United States v. Rodriguez, 795

• Decision Date: 06 July 1972
• Docket Number: No. 795,Docket 72-1169.,795
• Citation: 465 F.2d 5
• Parties: UNITED STATES of America, Appellee, v. Josefa RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

465 F.2d 5 (1972)

UNITED STATES of America, Appellee, v. Josefa RODRIGUEZ, Defendant-Appellant.

No. 795, Docket 72-1169.

United States Court of Appeals, Second Circuit.

Argued May 19, 1972.

Decided July 6, 1972.

Sheila M. Ginsberg, New York City (Robert Kasanof and William E. Hellerstein, The Legal Aid Society, New York City), for defendant-appellant.

Walter S. Rowland, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and William B. Gray, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MOORE, SMITH and HAYS, Circuit Judges.

MOORE, Circuit Judge:

Josefa Rodriguez appeals from a judgment convicting her of uttering and causing to be uttered a forged $89.20 Social Security check in violation of 18 U.S.C. § 495. Judgment on this second count of a two count indictment was entered after a three day jury trial in the District Court. The first count of the indictment charging appellant with having forged the endorsement of the payee on the check was dismissed for lack of venue before the case was submitted to the jury. Appellant was sentenced to a one day probationary term.

The sole issue on this appeal is whether venue in the Southern District of New York¹ was proper with respect to the second count of the indictment.

I. The Facts

Appellant, a Dominican national, was arrested at her residence in the Bronx, New York, on August 7, 1969. The arrest was the result of an investigation regarding a Social Security check which the payee had reported stolen. At the time of her arrest, appellant gave both written and oral statements concerning her involvement with the check.

According to her oral statement, she needed money to pay for visas for her two children and initially borrowed $80.00 from a Mrs. Gloria Pena for this purpose. Several days later when Mrs. Pena asked for repayment of the loan, appellant did not have the money available. However she told Mrs. Pena that she would make an effort to obtain the money as soon as possible. Appellant then requested and received a loan from a man named "Polidor." This loan, according to the oral statement, was in the form of "his" unsigned "income tax check." (Tr. p. 37).² This check was then used to repay Mrs. Pena.

Appellant, in her oral statement, identified the "Polidor" who had given her the check as a friend who lived at 2902 Cortelyou Road, Brooklyn, New York. She also stated her belief that "Polidor" had been deported to Santo Domingo by the Immigration Department.

Appellant's written statement was essentially similar to her oral statement. As in the oral statement, the written statement indicates that after she obtained "Polidor's" check, Mrs. Pena came to her "house" for repayment of the loan. Appellant did not specify and the investigating officers never asked whether the "house" referred to was in the Bronx or whether the reference was to a prior residence.

In addition to repeating the essentials of the oral statement, the written statement expanded upon appellant's explanation of how the check was negotiated. According to the written statement, Mrs. Pena, upon her arrival at appellant's "house", demanded immediate repayment. Appellant explained that it was necessary to wait for "Polidor" to cash the check because it had not been endorsed. Appellant offered to meet Mrs. Pena in Manhattan with the money after the check was cashed. Mrs. Pena found this arrangement unsatisfactory so appellant signed the check in the name of the payee and handed it to Mrs. Pena. At this time appellant was informed that the check was to be deposited in a bank.

Both the oral and written statements were introduced by the Government during the trial. The Social Security check which carried the endorsements of "Polidor Cohen" and Gloria Pena was also introduced in evidence. A bank stamp on the check indicated that it had been deposited in a Manhattan bank.

In addition to the statements and the check, the Government offered the testimony of Fortunado Cohen and his father Polidor Cohen. They lived together at 2902 Cortelyou Road, Brooklyn, New York, at all times relevant to the proceedings. According to their testimony, Polidor Cohen's Social Security check was stolen from his mail box in May of 1968. The loss was reported and a replacement check was issued. Polidor Cohen, 75 years old and blind, testified that he never gave his check to a woman named Josefa Rodriguez. His son testified that he never knew of anyone other than his father who had the name Polidor Cohen.

