U.S. v. Hall, 79-5513

• Decision Date: 10 December 1980
• Docket Number: No. 79-5513,79-5513
• Citation: 632 F.2d 500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reginald Antonion HALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 500

632 F.2d 500

UNITED STATES of America, Plaintiff-Appellee, v. Reginald Antonion HALL, Defendant-Appellant.

No. 79-5513.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 1980.

C. S. Williams, Jr., Fed. Public Defender, Pensacola, Fla., for defendant-appellant.

Samuel Ashe Alter, Jr., Asst. U.S. Atty., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.

HENDERSON, Circuit Judge:

Reginald Hall appeals his conviction and sentence for possession of a check stolen from the mail in violation of 18 U.S.C.A. § 1708 (1970). ¹ An indictment charging the appellant with one count of forgery and one count of possession of a stolen government check was returned by a grand jury in March, 1979. At the trial in August, 1979, the District Court for the Northern District of Florida entered a judgment of acquittal on the forgery count, ² but the jury returned a verdict of guilty on the possession count. On appeal Hall contends that the trial court erred in refusing to grant his motion for judgment of acquittal on the possession count based upon insufficiency of the evidence. We affirm the order of the district court.

The government charged Hall with fraudulently endorsing the stolen check with the payee's name and his own name as endorsee and then negotiating the instrument on or about December 1, 1975, at the Pleezing Market in Pensacola, Florida. Four witnesses were called by the government. Mrs. Hazel Carter, the intended recipient of the United States Treasury Check, testified that she regularly received a check, that she did not receive a check for December, 1975, and that she had authorized no one to receive and endorse the check for her. A cashier previously employed at the Pleezing Market for ten months including December, 1975, identified initials on the check as hers, indicating that she had cashed the check from her register. A Secret Service agent stated that he had taken handwriting exemplars from Hall which, in the opinion of a government handwriting expert witness, contained the same handwriting as that on the check. Other government evidence included a certification of the check's mailing and the original check, made out to Hazel Carter in the amount of $157.70 and endorsed with the name of "Hazel Carter" and the name of "Reginald Hall." Due to an illegible bank transit stamp on the check's reverse side, neither the dates of the check's negotiation nor bank clearance could be determined from the instrument itself. Ten handwriting exemplars provided by Hall and two handwriting comparison charts were also introduced by the government.

Hall denied ever possessing, fraudulently endorsing or negotiating the check. Hall elicited testimony that the cashier could not identify him. Neither the phone number, birth date, nor height listed on the check corresponded to Hall's. He could not remember whether he was in or out of jail in December, 1975.

The elements of proof necessary to establish the offense of unlawful possession of a check stolen from the mail in accordance with the provisions of 18 U.S.C.A. § 1708 are (1) the defendant possessed the check, (2) the item was stolen from the mail, (3) the defendant knew the instrument was stolen, and (4) the defendant specifically intended to possess the check unlawfully. United States v. Beecham, 582 F.2d 898, 910 (5th Cir. 1978) (en banc) cert. denied 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). The government's evidence may be conclusive factual proof of an element of the offense, or it may raise an inference of fact which will be taken as conclusive absent a showing to the contrary by the defendant. Some facts will serve both functions. The signature in his handwriting of the payee's name is an established fact attesting conclusively to a person's prior possession of the check. United States v. Singleton, 600 F.2d 553, 555 (5th Cir. 1979); United States v. Kimbrell, 487 F.2d 219, 221 (5th Cir. 1973). At the same time, the signature of the payee's name by one other than the payee creates the inference that the forger had the specific intent to use the check in a surreptitious, unlawful manner. United States v. Hawkins, 614 F.2d 85, 87 (5th Cir. 1980). Thus, proof of a person's fraudulent endorsement of the payee's name serves to ascertain both his possession and his intent. Recent cases from this circuit hold that from the same forged signature can be drawn the inference that the forger knew the check was stolen, thus satisfying a third element of the offense as well. Id.; United States v. Kimbrell, 487 F.2d at 221. See also, United States v. Lewis, 560 F.2d 901, 904 (8th Cir. 1977). To prove the fourth element, that the item was stolen from the mail, the government need only introduce a certification of mailing and testimony of the addressee that the check was never received. United States v. Duckett, 583 F.2d 1309, 1315 (5th Cir. 1978).

