U.S. v. Rosario, 96-5286

• Decision Date: 10 July 1997
• Docket Number: No. 96-5286,96-5286
• Citation: 118 F.3d 160
• Parties: UNITED STATES of America v. Altigraci ROSARIO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 160

118 F.3d 160

UNITED STATES of America v. Altigraci ROSARIO, Appellant.

No. 96-5286.

United States Court of Appeals, Third Circuit.

Argued Jan. 23, 1997.

Decided July 10, 1997.

Michael V. Gilberti, Jr. (Argued), Bennett & Leahey, Red Bank, NJ, for Appellant.

Kevin McNulty, Office of the United States Attorney, Newark, NJ, Andrew O. Schiff (Argued), Office of the United States Attorney, Trenton, NJ, for Appellee.

Before: NYGAARD and LEWIS, Circuit Judges, and COHILL, ^* District Judge.

OPINION OF THE COURT

LEWIS, Circuit Judge.

Altigraci Rosario challenges her conviction on two counts of passing United States Treasury checks in violation of 18 U.S.C. § 510(a). Of primary importance on appeal is Rosario's challenge to the sufficiency of the evidence with regard to Count 1 of the indictment. We must decide whether a conviction for passing a treasury check can be sustained based solely on evidence establishing that the defendant possessed the check and that it was "probable" that the defendant had signed the check. We conclude that it can and will affirm.

I.

Altigraci Rosario operated a tax preparation service in Hightstown, New Jersey. Jose Rios, Rosario's nephew by marriage, was employed by Rosario and assisted with her tax preparation service. In February 1993, the U.S. Treasury Department mailed a Treasury check to Angel and Ana Andrade in the amount of $2,996.00. Soon thereafter, the Andrades filed a complaint with the Treasury Department alleging that they had not received the check.

On January 11, 1994, the New Jersey National/ Corestates Bank notified the U.S. Secret Service that Jose Rios had deposited the Andrade check into his account at the bank. That same day, the Secret Service interviewed Rios. During the interview, Rios stated that Rosario had given him the signed check and asked him to cash it. Rios apparently received a $20 fee for executing the transaction.

In September 1993, the U.S. Treasury Department mailed a tax refund check to Ivan Vitiello in the amount of $1,943.03. Subsequently, Vitiello filed a complaint with the Treasury Department alleging that he had not received the check. In his complaint, Vitiello identified Altigraci Rosario as his tax preparer. Vitiello stated that he had authorized Rosario to have the check delivered to her post office box, but he had not authorized her to cash the check.

On May 4, 1994, a U.S. Postal Inspector confirmed that Vitiello's check had been delivered to a post office box registered to Altigraci Rosario and Jose Rios. That same day, the Vitiello check was cashed at Reed's Garage in Cranbury, New Jersey. Employees of Reed's Garage informed the government that Rosario and Rios had cashed the Vitiello check. Sometime later, the government identified Rosario's fingerprint on the check.

On November 18, 1994, the government filed a two-count misdemeanor complaint against Rosario, charging her with negotiating two checks bearing forged endorsements in violation of 18 U.S.C. § 510(a) and § 510(c). Count 1 of the indictment related to the Andrade check and Count 2 related to the Vitiello check. After a one-day jury trial, Rosario was convicted on both counts. ¹

At trial, Angel and Ana Andrade testified that they had never met Rosario, used her service or authorized her or anyone else to endorse their check. Rios, the prosecution's chief witness, testified that Rosario had given him the Andrade check, which had been endorsed, along with a form of identification of the payee. Rosario asked Rios to cash the check, informing him that the payee did not have a bank account and therefore could not cash the check. (Apparently, Rios had a substantial amount of cash in a safe in the office due to a $20,000 personal injury settlement.)

Rios further testified that he had not met the persons whom Rosario told him had given her the check. Indeed, Rios stated that he "didn't even see the people." App. at 47A. According to Rios, he took the Andrade check from Rosario, photocopied the identification and gave Rosario the cash, less a $20 fee. Rios stated that he did not actually see Rosario hand the cash over to any person who might be associated with the check, but that he did see her "talking to someone." App. at 49A.

