Tafoya v. United States

• Citation: 386 F.2d 537
• Decision Date: 11 December 1967
• Docket Number: No. 9652.,9652.
• Parties: Nestor A. TAFOYA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

386 F.2d 537 (1967)

Nestor A. TAFOYA, Appellant, v. UNITED STATES of America, Appellee.

No. 9652.

United States Court of Appeals Tenth Circuit.

December 11, 1967.

Karl W. Friedel, Wichita, Kan., for appellant.

Richard T. Spriggs, Asst. U. S. Atty., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., with him on brief), for appellee.

Before WOODBURY,^* LEWIS and HICKEY, Circuit Judges.

PER CURIAM.

Tafoya appeals from a judgment and sentence entered after a jury found him guilty of intending to defraud by passing, uttering and publishing a forged and counterfeited United States Postal Money Order in violation of 18 U.S.C. § 500. For the reasons stated below, we affirm.

The government's evidence showed the United States Postal Money Order here involved was stolen in blank in a burglary of a United States Post Office. The evidence also showed the appellant was apprehended in the act of attempting to pass the money order to a grocery store by forging the endorsement of one Willie Gonzales. Gonzales testified he did not affix his signature to the money order, nor was the signature which was there in his handwriting. In addition, two witnesses identified appellant as the person who presented the forged money order to them for payment. This evidence was sufficient to support the conviction.

Appellant contends he was denied a fair and impartial trial in three respects. First, appellant assigns as error the court's sustaining of an objection to appellant's attempt to impeach a government witness by showing the witness had previously been "picked up by the police and charged." It is clear that only previous convictions, and not previous acts of misconduct which do not result in conviction, may be used to impeach a witnesses' credibility. Ramirez v. United States, 294 F.2d 277, 284 (9th Cir. 1961); Pearson v. United States, 192 F.2d 681, 699 (6th Cir. 1951); 3 Wigmore on Evidence § 980(a) (3rd Ed.1940). Second, appellant contends he was prejudiced by remarks the court made to the jury regarding recesses and delays. We have examined the court's remarks and find no prejudice resulting to appellant. The remarks consisted of the admonitions and instructions usually given when matters are to be handled outside the presence of the jury. Rather than prejudice the appellant, the remarks served to protect the appellant from prejudice. Third, Tafoya complains of the court's instructing the jury "it was not necessary that the proof establish with certainty the exact date of the alleged offense" but was "sufficient if the evidence showed beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in the indictment." This instruction is set forth in 27 F.R.D. 39, Jury Instructions and Forms 5.02 (1961); there was no error in using it.

It is contended the United States Commissioner violated the Eighth Amendment by requiring a surety or cash bond in the amount of $1,500.00 and the District Court erred in refusing to modify that condition by allowing appellant to execute an unsecured bond and pay a ten per cent deposit thereon. The Commissioner stated as the reasons for requiring a surety bond that appellant had only recently been discharged from a penitentiary after serving eight years; that appellant was...