Ciullo v. United States, 17659.

• Decision Date: 31 October 1963
• Docket Number: No. 17659.,17659.
• Parties: Salvatore J. CIULLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

117 US App. DC 31, 325 F.2d 227 (1963)

Salvatore J. CIULLO, Appellant, v. UNITED STATES of America, Appellee.

No. 17659.

United States Court of Appeals District of Columbia Circuit.

Argued June 28, 1963.

Decided October 31, 1963.

Mr. Jacob Goldberg, Washington, D. C., with whom Mr. Norman A. Flaningam, Washington, D. C. (both appointed by this court), was on the brief, for appellant.

Mr. Gerald A. Messerman, Asst. U. S. Atty. with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BASTIAN and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

Appellant was indicted on a charge of violating the false pretense statute,¹ convicted, and sentenced to imprisonment for one to three years. He contends that the trial court erred in refusing to charge the jury on the lesser included offense of passing a bad check.²

The crime of false pretense has five elements: false representation, knowledge of falsity, intent to defraud, reliance by the defrauded party, and obtaining something of value. The first three are enough to violate the bad check statute when the representation involves a worthless check.

The Government in its brief appears to accept the principle that, in order to obviate the need for the requested instruction, the defense testimony must "affirmatively" establish the distinguishing elements, i. e., obtaining and reliance. We take "affirmatively" in this context to mean that the evidence in question admits of no rational inferences other than those establishing the existence of the two elements involved. To apply a lesser standard would be to trench upon the jury's function, and to deprive appellant of his right to have the jury reach its own conclusions from evidence which is susceptible of varying interpretations. We turn to the record in this case, therefore, for the purpose of making such a rigorous and exacting measurement.

A salesman, testifying as a Government witness, identified appellant as the man who, with a girl, entered a Dalmo Appliance Company store to buy a television set and in payment wrote the check which proved worthless. The salesman said he relied on the validity of the check in giving the appellant a receipt which entitled him to pick up the set at another Dalmo store. On cross-examination, the witness admitted that he heard appellant and the girl discussing the fact that the set was to be hers; his final response, however, was that he could not "say with certainty whose set it was." He stated flatly that both the girl and appellant were strangers to him. The girl, called to testify by the appellant, stated that the set was for her, but that because she was too young to enter into an installment purchase contract, she agreed with appellant that he would pay the purchase price and she would reimburse him in monthly payments. On direct examination she testified that, in her presence, appellant picked up the set, placed it in his car, drove to her apartment, and carried the set in. She further stated that the set remained hers and that she subsequently paid the full purchase price to Dalmo's upon discovering that the appellant's check was worthless.

We think one distinguishing element, that of obtaining, was removed from dispute by defense testimony which conclusively established that appellant obtained something of value — either for himself or for another — from the allegedly defrauded merchant.³

The distinguishing element of reliance presents a greater problem and requires a more detailed examination of the relevant portions of the record. In weighing this evidence, we are mindful of our observation in Gilmore v. United States, 106 U.S.App.D.C. 344, 347, 273 F.2d 79, 82 (1959), that the defrauded party's belief in the validity of the check must have been "a contributing influence sufficient to turn the scale * * * i. e. that the alleged fraud would not have been accomplished but for the misrepresentations made."

As noted above, the salesman who received the check testified that he did not know either the girl or appellant, and that he authorized the television set to be taken away in reliance upon the check. Under cross-examination, he stated that he had heard conversation between appellant and the girl to the effect that appellant was buying the set for the girl, but he was unable to say with certainty whose set it was going to be. If this had been all the testimony on the matter, it is conceivable, albeit improbable, that the jury might have concluded that the salesman had in fact relied on the girl's credit rather than on the check in releasing the set. In such case, the requested charge would have been proper.

But, as also noted above, our concern is with the degree to which the defense testimony took this issue out of the realm of permissible speculation. The girl was the only witness for the defense, and on her direct examination this colloquy occurred:

"Q. Now, who was going to get that television, you or Mr. Ciullo, do you recall? A. The television was for me.

"Q. I see. Now, what happened when you went inside the store? A. I looked for a television that I liked.

"Q. Did you find one that you liked? A.

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