The Government also offered evidence establishing that appellant, during an investigative interview prior to her arrest, denied signing the check though she admitted using the check to obtain visas for her children. At that time she also stated that she had received the check from her friend "Polidor." During this interview she agreed to provide handwriting specimens. Upon examination, these specimens proved to be similar to the signature of the payee on the check. Appellant was informed of this positive identification at the time of her arrest. Subsequently, in her oral and written statements, she admitted signing the check.

At the close of the Government's case, defense counsel moved to dismiss the indictment for failure of the Government to establish venue. The motion was denied.

Appellant then testified in her own behalf. She stated that in May of 1968 she lived in an apartment at 2902 Cortelyou Road in Brooklyn. Her testimony was, in substance, similar to the statements given at the time of her arrest. In addition, however, in answer to an inquiry by the court, appellant stated that Mrs. Pena told her that she was going to meet her husband at 42nd Street and Times Square and was then going to deposit the check in a Manhattan bank. After this witness was excused, the defense rested.

Before submitting the case to the jury, the court granted a defense motion to dismiss the first count of the indictment on the Government's failure to offer sufficient evidence on the question of venue. Based on all the evidence, the court found that Josefa Rodriguez had signed the check and given it to Mrs. Pena in Brooklyn.

A similar motion to dismiss the second count of the indictment was denied. The court ruled that proof of venue in the Southern District of New York was sufficient on the theory that appellant could be considered as an aider and abettor of Mrs. Pena who knowingly uttered the forged check in Manhattan. Alternatively, the court ruled that venue was proper because the offense of uttering as charged in the indictment could be considered a continuing offense within the meaning of 18 U.S.C. § 3237.³ Under this theory, the crime of uttering began in Brooklyn where the check was signed and passed to Gloria Pena and continued through the cashing of the check by Gloria Pena in the Manhattan bank. Defense counsel excepted to the court's ruling.

Both theories of venue were submitted to the jury. At issue is the question of whether either one or both of these theories is incorrect.

II. Questions of Law

We must first consider the Government's contention that any question relating to the jury charge is not properly before this court because defense counsel failed to enter a proper objection to the charge as given. While the Government is correct in noting that no specific objection was made to the jury charge with respect to the question of venue, this fact, under the circumstances of this case, is not determinative.

The entire trial lasted three days. On the first day, after the prosecution had presented its case, defense counsel moved to dismiss the indictment for lack of venue. During argument on this motion, the question of venue as regards the second count of the indictment was briefly discussed. (Tr. pp. 66-67). The motion was subsequently denied. It was renewed that afternoon, after the defense rested. Shortly thereafter, court was adjourned. The following morning, argument on the motion continued. Both theories of venue as regards the second count of the indictment were offered by the Government and were discussed at length. (Tr. pp. 124-26, 131-37, 140-42). The court reserved decision. On the third day, the court dened the motion to dismiss the second count of the indictment because both theories of venue were found to be proper. (Tr. pp. 149-50). An exception was noted. The court immediately proceeded to rule on the requests to charge. (Tr. pp. 154 et seq.). A verdict was returned that afternoon.

It is evident that the court was fully aware of the defense position with respect to venue. Throughout the trial, defense counsel argued that no jury charge could be given because, as a matter of law, venue did not exist. In light of these circumstances and the importance of venue in the administration of justice, we find that sufficient objection was made to the theories of venue upon which the jury was instructed. Cf., Roberts v. United States, 109 U.S.App. D.C. 75, 284 F.2d 209, 211 n. 7 (1960), cert. denied, 368 U.S. 863, 82 S.Ct. 109, 7 L.Ed.2d 60 (1961).

Turning to the question of venue, we shall first consider the instruction that the jury could return a verdict of guilty if it found that appellant aided and abetted a criminal utterance of the check in Manhattan.

The source of appellant's grievance with respect to this instruction is the fact that most of the evidence at trial was directed to the circumstances of appellant's signing and uttering the check to Gloria Pena; not Gloria Pena's subsequent utterance of the check in Manhattan. According to appellant, the Government began to rely upon the theory that she was guilty of aiding and abetting the subsequent utterance when it became clear, after all the evidence had been introduced, that venue could not be sustained on any other theory. Appellant urges us to consider the belated change in the Government's theory of guilt to be prejudicial. We find the argument unpersuasive.

The second count of...