United States v. Wilkins
| Citation | 328 F.2d 120 |
| Decision Date | 19 February 1964 |
| Docket Number | No. 322,Docket 28141.,322 |
| Parties | UNITED STATES of America, Appellee, v. Lloyd Edward WILKINS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Irving Younger, New York City, for appellant.
Andrew J. Maloney, New York City (Robert M. Morgenthau, U. S. Atty. for the Southern Dist. of New York, Andrew T. McEvoy, Jr., Robert J. Geniesse, Asst. U. S. Attys., of counsel), for appellee.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
After a trial before Judge Bryan without a jury in the Southern District of New York, Wilkins was convicted of abetting the forgery of an endorsement on a United States Treasury check and the uttering of such a check, in violation of 18 U.S.C. § 495. He does not deny that the evidence warranted the judge in finding that he stole from a mailbox a $60 Treasury check payable to "A.Rivera unrem wid," meaning, as we are told, "unremarried widow"; that he sought the aid of one Leary1 in cashing the check, saying falsely that it belonged to Wilkins' aunt, promising Leary $5 for his pains, and adding "If we cash that one, there are some more checks in the mailbox like this"; that Leary went to the garage of a taxi company and asked an employee, Finelli, to cash the check, telling Finelli it belonged to his aunt or his friend's aunt; that Leary then endorsed "A.Rivera unrem wid"; and that Finelli, having himself endorsed the check, then cashed it at the taxi company's office.
Wilkins' sole challenge to his conviction is a contention that the making of a false endorsement with a knowingly false oral representation of authority comes within the rationale of Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L. Ed.2d 750 (1962), which held that a knowingly unauthorized written agency endorsement did not constitute a forgery at common law nor hence under 18 U.S. C. § 495, originally enacted in 1823, 3 Stat. 771. But, as the district judge held, the case is different in the essential respect, recognized in Selvidge v. United States, 290 F.2d 894 (10 Cir. 1961), which the Supreme Court cited with approval in Gilbert, that whereas the endorsement in each of those cases "was exactly what it professed to be," here it was not — with a correspondingly different effect on the company that cashed the check, the banks through which it passed, and ultimately on the Treasury. What Leary did and Wilkins caused to be done constituted "the making or altering a writing so as to make the writing or alteration purport to be the act of some...
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