U.S. v. Lonsdale

• Citation: 577 F.2d 923
• Decision Date: 01 August 1978
• Docket Number: No. 77-5540,77-5540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Guy LONSDALE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 923

577 F.2d 923

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Guy LONSDALE, Defendant-Appellant.

No. 77-5540.

United States Court of Appeals, Fifth Circuit.

Aug. 1, 1978.

Samuel W. Bearman (Court Appointed), Pensacola, Fla., for defendant-appellant.

Emory O. Williams, Jr., Asst. U. S. Atty., Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

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

Before COWEN ^*, U. S. Court of Claims; GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

Appellant Lonsdale was charged with unlawfully uttering a United States Treasury check in violation of 18 U.S.C. § 495. ¹ He was convicted by a jury and sentenced to two years imprisonment. Lonsdale's only contention of appeal is that the district court erred in denying his motion for a judgment of acquittal at the close of the evidence. We agree with Lonsdale that there was insufficient evidence of his guilt to submit the case to the jury. Appellant's conviction must therefore be reversed.

I.

On February 28, 1974, a United States Treasury check in the amount of $207.00 was issued to Gary F. Malunao as his salary for service with the United States Navy. On March 6, 1974, the check was cashed at the West Pensacola Bank, located on the Navy base at which both Malunao and Lonsdale were stationed. The check was endorsed with the names "Gary F. Malunao" and "Jeffrey G. Lonsdeale", ² and Lonsdale's Social Security number appeared after the "Lonsdeale" endorsement. Appellant's thumbprint was found on the check. Three years after the check was cashed, Lonsdale was arrested and charged with uttering a stolen check. He was tried and convicted on August 1, 1977.

The government's evidence at trial was entirely circumstantial. First, Malunao testified that he had neither signed nor negotiated the check. Second, the government introduced evidence of Lonsdale's conduct subsequent to an interview between Lonsdale and a bank officer concerning the endorsement. During the interview Lonsdale was alerted to the fact that his name appeared on the check and that he was under suspicion, and shortly thereafter Lonsdale reported to Navy authorities that his military identification card was missing. A government handwriting expert also testified at trial. On direct examination he stated that the second endorsement may have been "written in a distorted fashion." He admitted on cross-examination, however, that there were "actually no similarities of any consequence" between appellant Lonsdale's handwriting and the "Jeffrey G Lonsdeale" endorsement on the check. Finally, a fingerprint expert testified that defendant Lonsdale's left thumb print matched a latent print lifted from the back of the check.

This was all the evidence introduced against Lonsdale. Significantly the bank teller who accepted the stolen check could not identify appellant as the person who cashed it. Lonsdale took the witness stand and denied having cashed the check.

II.

In evaluating the sufficiency of this evidence to support the conviction, we must, of course, view the evidence in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Rojas, 537 F.2d 216, 220 (5th Cir. 1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). The test of the sufficiency of proof on a motion for judgment of acquittal, and on review of the denial of such a motion, is whether the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the accused's innocence. United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973). See United States v. Rojas, supra, 537 F.2d at 220. A trial judge should not permit a case to go to the jury if the evidence is so scant that the jury could only speculate or conjecture as to the defendant's guilt, and "a motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged." United States v. Stephenson, supra, 474 F.2d at 1355 (emphasis in original). See United States v. Haggins, 545 F.2d 1009, 1012 (5th Cir. 1977); United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977).

III.

This case summons us to apply the principle that the government must prove a defendant guilty beyond a reasonable doubt. In most instances the jury conscientiously discharges its duty of judging the guilt or innocence of the accused. The parade of convicted defendants who pass ceaselessly before this court and whose convictions are justifiably affirmed bears tribute to the judgment of citizens who serve on juries. We are ever mindful of the leavening influence of juries and of their concomitant compassion. But while we salute the wisdom of placing the jury at the heart of our criminal justice system, we must not forget the importance of our own role in that system as a reviewing court or becomes callous in our application of the fundamental principle that the government must prove a defendant guilty beyond a reasonable doubt.

Evaluating the evidence proffered by the government in this case with these principles and standards in mind, we are convinced that appellant's conviction must be reversed We are unable to accord much weight to the presence of appellant's name on the back of the check. It is, of course, clear that someone endorsed the check with Lonsdale's name. The government apparently argues, however, that the jury was entitled to conclude from an examination of the check that Lonsdale signed the endorsement. Insofar as handwriting analysis might bear on that question, the government's evidence was weak indeed. The government's own expert testified that "there are actually no similarities of any consequence" between the "Jeffrey G. Lonsdeale" endorsement and appellant's handwriting. The government emphasizes the expert's testimony that the endorsement may have been written in a distorted fashion. This testimony, however, proves only that whoever forged the signatures may have tried to disguise his writing. The necessary connection between the handwriting of this person and that of appellant is nowhere supplied by the evidence. ³

The fact that Lonsdale reported his identification card as missing only after he was questioned concerning the forged check likewise fails to prove any fact crucial to the prosecution's case. Appellant testified that he had noticed the card was not in his wallet only a week before he was questioned by bank representatives and did not look for the card until after the questioning because he was sure that it was merely misplaced. He further testified that he did not need the card until the next pay day. Assuming, as we must, that the jury disbelieved this story, the most that could be inferred from the testimony concerning the identification card is that Lonsdale had the card in his possession for the entire period. This might well be crucial were there evidence that Lonsdale's identification card was used by the person who cashed the check. ⁴ Here, however, the government introduced no testimony that the card was actually used for this purpose. Since many individuals on the base would have had access to Lonsdale's social security number, the conclusion that Lonsdale had the card in his possession is of only slight significance on the ultimate question of guilt.

The only truly damning evidence introduced by the government was, therefore, Lonsdale's fingerprint on the check. The check was issued to Malunao on February 28, 1974 and cashed on March 6. The record is silent concerning the location of the check at any point in time between these two dates. No circumstantial evidence was introduced tending to show that Lonsdale's fingerprint must have been left on the check during the course of uttering it. ⁵ Yet the government bears the burden of proving that Lonsdale uttered the check, not that he touched it. There are a potential multitude of manual manipulations involving the check which would explain the presence of defendant's fingerprints. Lonsdale's having touched the check is highly probative of his having uttered it only to the extent that the government is able to demonstrate that Lonsdale could not reasonably have handled it at any time other than in the course of committing the charged offense.

The D.C. Circuit has had occasion in Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967), to address the sufficiency of fingerprint evidence on a motion for acquittal in similar circumstances. In that case valuable coins stored in glass jars were stolen from the complainant's home. Four of Borum's fingerprints were subsequently found on two of the empty jars left in the house. Further evidence placed Borum within a mile and half of the house two hours before the theft. The Borum court concluded that where the only link between the defendant and the crime is fingerprint evidence, the government must produce some further evidence which could support an inference that the fingerprints were left during the commission of the crime. In reversing Borum's conviction for insufficient evidence, the court noted that to

allow this conviction to stand would be to hold that anyone who touches anything which is found later at the scene of a crime may be convicted, provided he is within a mile and a half of the scene when the crime may have been committed.

127 U.S.App.D.C. at 50, 380 F.2d at 597. See also Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966).

Appellant maintains that this court has already adopted the Borum approach, citing United States v. Durham, 512 F.2d 1281 (5th Cir.), cert. denied, 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975), and United States v. Griffin, 483 F.2d 957 (5th Cir. 1973). We need not engage in post hoc...