Challenges to the constitutionality of these inferences have been unsuccessful. Barnes v. United States, 412 U.S. 837, 841-46, 93 S.Ct. 2357, 2360-63, 37 L.Ed.2d 380, 385-87 (1973); United States v. Duckett, 583 F.2d at 1314-15. Inferences of intent and knowledge can be drawn from the fact of possession as proved by the fraudulent endorsement without offending the due process clause as long as it can "be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." ³ The government need not negate all other inferences that could arise from the proved fact. United States v. Singleton, 532 F.2d 199, 203 (2d Cir. 1976).

Hall raises three arguments on appeal. He attacks the sufficiency of government evidence respecting his knowledge that the check was stolen from the mail, the stolen character of the check, and the date of the offense. More significantly, however, he does not challenge the validity of expert testimony that the fraudulent endorsement of Hazel Carter's name matched handwriting exemplars taken from him by the Secret Service agent. Nor does he deny on appeal the fact of his possession of the check as proved by his handwriting on the back of the instrument. At the trial, Hall had the opportunity to offer evidence in opposition to the government's expert opinion and to impeach the expert's credibility. By failing to challenge the handwriting evidence, Hall permitted the government to make its case, even though he was able to cast doubt on his complicity with evidence that none of the personal information on the check was accurate and that the cashier to whom the check was negotiated could not identify him. Once the handwriting analyses established Hall's endorsement of Hazel Carter's name as a proved fact, the constitutionally permissible inferences that he knew the check was stolen and that he intended to use it unlawfully followed. ⁴ The inferences need reach no further. Evidence that Hall knew the check was stolen "from the mail" is not required to prove the unlawful possession offense. Barnes v. United States, 412 U.S. at 847, 93 S.Ct. at 2364, 37 L.Ed.2d at 388.

The appellant's contention that the government failed to prove the check was stolen from an authorized mail depository is also without merit. The prosecution introduced evidence that the check was mailed. Mrs. Carter testified that she never received the check which customarily came to her residence mailbox. This circuit has repeatedly held that evidence of due mailing and non-receipt is sufficient to show theft from the mails. ⁵ United States v. Duckett, 583 F.2d at 1315; United States v. Robinson, 545 F.2d 301, 303 (2d Cir. 1976); Smith v. United States, 343 F.2d 539, 544 (5th Cir.) cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965).

Finally, Hall argues that the government's failure to prove the alleged date hampered his ability to present an alibi. ⁶ The date of negotiation is not a necessary element of the crime, which is unlawful possession of the stolen check. Yet Hall does not dispute on appeal his possession of the check as demonstrated by the endorsement of the payee's name in what the expert believed to be Hall's handwriting. Variance in, or lack of, proof of the date of offense does not materially prejudice Hall's defense, which should be focused instead on challenging the government's proof of possession. Although the indictment charged that the offense took place on or about December 1, 1975, the jury could conclude that the evidence was sufficient, notwithstanding the government's inability to prove the date alleged, particularly where defense counsel had full opportunity to attack the lack of a precise date. United States v. Arteaga-Limones, 529 F.2d 1183, 1193-94 (5th Cir.) cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976). Simple variance between allegation and proof is harmless error as long as (1) the accused is definitely informed of the charges against him so that he can prepare a defense and will not be surprised by the evidence offered at trial, and (2) he is protected against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 630, 631, 79 L.Ed. 1314, 1318 (1935).

The disquieting aspect of this case is not the fragile framework of legal presumptions which were carefully constructed on the factual foundation of fraudulent endorsement of the payee's name. Prior cases have held these presumptions to be reasonable. Any concern can only stem from the fact that identification of the...