Whitehorn v. United States, 18649.

• Decision Date: 03 August 1967
• Docket Number: No. 18649.,18649.
• Citation: 380 F.2d 909
• Parties: Rochell WHITEHORN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

380 F.2d 909 (1967)

Rochell WHITEHORN, Appellant, v. UNITED STATES of America, Appellee.

No. 18649.

United States Court of Appeals Eighth Circuit.

August 3, 1967.

Fred Leicht, Jr., St. Louis, Mo., for appellant.

Irvin L. Ruzicka, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., with him on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The defendant, Rochell Whitehorn, was convicted by a jury on Counts I and III of an indictment and was sentenced to forty-two months imprisonment on each count, the sentences to be served concurrently. Count I charged the defendant with unlawfully having in his possession a United States Treasury check for $125.40 payable to John S. Williams, which check had been stolen from the mails, the defendant having knowledge that such check had been stolen, all in violation of 18 U.S.C.A. § 1708.

Count III charged that defendant, with intent to defraud the United States, did utter and publish as true a falsely altered and forged writing, to wit, the check hereinabove described bearing a forged endorsement of the payee, defendant knowing that such check was falsely altered and forged, all in violation of 18 U.S.C.A. § 495.

Count II, not here material, charging the defendant with forging the endorsement on the check in violation of 18 U. S.C.A. § 495, was dismissed prior to trial.

This is a timely appeal in forma pauperis by defendant from his conviction on Counts I and III of the indictment and the resulting sentence. Defendant has been represented by court-appointed counsel both in the trial court and here.

Defendant's asserted points for reversal are summarized and restated as follows:

I. Error committed in overruling defendant's motions for acquittal made at the close of the Government's case and again at the close of all of the evidence and his motion for acquittal notwithstanding the verdict. All motions were directed at each count of the indictment upon which defendant was convicted and grounded upon insufficiency of the evidence to support a conviction.

II. Prejudicial error caused by unlawful initial arrest of defendant prior to indictment and the failure to accord defendant a preliminary hearing upon the complaint filed with the commissioner.

III. Prejudicial comment by the prosecuting attorney in closing argument and prejudicial error on the part of the court in incorporating in its instructions all of 18 U.S.C.A. § 1708.

A careful consideration of the entire record convinces us that the defendant's assertions lack merit, that defendant has had in all respects a fair trial and that the conviction should be affirmed. We shall consider the errors in the order in which they have been stated.

I.

An adequate evidentiary basis exists to support the conviction of the defendant on the Count I possession charge. Defendant took the witness stand and denied that he had ever had possession of the check. His testimony is squarely contradicted by Mr. Riek, the operator of a check cashing agency, who testified that defendant came to his place of business on the morning of September 12, 1966, and produced and attempted to cash the Williams check described in the indictment which already bore an endorsement purported to be that of Williams. Mr. Riek was not satisfied with the identification furnished by the defendant purporting to show that he was the payee Williams. At Riek's request, defendant wrote the name "Williams" on the identification card he presented. Defendant left to meet a court appointment stating that he would be back later and asked Mr. Riek to be sure to remember him.

Riek retained the check and identification card and called in the Secret Service. Two agents of that agency came to Riek's place of business to investigate, taking the check with them. They returned in the afternoon of that day, returning the check to Riek, and were on the premises when defendant returned to obtain the check or its proceeds. The presence of the Secret Service agents at the time of defendant's afternoon call corroborates Riek's testimony that defendant's first call at the check cashing office was on the morning of September 12. Defendant's credibility presented a jury question for jury determination.

Defendant also challenges the proof that the check was stolen from the mail. The Government's evidence establishes that the check in controversy, dated September 1, 1966, was issued for monthly railroad retirement benefits due Williams, and was mailed along with many similar checks from the Chicago office on August 30, 1966. The envelope carrying the check was addressed to John S. Williams, 1342 Temple, St. Louis, Missouri.

Mr. Williams as a witness testified that some months prior to September 1966 he had moved to 5656 Church Street, St. Louis; that he had furnished the post office with his forwarding address on the appropriate form; that he had received his July and August checks and that he had been watching his mail box but never received the September 1, 1966, check here involved and that he had not endorsed such check or authorized any one else to do so.

Additionally, two Secret Service agents testified that they saw defendant while in their office throw an item into the waste basket; that such item was retrieved and was an envelope of a type used exclusively for mailing railroad retirement checks. Such envelope was produced and received in evidence.

In a case strikingly similar factually, the late Chief Judge Clark of the Second Circuit, in United States v. Hines, 2 Cir., 256 F.2d 561, 564, held the evidence sufficient to sustain a conviction under § 1708, stating:

"We have reiterated many times that the jury may make common-sense inferences from the proven facts in both civil and criminal cases. (Citations omitted.) Here, in the absence of a contrary explanation, it could be rationally inferred from the proof that the letter containing the check was stolen from the mails. While the defendant testified, it was to deny everything in effect; and since the jury found this denial obviously false, the inference became yet more natural. Thus the indictment was proper, and the evidence adequate; * * *."

We agree with the foregoing statement of applicable law. In our case, an ample evidentiary basis exists for an inference that the check was stolen from the mails.

Defendant's possession of the stolen check within two weeks of the time it...