U.S. v. Brackenridge, 78-2808
| Decision Date | 06 February 1979 |
| Docket Number | No. 78-2808,78-2808 |
| Citation | 590 F.2d 810 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Josie Mae BRACKENRIDGE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Judith A. Clarke (argued), San Diego, Cal., for defendant-appellant.
Bruce R. Castetter, Asst. U. S. Atty. San Diego, Cal., (on th brief), Michael H. Walsh, U.S. Atty., Bruce R. Castetter, Asst. U.S. Atty. (argued), San Diego, Cal., plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before BROWNING and ANDERSON, Circuit Judges, and CLAIBORNE *, District Judge.
Appellant was hired by Celia Marfone as a part-time nurse to care for Mrs. Marfone's sick husband. The Marfones had recently moved to San Diego from Philadelphia, where they maintained savings accounts at Western Savings Bank and at Philadelphia Savings Fund Society. A week after appellant was hired, Mrs. Marfone discovered that her bank book had been taken from her purse and that a withdrawal had been made on at least one of the accounts.
About the same time, appellant opened accounts at California First Bank with a $14,000 check drawn on the Marfones' Western Savings account and a $2,500 check drawn on the Philadelphia Savings account. The checks had been procured by withdrawal letters bearing Mrs. Marfone's forged signature and instructing the banks to send the checks to a National City address at which appellant operated a boutique. Appellant was charged with mail fraud in violation of 18 U.S.C. § 1341 and using a false and fictitious name in a scheme to defraud in violation of 18 U.S.C. § 1342. A jury found her guilty. We affirm.
Appellant argues that the evidence was not sufficient to permit the jury to conclude that the mails had been used to get the $2500 Philadelphia Savings Fund Society check to appellant. The check was initialed by an employee of the Society's bank-by-mail department. Testimony from the manager of that department established that routine custom and practice for handling cross-country withdrawal requests would result in a mailing. That is adequate circumstantial evidence to support the inference that the check cashed by appellant in this case was mailed. Direct proof of mailing was not required. See United States v. Joyce, 499 F.2d 9, 15 (7th Cir. 1974); United States v. Fassoulis, 445 F.2d 13, 17 (2d Cir. 1971). See also Stevens v. United States, 306 F.2d 834, 835 (5th Cir. 1962).
Appellant also contends that her trial counsel was ineffective for failing to move for a judgment of acquittal at the close of the prosecution's case-in-chief...
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...evidence of routine custom and practice can be sufficient to support the inference that an item is mailed. United States v. Brackenridge, 590 F.2d 810, 811 (9th Cir.), cert. denied, 440 U.S. 985 (1979). Although Appellants contend that the Government failed to provide proof of each mailing,......
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