Jr., Alexandria, Va., for appellant.

Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Appellant, Clifford Taylor Lee (hereafter Lee or defendant), was tried and convicted by a jury in the District Court for the Eastern District of Virginia on all counts of a ten-count indictment. He was charged in four counts with forging Government Transportation Requests (GTR's) and in four counts with uttering the same, all in violation of 18 U.S. C. § 508. In the two counts remaining the defendant was charged with obtaining property by false pretenses in violation of 18 U.S.C. § 13 assimilating §§ 18.1-118 and 18.1-107 of the Code of Virginia, 1950, as amended, on lands under the territorial jurisdiction of the United States (18 U.S.C. § 7). On appeal the parties submitted an agreed statement of facts which may be stated in abbreviated form in the paragraphs to follow.

According to testimony it was shown that a GTR is a form of negotiable instrument and constitutes a request by a government agency (in this case the United States Department of Labor) to a carrier to furnish transportation to the designated bearer. At trial in 1972 none of the ticket agents had any recollection of the transaction involving any particular GTR and thus no agent was able to state whether or not the signature of the traveler or issuing officer thereon was made in his presence. Each agent was able to state positively that a particular GTR was passed to him at his ticket counter at Washington National Airport by virtue of the stamp appearing on the back of the GTR which reflected the day of the uttering, the ticket agent's number, and the place where the GTR was received.

Each of the four GTR's has thereon a space for the signature of the issuing officer and a space for the signature of the traveler. All signatures on the four GTR's involved in this case were of unknown or fictitious persons except the purported signature of Thomas W. Hall. The head of the personnel department of the Department of Labor testified from his official records that no one by the name of Barry Adams, Terry Bell, John Thompson, Mary French or John Taylor had ever worked for the Department and no such names were reflected in any records of the Department.¹ The Government produced the real Thomas W. Hall, an employee of the Department, who testified that the signature on the GTR's bearing his name were forgeries and that he had never authorized anyone to sign his name; that he had never handled or received any of the GTR's here involved. There was other evidence to show that the GTR's were false and forged but that all of the tickets which were issued in exchange for them were, in fact, used for airline transportation.

The evidence disclosed that the defendant, Lee, was an attorney in the Solicitor's office of the United States Department of Labor. Extensive handwriting exemplars were taken from Lee and two handwriting and document analysts testified that the defendant was the forger of six of the eight names on the four GTR's with the high probability that the defendant affixed the remaining two signatures.

A forged GTR, admitted in evidence but not included in the indictment, had been passed on May 20, 1970, at the Northwest Airlines ticket counter of the Statler-Hilton Hotel in Washington, D. C. This instrument bore a number consecutive to that of one of the GTR's described in the indictment and there was circumstantial evidence to indicate that the two GTR's bearing consecutive numbers were used to provide transportation for a man and woman for round trip travel to Chicago, Illinois.

The defendant did not testify and the only witness for the defense was a fingerprint expert who testified that none of the fingerprints found on three of the four GTR's matched those of the defendant and that one which was passed at the Washington National Airport had no identifiable fingerprints on it. On cross-examination the expert testified that the defendant could have handled the forged instruments without leaving fingerprints thereon.

At the close of the Government's case Lee moved for a judgment of acquittal, pursuant to Rule 29, F.R.Crim.P., on the ground that the prosecution had failed to prove that venue lay in the Eastern District of Virginia since there was no evidence of any kind to show that the accused was ever in Virginia or that he committed a crime there. The United States countered with the argument that there was evidence sufficient to prove that Lee forged the instruments and that the prosecution was entitled to the benefit of a presumption that the forgery occurred in the Eastern District of Virginia because the GTR's were uttered there and were first found there in their forged condition.

Included in the court's charge to the jury appear the following:

"Insofar as the offense of uttering or obtaining property or money by false pretenses, there is no evidence that the Defendant was the actual passer — which is what uttering is, passing or attempting to pass — or that he in fact actually tried to obtain or did obtain any airline tickets by means of false pretenses. Therefore, if the Defendant is to be found guilty of the offense of uttering or the offense of obtaining money or property by false pretenses he must be found guilty because he is what is known as an aider or abettor in a crime.

. . . . . .

"The burden is also on the United States to prove, beyond a reasonable doubt, that the forgery was committed within the Eastern District of Virginia in order to give jurisdiction to this Court. In this connection, you are told that in the absence of evidence to the contrary the presumption is that the forgery was committed where the travel requests were first found in a forged state. That is, the finding of the forged instrument at the National Airport is itself sufficient to warrant the inference that the forgery was committed there and was, therefore, within the jurisdiction of this Court." (Emphasis added.)

Appellant Lee contends that the district court erred in denying his motion for judgment of acquittal, in ruling that the Government was entitled to a presumption that the forgery of the GTR's was committed where they were first found at the National Airport in a forged state and in so instructing the jury.

The United States Constitution contains pertinent venue provisions of general application. Art. III, § 2, Cl. 3 provides:

"The Trial of all Crimes, . . ., shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed . . . ."

Amendment VI provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district, wherein the crime shall have been committed . . . ."

The sole issue here is whether the evidence was sufficient to establish venue in the Eastern District of Virginia in which district the National Airport is located. The only relevant evidence was that the forged GTR's were passed or uttered in said district. We conclude that the assignments of error are without merit and that the convictions must be affirmed.

In support of his contentions Lee places sole reliance on Serio v. United States, 126 U.S.App.D.C. 297, 377 F.2d 936 (1967). That case involved four altered money orders which were presented and uttered in Washington, D. C., on the same day of their issuance. The defendant, Serio, was charged with altering the instruments and he and a codefendant were charged with the uttering thereof. The codefendant had been convicted on the uttering charge in the District of Columbia and his conviction had been previously affirmed on appeal by the D. C. Circuit. The evidence indicated, as stated in the majority opinion of the Court of Appeals, that Serio had filled in the money orders with the name of a payee whose automobile registration card and driver's license had been stolen. The evidence indicated that the codefendant had uttered the instruments in Washington, D. C. Serio was convicted on the altering counts, and on the uttering counts as an aider and abettor. The evidence further disclosed that the money orders were issued in Maryland, Serio resided in Maryland, the payee whose name was forged resided in Maryland, and the payee's stolen driver's license which was used for identification purposes in cashing the money orders was issued in Maryland. The Serio court noted all of these facts and stated:

"Faced with this factual situation as to venue, the United States contends there is a presumption `or at least an inference\' that the altering occurred in this jurisdiction because the uttering occurred here. There is decisional support for a presumption that alteration of an instrument such as a money order occurred where it was uttered, provided the uttering was by the same person charged with the alteration, or the one so charged is shown to have been in possession of the instrument where the uttering occurred. True, in Judge Story\'s instructions to the jury in United States v. Britton, 24 Fed.Cas. 1239, 1241 (No. 14,650) (C.C.D.Mass.1822), he stated there was a presumption an instrument was forged where it is first found in its altered state or uttered, but the defendant there had possession of the instrument when he unsuccessfully presented it for payment. Other authorities state the presumption as requiring possession by the accused in the jurisdiction where he is charged with having made the alteration. 1 Wharton, Criminal Evidence (12th ed.) § 92; 3 Greenleaf, Evidence 120-21. Cf. The King v. Parkes & Brown, 2 Leach 776, 168 Eng.Rep. 488 (17

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