United States v. Rosario ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
7-10-1997
United States v. Rosario
Precedential or Non-Precedential:
Docket 96-5286
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Filed July 10, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-5286
UNITED STATES OF AMERICA
v.
ALTIGRACI ROSARIO
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 95-cr-00277)
ARGUED JANUARY 23, 1997
BEFORE: NYGAARD and LEWIS, Circuit Judges
and COHILL,* District Judge.
(Filed July 10, 1997)
Michael V. Gilberti, Jr.
(ARGUED)
Bennett & Leahey
321 Broad Street
Red Bank, NJ 07701
Attorney for Appellant
_________________________________________________________________
*Honorable Maurice B. Cohill, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
Kevin McNulty
Office of the United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
Andrew O. Schiff (ARGUED)
Office of the United States Attorney
402 East State Street, Room 502
Trenton, NJ 08608
Attorneys for Appellee
OPINION OF THE COURT
LEWIS, Circuit Judge.
Altigraci Rosario challenges her conviction on two counts
of passing United States Treasury checks in violation of 18
U.S.C. § 510(a). Of primary importance on appeal is
Rosario's challenge to the sufficiency of the evidence with
regard to Count 1 of the indictment. We must decide
whether a conviction for passing a treasury check can be
sustained based solely on evidence establishing that the
defendant possessed the check and that it was "probable"
that the defendant had signed the check. We conclude that
it can and will affirm.
I.
Altigraci Rosario operated a tax preparation service in
Hightstown, New Jersey. Jose Rios, Rosario's nephew by
marriage, was employed by Rosario and assisted with her
tax preparation service. In February 1993, the U.S.
Treasury Department mailed a Treasury check to Angel and
Ana Andrade in the amount of $2,996.00. Soon thereafter,
the Andrades filed a complaint with the Treasury
Department alleging that they had not received the check.
On January 11, 1994, the New Jersey National/
Corestates Bank notified the U.S. Secret Service that Jose
Rios had deposited the Andrade check into his account at
the bank. That same day, the Secret Service interviewed
2
Rios. During the interview, Rios stated that Rosario had
given him the signed check and asked him to cash it. Rios
apparently received a $20 fee for executing the transaction.
In September 1993, the U.S. Treasury Department mailed
a tax refund check to Ivan Vitiello in the amount of
$1,943.03. Subsequently, Vitiello filed a complaint with the
Treasury Department alleging that he had not received the
check. In his complaint, Vitiello identified Altigraci Rosario
as his tax preparer. Vitiello stated that he had authorized
Rosario to have the check delivered to her post office box,
but he had not authorized her to cash the check.
On May 4, 1994, a U.S. Postal Inspector confirmed that
Vitiello's check had been delivered to a post office box
registered to Altigraci Rosario and Jose Rios. That same
day, the Vitiello check was cashed at Reed's Garage in
Cranbury, New Jersey. Employees of Reed's Garage
informed the government that Rosario and Rios had cashed
the Vitiello check. Sometime later, the government
identified Rosario's fingerprint on the check.
On November 18, 1994, the government filed a two-count
misdemeanor complaint against Rosario, charging her with
negotiating two checks bearing forged endorsements in
violation of 18 U.S.C. § 510(a) and § 510(c). Count 1 of the
indictment related to the Andrade check and Count 2
related to the Vitiello check. After a one-day jury trial,
Rosario was convicted on both counts.1
At trial, Angel and Ana Andrade testified that they had
never met Rosario, used her service or authorized her or
anyone else to endorse their check. Rios, the prosecution's
chief witness, testified that Rosario had given him the
Andrade check, which had been endorsed, along with a
form of identification of the payee. Rosario asked Rios to
cash the check, informing him that the payee did not have
a bank account and therefore could not cash the check.
(Apparently, Rios had a substantial amount of cash in a
safe in the office due to a $20,000 personal injury
settlement.)
_________________________________________________________________
1. Because Rosario does not challenge the sufficiency of the evidence
with regard to Count 2, relating to the Vitiello check, we will not discuss
the proof offered at trial with regard to that count.
3
Rios further testified that he had not met the persons
whom Rosario told him had given her the check. Indeed,
Rios stated that he "didn't even see the people." App. at
47A. According to Rios, he took the Andrade check from
Rosario, photocopied the identification and gave Rosario the
cash, less a $20 fee. Rios stated that he did not actually see
Rosario hand the cash over to any person who might be
associated with the check, but that he did see her "talking
to someone." App. at 49A.
Finally, Rios testified that after the bank informed him
that the Andrade check had been reported stolen, he looked
for the photocopy that he had made of the identification but
could not find it. When he informed Rosario about the
check, Rios acknowledged that she seemed "genuinely
surprised" that the check had been reported stolen. App. at
54A.
The government supplemented the testimony of Rios with
the testimony of a handwriting expert, Secret Service
document examiner Jeffrey Taylor. After comparing the
signature for Ana Andrade that appeared on the check with
a known sample of Rosario's handwriting, Taylor testified
that Rosario "probably" had forged the check herself -- that
is, it was "more likely than not" that she had done so.