Finally, Rios testified that after the bank informed him that the Andrade check had been reported stolen, he looked for the photocopy that he had made of the identification but could not find it. When he informed Rosario about the check, Rios acknowledged that she seemed "genuinely surprised" that the check had been reported stolen. App. at 54A.

The government supplemented the testimony of Rios with the testimony of a handwriting expert, Secret Service document examiner Jeffrey Taylor. After comparing the signature for Ana Andrade that appeared on the check with a known sample of Rosario's handwriting, Taylor testified that Rosario "probably" had forged the check herself--that is, it was "more likely than not" that she had done so. Essentially, the testimony of Rios, Taylor and the Andrades constituted the entirety of the government's case on Count 1 of the indictment.

After the jury rendered its verdict, Rosario filed a Rule 29 motion for judgment of acquittal on Count 1 with the magistrate judge, arguing, inter alia, that the evidence was insufficient to sustain a conviction. ² The magistrate judge denied Rosario's post-trial motions. See United States v. Rosario, Crim. No. 94-5050K-01 (D.N.J. May 9, 1995). ³ On June 2, 1995, the magistrate judge sentenced Rosario to eight months in prison on both counts to be served concurrently. ⁴ At the time of sentencing, Rosario was already serving a one-year sentence for an unrelated bribery conviction.

Rosario then appealed the magistrate judge's decision to the district court pursuant to 18 U.S.C. § 3402. ⁵ The district court affirmed Rosario's conviction and sentence in all respects. See United States v. Rosario, Crim. No. 96-277(D.N.J. April 3, 1996). On this appeal, Rosario's primary challenge to her conviction is that the evidence offered at trial was insufficient to support the jury's conviction on Count 1. ⁶

The district court had jurisdiction over the criminal proceedings pursuant to 18 U.S.C. § 3231. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

II.

Our review of a sufficiency of the evidence challenge is guided by strict principles of deference to a jury's verdict. United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 613, 136 L.Ed.2d 537 (1996). We must view the evidence in the light most favorable to the government and must sustain a jury's verdict if "a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses." United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir.1991). Accordingly, "[a] claim of insufficiency of the evidence places a very heavy burden on the appellant." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.1995).

Rosario was convicted of check forgery under 18 U.S.C. § 510(a)(2), which provides:

(a) Whoever, with intent to defraud--

....

(2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature;

shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 510(a)(2).

At trial, the magistrate instructed the jury that, under the statute, the government was required to prove the following elements beyond a reasonable doubt:

(1) that the defendant passed or attempted to pass a U.S. Treasury check,

(2) that the check bore a forged or falsely made endorsement,

(3) that the defendant passed the check with intent to defraud, and

(4) that the defendant acted knowingly and willfully.

Rosario, Crim. No. 94-5050K-01, slip op. at 7.

Rosario contends that the government failed to meet its burden on elements (2), (3) & (4). Specifically, she argues that Rios's testimony establishing that she possessed the check was insufficient to corroborate the testimony of the handwriting expert that she probably forged the check.

As noted earlier, Taylor testified that it was "probable" that Rosario had forged the check. "Probable" is a term of art used by Secret Service document examiners. The "probable" category falls exactly in the middle of the six-point spectrum between "positive identification" and "positive elimination." Thus, handwriting experts will use the term "probable" to describe

times when the evidence falls considerably short of the "virtually certain" category and yet still points rather strongly toward the suspect, i.e., there are several significant similarities present between the questioned and known writings, but there are also a number of irreconcilable differences and the examiner suspects that they are due to some factor but cannot safely attribute the lack of agreement to the effect of that factor.

Thomas V. Alexander, Definition of Handwriting Opinions, App. at 37A.

The government concedes that Taylor's testimony alone would be insufficient to sustain a conviction under § 510(a). The government argues, however, that Taylor's testimony that Rosario probably forged the check, coupled with Rios's testimony that Rosario had given him the check, would allow the jury to make the inference that Rosario had forged the check. Moreover, according to the government, once the jury concluded that Rosario had forged the check, it could logically conclude that she had done so knowingly and willfully and with intent to defraud. We agree. By establishing that Rosario possessed the check, and thus had the opportunity to forge it, the government provided validation for Taylor's testimony that Rosario had probably forged the check. ⁷

In reaching this conclusion, we are persuaded by the reasoning put forth in United States v. Richardson, 755 F.2d 685 (8th...