U.S. v. White

• Citation: 611 F.2d 531
• Decision Date: 06 February 1980
• Docket Number: No. 79-5231,79-5231
• Parties: 5 Fed. R. Evid. Serv. 896 UNITED STATES of America, Plaintiff-Appellee, v. Charles Robert WHITE, Defendant-Appellant. Fifth Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 531

611 F.2d 531

5 Fed. R. Evid. Serv. 896

UNITED STATES of America, Plaintiff-Appellee, v. Charles Robert WHITE, Defendant-Appellant.

No. 79-5231.

United States Court of Appeals,Fifth Circuit.

Feb. 6, 1980.

Archibald J. Thomas, III, Asst. Federal Public Defender, Jacksonville, Fla., for defendant-appellant.

John E. Lawlor, III, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Appellant Charles Robert White was charged in a three-count indictment with possession of stolen mail, forgery, and uttering a check with a forged endorsement. After a jury trial, White was acquitted on the possession and uttering counts but was convicted on the forgery count under 18 U.S.C. § 495. ¹ White asserts four points of error on appeal: (1) the trial court erred in denying his motion for judgment of acquittal because the government failed to prove territorial jurisdiction and venue; (2) the trial court erred in failing specifically to instruct the jury on territorial jurisdiction and venue; (3) the trial court erred in admitting a government claim form into evidence over his hearsay objection; and (4) the trial court erred in denying his motion for acquittal because there was insufficient evidence of intent to defraud. After careful consideration of each claim, we affirm the conviction.

The subject of the three-count indictment was a Social Security check for $373.80 issued by the Treasury Department to Knut S. Amland. One of the trial exhibits, a certificate of mailing, indicated that the check described in the indictment was mailed from Birmingham, Alabama on April 29, 1976 to 2069 Broward Road in Jacksonville, Florida. Katherine Hess, who lived with the payee of the check at 2069 Broward Road, Jacksonville at the time of the alleged mail theft and forgery, testified that the check was never received at the payee's address, that to her knowledge no one was authorized to negotiate checks for the payee, and that neither she nor the payee knew White. She authenticated a Treasury claim form she prepared at the payee's direction on which the payee declared that he never received the check or authorized anyone to negotiate it. The form was admitted into evidence over objection upon a showing that the payee was deceased.

The government's handwriting expert testified that White endorsed the check in the payee's name and that similarities existed between White's handwriting exemplars and the deposit slip used to cash the check. The handwriting expert also testified that at the time White endorsed the check he was in the same physical condition as he was when he gave the handwriting exemplars sober.

Bank employee Greg Mattox testified that the check was negotiated at the San Jose office of the Barnett Bank on May 5, 1979, but that he had no knowledge of the identity of the person who presented the check for payment. Mattox testified that the check was partly deposited into the account of David Henry Dyal and partly cashed.

A fingerprint expert testified that he examined the check for fingerprints and found five identifiable prints. He testified that each fingerprint was made by David Dyal.

Dr. Sall, a psychiatrist, testified that if White's description of his condition when he allegedly signed the check was true, it was possible that White's mind was not capable of forming the specific intent to defraud, and it was also possible that White did not in fact form the specific intent to defraud. Dr. Sall's opinion testimony was based on an interview with White in which White told Dr. Sall that he had virtually no memory of the events surrounding the signing of the check, that he was drinking heavily at the time, and that all of the information he gave Dr. Sall was based on what others had told him.

At the close of the Government's case-in-chief, White moved for acquittal, asserting, among other things, that the Government failed to show that the forgery occurred within the Middle District of Florida and the evidence failed to establish intent to defraud. The motion was denied. White moved for a judgment of acquittal on the same grounds after completion of his case. After the jury verdict he again moved for a judgment of acquittal on the basis of an insufficient showing of proper venue and the motion was denied.

The Territorial Jurisdiction and Venue Claims

White's first contention on appeal is that the trial court erred in denying his motion for judgment of acquittal because the Government failed to produce sufficient evidence of territorial jurisdiction and proper venue. We disagree.