Essentially, the testimony of Rios, Taylor and the Andrades
constituted the entirety of the government's case on Count
1 of the indictment.
After the jury rendered its verdict, Rosario filed a Rule 29
motion for judgment of acquittal on Count 1 with the
magistrate judge, arguing, inter alia, that the evidence was
insufficient to sustain a conviction.2 The magistrate judge
denied Rosario's post-trial motions. See United States v.
Rosario, Crim. No. 94-5050K-01 (D.N.J. May 9, 1995).3 On
June 2, 1995, the magistrate judge sentenced Rosario to
eight months in prison on both counts to be served
_________________________________________________________________
2. Rosario also moved for a new trial on both counts based upon the
magistrate judge's allegedly erroneous ruling on her motion in limine.
3. The magistrate judge had jurisdiction to serve as trial judge over
Rosario's trial pursuant to 18 U.S.C. § 3401, which allows a magistrate
judge to try and sentence persons accused and convicted of
misdemeanor offenses.
4
concurrently.4 At the time of sentencing, Rosario was
already serving a one-year sentence for an unrelated
bribery conviction.
Rosario then appealed the magistrate judge's decision to
the district court pursuant to 18 U.S.C. § 3402.5 The
district court affirmed Rosario's conviction and sentence in
all respects. See United States v. Rosario, Crim. No. 96-277
(D.N.J. April 3, 1996). On this appeal, Rosario's primary
challenge to her conviction is that the evidence offered at
trial was insufficient to support the jury's conviction on
Count 1.6
The district court had jurisdiction over the criminal
proceedings pursuant to 18 U.S.C. § 3231. We have
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
II.
Our review of a sufficiency of the evidence challenge is
guided by strict principles of deference to a jury's verdict.
United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.),
cert. denied, 117 S. Ct. 613 (1996). We must view the
evidence in the light most favorable to the government and
must sustain a jury's verdict if "a reasonable jury believing
_________________________________________________________________
4. Rosario was also ordered to pay restitution in the amounts of
$2,996.00 and $1,934.00 to the victims and to pay aggregated special
assessments of $50.00.
5. That statute provides:
In all cases of conviction by a United States magistrate an appeal of
right shall lie from the judgment of the magistrate to a judge of the
district court of the district in which the offense was committed.
18 U.S.C. § 3402.
6. Rosario also raises again the argument that the magistrate judge erred
by denying her motion in limine to exclude the admission of her prior
bribery conviction. We decline to address the merits of the magistrate's
in limine ruling because, by not testifying at trial, Rosario has failed to
preserve this issue for appeal. See Luce v. United States, 469 U.S. 38(1984) (holding that in order to raise and preserve for review the claim
of improper impeachment with a prior conviction, a defendant must
testify); United States v. Moskovits, 86 F.3d 1303, 1305-06 (3d Cir. 1996)
(same), cert. denied, 117 S. Ct. 968 (1997).
5
the government's evidence could find beyond a reasonable
doubt that the government proved all the elements of the
offenses." United States v. Salmon, 944 F.2d 1106, 1113 (3d
Cir. 1991). Accordingly, "[a] claim of insufficiency of the
evidence places a very heavy burden on the appellant."
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
Rosario was convicted of check forgery under 18 U.S.C.
§ 510(a)(2), which provides:
(a) Whoever, with intent to defraud--
....
(2) passes, utters, or publishes, or attempts to pass,
utter, or publish, any Treasury check or bond or
security of the United States bearing a falsely made or
forged endorsement or signature;
shall be fined under this title or imprisoned not more
than ten years, or both.
18 U.S.C. § 510(a)(2).
At trial, the magistrate instructed the jury that, under
the statute, the government was required to prove the
following elements beyond a reasonable doubt:
(1) that the defendant passed or attempted to pass a
U.S. Treasury check,
(2) that the check bore a forged or falsely made
endorsement,
(3) that the defendant passed the check with inten t to
defraud, and
(4) that the defendant acted knowingly and willfully.
Rosario, Crim. No. 94-5050K-01, slip op. at 7.
Rosario contends that the government failed to meet its
burden on elements (2), (3) & (4). Specifically, she argues
that Rios's testimony establishing that she possessed the
check was insufficient to corroborate the testimony of the
handwriting expert that she probably forged the check.
As noted earlier, Taylor testified that it was "probable"
that Rosario had forged the check. "Probable" is a term of
6
art used by Secret Service document examiners. The
"probable" category falls exactly in the middle of the six-
point spectrum between "positive identification" and
"positive elimination." Thus, handwriting experts will use
the term "probable" to describe
times when the evidence falls considerably short of the
"virtually certain" category and yet still points rather
strongly toward the suspect, i.e., there are several
significant similarities present between the questioned
and known writings, but there are also a number of
irreconcilable differences and the examiner suspects
that they are due to some factor but cannot safely
attribute the lack of agreement to the effect of that
factor.
Thomas V. Alexander, Definition of Handwriting Opinions,
App. at 37A.
The government concedes that Taylor's testimony alone
would be insufficient to sustain a conviction under § 510(a).
