U.S. v. Spaar, 83-2718

• Decision Date: 15 November 1984
• Docket Number: No. 83-2718,83-2718
• Citation: 748 F.2d 1249
• Parties: UNITED STATES of America, Appellee, v. Raymond Lester SPAAR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1249

748 F.2d 1249

UNITED STATES of America, Appellee, v. Raymond Lester SPAAR, Appellant.

No. 83-2718.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 8, 1984.

Decided Nov. 15, 1984.

Daniel R. Moen, Aberdeen, S.D., for appellant.

Raymond P. Murley, Sioux Falls, S.D., for appellee.

Before ARNOLD, FAGG and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

In February 1981, Raylene Preszler filed for an income tax refund. In May 1981, Raymond Spaar and Preszler began living together in her apartment. During the course of their relationship, only Preszler was employed.

On or about May 22, 1981 the Internal Revenue Service (IRS) mailed Preszler a Treasury check in the amount of $358.47 as a tax refund. Preszler never received the check. In response to Preszler's inquiries, the IRS informed her that the check had been mailed. Preszler requested that the IRS trace the check.

On June 3, 1981, Spaar appeared at Preszler's bank in Aberdeen, South Dakota with the Treasury check in question. The check was endorsed on the reverse side "Raylene Preszler" and beneath that endorsement was the signature "Ray L. Spaar." See Exhibit No. 3. Spaar deposited $45 into Preszler's checking account and took the remaining $313.47 in cash.

In September 1981, Preszler terminated her relationship with Spaar when she discovered that Spaar had been using her apartment to meet with another woman. In October 1981, the trace on the Treasury check was completed and the Secret Service began a criminal investigation. Spaar was indicted on February 15, 1983 on one count of forgery and one count of uttering a forged instrument under 18 U.S.C. Sec. 495.

At trial Spaar claimed that Preszler had given him the Treasury check already signed, and had told him to deposit $45 in her checking account and to get the remainder in cash. He admitted signing his name beneath Preszler's endorsement and cashing the check at the bank. At trial Spaar's attorney intimated that Preszler caused the forgery charge to be brought against Spaar to seek revenge because she felt "used." Trial transcript at 19-20, 24, 26-27. Preszler testified that she never received or signed the check, and that she never authorized Spaar to sign it for her or to cash it.

The prosecution presented three Secret Service agents as witnesses: an agent who had interviewed Spaar while investigating the missing check, a fingerprint specialist, and a handwriting expert. The first agent, Eugene Heller, testified that in August 1982, approximately one year after the forgery occurred, he questioned Spaar about the check and Spaar denied having any knowledge of it. Spaar admitted at trial that he lied to Agent Heller about the check, but claimed that he did so because he had a criminal record and was afraid that if he admitted anything he might get in trouble.

The fingerprint specialist, Robert Ball, testified that he identified Spaar's fingerprint on the back of the Treasury check. The handwriting expert, Thomas Smith, testified that in his opinion, the signature of Preszler on the Treasury check had been traced. He explained that the "Raylene Preszler" signature had all the signs of a tracing: heavy and deliberate strokes, blunt beginning and ending strokes, and a shaky quality throughout, while genuine signatures, in contrast, are smoothly and freely written. He could not say who did the tracing. On cross-examination he admitted that illness or intoxication might also affect an individual's handwriting.

The jury returned a verdict of guilty on both the forgery count and the uttering a forged instrument count. The District Court sentenced Spaar to two years imprisonment on the forgery count and to a consecutive two and a half year probation period on the uttering count.

Spaar appeals from his conviction on both counts. For reversal, Spaar argues that the District Court ¹ erred in denying his motion for a directed verdict of acquittal and in refusing to ask the jury panel on voir dire certain questions he had requested. We affirm.

I.

Spaar contends that the District Court erred in denying his motion for acquittal because the government presented no evidence showing that Spaar wrote Preszler's signature on the Treasury check. In reviewing denials of motions for acquittal, this Court has applied the following test:

A motion for acquittal should be granted only where 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. Brim, 630 F.2d 1307, 1311 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981).

Additionally, in reviewing the sufficiency of the evidence the Court must resolve all conflicts in favor of the jury verdict, Klein v. United States, 728 F.2d 1074, 1075 (8th Cir.1984), and must accept all reasonable inferences which tend to support the verdict, United States v. Wells, 721 F.2d 1160, 1161 (8th Cir.1983).

In the present case, the act of writing Preszler's endorsement on the back of the Treasury check was clearly an essential element of the forgery charge. Spaar contends that since the handwriting expert could not positively identify him as the person who traced the signature and since no other witness specifically identified him as the forger, the evidence was insufficient to prove that he signed Ms. Preszler's name.

Although there is no direct evidence of Spaar's forgery, there is ample circumstantial evidence from which the jury reasonably could have inferred that Spaar wrote Preszler's signature on the check. Preszler testified that she never saw or signed the check, and the handwriting expert stated that the signature was probably traced. Since Spaar lived with Preszler at the time the check was mailed and had access to her mail, the jury could reasonably have found that Spaar intercepted the check and traced Preszler's signature on it. Spaar admitted signing his own name to and cashing the check. His fingerprint was found on it. Spaar had a clear monetary motive for the forgery. In addition, the jury reasonably might have taken into consideration the fact that Spaar initially denied any knowledge of the check to Heller, but later admitted that he cashed it. "Circumstantial evidence is 'intrinsically as probative as direct evidence' and may be the sole support for a conviction." Klein v. United States, 728 F.2d at 1075 (quoting United States v. Two Eagle, 633 F.2d 93, 97 (8th Cir.1980)).

The government has shown facts from which a reasonable jury could infer that Spaar took the check from Preszler's mail sometime after May 22, 1981, had possession of it until he cashed it on June 3, 1981, and traced Preszler's signature during that time. Although Spaar claimed that Preszler had given him the Treasury check already signed, Preszler denies that she ever saw the check. The jury could reasonably have believed that the check had no signature on it when Spaar received it. There is no suggestion in the evidence that the check ever left Spaar's possession so that someone else could have signed it. We hold that the District Court did not err in denying Spaar's motion for acquittal.

II.

Spaar also contends that the District Court committed reversible error by refusing to ask the prospective jurors certain voir dire questions he proposed. Spaar's attorney had requested that the court ask the following questions:

Are you or any of your immediate family or close friends connected in any way with any state, federal, or other law enforcement agency, such as a sheriff's or police office, the FBI, or a state's attorney's office? Have you or any of your immediate family or friends ever been connected with any such law enforcement agencies?

Do you feel that the testimony of an FBI agent, or treasury agent, or any other law enforcement officer is entitled to any more credence than that of other witnesses merely because he is a law enforcement officer? Is there any reason why you would feel unable to keep a completely open mind and give the testimony of such officer the same type of consideration in accordance with the Court's instructions as you would give to the testimony of other witnesses, and no more?

Designated Record at 4. The District Court denied the request, and the record is silent on why it was denied. Spaar now argues that the court's refusal to ask these questions impaired his ability to select an impartial jury and is reversible error.

Voir dire plays a critical role in assuring criminal defendants that their Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge cannot fulfill his responsibility to remove prospective jurors who may...