The right of a criminal defendant to be tried in the district in which the crime was committed is guaranteed by the sixth amendment ² to and Article III ³ of the United States Constitution, and Rule 18 of the Federal Rules of Criminal Procedure. ⁴ Although the Supreme Court has made it clear that questions of venue and territorial jurisdiction are not to be taken lightly or treated as mere technicalities, United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958); United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944), and the burden of proving that the crime occurred in the district of trial is squarely on the prosecution, United States v. Luton, 486 F.2d 1021, 1022-23 (5th Cir. 1973), Cert. denied, 417 U.S. 920, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974), the prosecution is not required to meet the reasonable doubt standard applicable to all substantive elements of an offense. Rather, "(t)he prosecution need only show by a preponderance of the evidence that the trial is in the same district as the criminal offense. . . . Further, there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid." United States v. Turner, 586 F.2d 395, 397 (5th Cir. 1978), Cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979). If the Government shows by a preponderance of the evidence that the crime was committed in the trial district, both territorial jurisdiction and proper venue are established. United States v. Luton, 486 F.2d at 1022-23; Cauley v. United States, 355 F.2d 175, 176 (5th Cir.), Cert. denied, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966). The question for this court, then, is whether, viewing the evidence in the light most favorable to the Government and making all reasonable inferences and credibility choices in favor of the jury verdict, United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Wieschenberg, 604 F.2d 326, 330 (5th Cir. 1979), the Government proved by a preponderance of the evidence that the forgery occurred within the Middle District of Florida.

At the close of the Government's case-in-chief, the following evidence was before the jury: (1) the Government check was mailed to Jacksonville, Florida on April 29, 1976, and the payee lived at the address printed on the check during April and May of 1976; (2) the check was never received by the payee or his housekeeper, the only persons living at the address printed on the check; (3) the check was cashed at the Barnett Bank of San Jose, in Jacksonville, Florida on May 5, 1976; (4) the deposit documents showed that David Dyal, whose fingerprints appeared on the check, lived in Jacksonville, Florida; (5) White was acquainted with Dyal; and (6) the endorsement was in White's handwriting.

If these were the only facts we could consider on appeal, the question of sufficiency of evidence of jurisdiction and venue would be a close one. We do not need to reach that issue, however, because after the Government rested its case, White presented hearsay evidence which placed White, Dyal, Hess, and the check in a motel room in Jacksonville.

White's major defensive theory at trial was that he could not have and did not form the specific intent to defraud, an essential element of the offense of forgery. After the Government rested its case, White elicited hearsay testimony from two witnesses, each of whom had interviewed David Dyal, in an attempt to support this defensive theory. Both witnesses testified that David Dyal said that Dyal, White and two other males met Katherine Hess at a bar in Jacksonville where they were drinking heavily. Dyal told each witness that the group then moved to a motel across town, ⁵ where they proceeded to "party" all night. Dyal told each of the witnesses that the Social Security check fell out of Hess' purse and that Dyal picked it up off the floor, looked at it and put it on a table. Each witness testified that Dyal said White was drunk that night and that Dyal did not see White in possession of the check. Though neither witness specified the date on which the alleged motel incident occurred, we think that in light of White's drunkenness theory on the issue of intent, the jury could properly infer that the motel incident and the signing of the check occurred within a very short period of time. Though Dyal never said that White came in contact with the check in any way, Dyal's statements nevertheless placed White in the same room with the check in Jacksonville. Viewed in that light, Dyal's hearsay statements provided significant support for the Government's claim that White signed the check in Jacksonville.

White contends that his conviction must be reversed unless sufficient evidence of territorial jurisdiction and venue appears in the Government's case-in-chief. Under the "waiver doctrine," however, a defendant's decision to present evidence in his behalf following denial of his motion for a judgment of acquittal made at the conclusion of the Government's evidence operates as a waiver of his objection to the denial of his motion. United States v. Evans, 572 F.2d 455, 479 (...