United States v. Davis, 20383.

• Decision Date: 10 December 1970
• Docket Number: No. 20383.,20383.
• Citation: 434 F.2d 1108
• Parties: UNITED STATES of America, Appellee, v. Alfonso DAVIS, a/k/a Alphonso Davis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

434 F.2d 1108 (1970)

UNITED STATES of America, Appellee, v. Alfonso DAVIS, a/k/a Alphonso Davis, Appellant.

No. 20383.

United States Court of Appeals, Eighth Circuit.

December 10, 1970.

Jerry C. Estes, Fort Dodge, Iowa, for appellant.

Dennis D. Meridith, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before MATTHES, Chief Judge, LAY, Circuit Judge, and REGISTER, Chief District Judge.

MATTHES, Chief Judge.

Alfonso Davis was charged by indictment and found guilty by a jury of violating 18 U.S.C. §§ 2 and 2314.¹ More precisely, the indictment alleged that appellant, with unlawful and fraudulent intent, caused to be transported in interstate commerce from Webster City, Iowa to Dallas, Texas a forged money order in the amount of $100, knowing that it had been falsely made and forged.

Davis has appealed from the judgment of conviction.² The only substantial question for decision is whether a submissible case was made. Appellant contends that the evidence was insufficient as a matter of law to warrant the jury in finding that he had any connection with the movement of the money order in interstate commerce. From this premise, he argues that the district court erred in failing to grant his motion for judgment of acquittal.

In ruling the issue at hand, we take notice of the controlling law. Section 2314 requires transportation in interstate commerce of a forged security with fraudulent intent, and knowledge that such security was forged. Hulsey v. United States, 369 F.2d 284, 287 (5th Cir. 1966); see also Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L. Ed. 435 (1954); Amer v. United States, 367 F.2d 803, 804 (8th Cir. 1966). In the language of Judge, now Justice Blackmun, "it is not necessary that it be shown that this transportation was effected by the defendant personally. It is enough if the evidence justifies a conclusion that he was a motivating force in the transportation. (Citing cases). And, of course, 18 U.S.C. § 2 assures this." (Citing cases). Thogmartin v. United States, 313 F.2d 589, 594 (8th Cir. 1963); see also Hall v. United States, 372 F.2d 603, 604 n. 1 (8th Cir.), cert. denied, 387 U.S. 923, 87 S.Ct. 2040, 18 L.Ed.2d 979 (1967). In determining whether a submissible case was made, we are required to review the evidence most favorable to the verdict and accord to the Government the benefit of all inferences which reasonably may be drawn in its favor. Kirschbaum v. United States, 407 F.2d 562 (8th Cir. 1969); Thogmartin v. United States, supra.

So tested, we have no difficulty in concluding that the evidence presented an issue of fact and that the conviction finds support in the record.

The salient facts are: In December of 1969, 183 blank money orders drawn on the Republic National Bank of Dallas, Texas and bearing serial numbers 12217318 through XXXXXXXXX were stolen at gunpoint by a Negro male from the manager of a supermarket in Minneapolis, Minnesota. The manager made an in-court identification of appellant as the party who committed the robbery. It should be noted, however, that upon cross-examination he equivocated slightly as to the identity, but concluded he was reasonably sure that appellant was the holdup man.

The scene then shifts to Webster City, Iowa. Mrs. Lockwood, who was a cashier at Gibson's Discount Store in that city, testified that on the evening of January 3, 1969 she accepted the money order in the amount of $100, which is the subject of this prosecution. It bore No. 12217367, was payable to Perry H. Jenks, and the name of the sender was Marry Ann Jenk. It is undisputed that this instrument was one of those stolen from the supermarket. It was tendered to Mrs. Lockwood in payment of approximately $5.00 worth of merchandise by a Negro male, about six feet in height and weighing about 200 pounds. Upon presentment, he endorsed the name of Perry H. Jenks on the back of the money order and offered for identification a driver's license in that name. Mrs. Lockwood wrote the number and birth date appearing on the license on the back of the cashed instrument. Although Mrs. Lockwood did not positively identify appellant in court, she stated that the person who cashed the money order was of appellant's general description.

Perry H. Jenks, to whom the driver's license had been issued, testified that the signature on the money order was not his, that he had either lost the license or it had been stolen from him in December of 1968 in Minneapolis, and that the number and birth date on the back of the money order corresponded to that recorded on his driver's license.

At about 7:00 p. m. on the same evening that the money order was cashed at Gibson's Discount Store, the owner and operator of a men's clothing store in Webster City, Iowa was confronted by two Negro men who undertook to purchase some merchandise from him. One of them presented a money order for $100 and, when the owner of the store refused to accept it, both of the prospective purchasers left. Thereupon, the owner contacted the police of Webster City by telephone and alerted them to what had transpired in his place of business.

Two members of the police force of Webster City testified to the effect that at approximately 7:30 p. m. on the evening of January 3, 1969, they stopped a 1960 Oldsmobile automobile bearing an Illinois license plate AB6577. The automobile was occupied by two Negro males. Although the police officers were unable to identify appellant in court as being the occupant of the automobile, both officers stated that the occupants presented driver's licenses, one issued to James Wheeler, the other to James Hill.

A Minneapolis police officer testified that he had occasion to stop appellant in Minneapolis on January 19, 1969, and that he presented for identification an Illinois driver's license issued to James Wheeler.

On January 24, 1969, an F.B.I. agent interviewed appellant and obtained a statement from him which was reduced to writing and signed. He also procured from appellant handwriting exemplars of various signatures. All proper warnings were given to Davis before he was interviewed and no question is raised here as to voluntariness of the statement. In pertinent part, the statement reads:

"When I got out of the hospital, I was approached at my apartment at 26 Oak Grove by a man known to me as Felix Morrisie, a Negro male, about 30 years old, 6\' 3" tall, weighing 200 pounds, black hair and a light complexion.

"Morrisie knew I had a drivers license and other identification of James Boyd Wheeler which I was using to drive in Minnesota. * * *

"Felix Morrisie had a lot of money orders with him. I knew they were illegal.

"I do not know Morrisie\'s real name.

"Felix bought a check machine using the name on my

...