The government argues, however, that Taylor's testimony
that Rosario probably forged the check, coupled with Rios's
testimony that Rosario had given him the check, would
allow the jury to make the inference that Rosario had
forged the check. Moreover, according to the government,
once the jury concluded that Rosario had forged the check,
it could logically conclude that she had done so knowingly
and willfully and with intent to defraud. We agree. By
establishing that Rosario possessed the check, and thus
had the opportunity to forge it, the government provided
validation for Taylor's testimony that Rosario had probably
forged the check.7
_________________________________________________________________
7. Once the jury was provided with enough information to conclude that
Rosario had forged the check, it certainly could have inferred that she
acted knowingly and willfully and with the intent to defraud. Of course,
the requisite state of mind elements only follow if the jury believed that
Rosario did, in fact, forge the check. See, e.g., United States v. Hall, 632
F.2d 500, 503 (5th Cir. 1980) (holding that once forgery was established,
inferences of knowledge and unlawful intention followed). Given the
Andrades' testimony that they did not know Rosario nor authorize her to
endorse the check, the jury could have assumed that Rosario forged the
endorsement of the check with the requisite intent to defraud.
7
In reaching this conclusion, we are persuaded by the
reasoning put forth in United States v. Richardson, 755
F.2d 685 (8th Cir. 1985) (per curiam) and United States v.
Rivamonte, 666 F.2d 515 (11th Cir. 1982) (per curiam). In
both Richardson and Rivamonte, as here, the handwriting
expert's testimony established only that it was "probable"
that the defendant had forged the check.
In Richardson, the court upheld a check forgery
conviction challenged on insufficiency grounds. The
handwriting expert testified that Richardson had "probably"
signed the check. This testimony was supplemented by
evidence that Richardson had access to a key to the
victim's home, that she had made a deposit in the exact
same amount as the stolen check, and that her fingerprints
were on the stolen check. In upholding the conviction, the
court concluded that this was "ample evidence to support
the verdict." Richardson, 755 F.2d at 686.
Similarly, in Rivamonte, the court upheld a check forgery
conviction based on the following evidence: a handwriting
expert's testimony that the defendant had "probably" signed
the check; the defendant's fingerprints were on the check;
the defendant's account number was written on the back of
the check; and the payees' names were written on the
defendant's pre-encoded deposit slip. Rivamonte, 666 F.2d
at 516-17. The court held that "a jury reasonably could
conclude that this evidence is inconsistent with every
reasonable hypothesis of appellant's innocence." Id. at 517.
Although in Richardson and Rivamonte the government
offered slightly more circumstantial evidence than was
offered at Rosario's trial, we are nevertheless convinced that
the evidence establishing that the respective defendants
had possessed the check was of primary significance in
those cases. Our conclusion is bolstered by the Eleventh
Circuit's post-Rivamonte decision in United States v.
Henderson, 693 F.2d 1028 (11th Cir. 1982). In Henderson,
the court reversed a check forgery conviction based solely
on ambiguous handwriting testimony and evidence showing
that the defendant's wife had cashed the stolen check. The
government offered no evidence that Henderson had ever
possessed the check. Distinguishing Rivamonte, the court
noted:
8
Although both Rivamonte and the present appeal had
handwriting experts testify that the respective
defendants "probably" endorsed the checks, the
additional evidence in Rivamonte constituted sufficient
evidence to sustain a conviction. The fingerprints and
the defendant's account number support the
conclusion drawn by the handwriting expert in
Rivamonte.
Henderson, 693 F.2d at 1032.
Here, although Rosario's fingerprints were not found on
the check, Rios's testimony established that Rosario was in
possession of the check. Thus, Rios's testimony that
Rosario possessed the check provided the same
corroboration for the handwriting expert's testimony that
the fingerprint evidence in Rivamonte and Richardson did.
See also United States v. Chatman, 557 F.2d 147, 148 (8th
Cir. 1977) (per curiam) (upholding check forgery conviction
because accessibility of payee's mailbox to defendant
provided corroboration for less than conclusive expert
handwriting testimony).
In our view, because the evidence established that
Rosario did, in fact, possess the check, the jury could have
used that fact to corroborate the handwriting expert's
testimony that she had probably forged the signature on
the check. While neither of these factors independently
would be sufficient to support a conviction, taken together
they are sufficient to support the jury's guilty verdict.8
_________________________________________________________________
8. We are not persuaded by Rosario's attempt to characterize Rios's
testimony as "exculpatory" for her. Using Rios's testimony, Rosario
implies that she merely unknowingly passed the forged check to Rios
and then passed along the cash to the person or persons who brought
in the check. Rosario finds further support for her theory from Rios's
testimony that she was "genuinely surprised" when he reported that the
check was stolen.
As the district court pointed out, however, the jury was not required
to believe that Rosario made any of the arguably exculpatory out-of-court
statements to Rios. Rosario, Crim. No. 96-277, slip op. at 6. And, in any
event, the statements she relies on are not inconsistent with guilt.
Simply stated, the jury had no reason to believe that Rosario was being
truthful with Rios. Indeed, the jury could have just as well believed that
9
Finally, we acknowledge that this is a close case. Indeed,
were we sitting as triers of fact, we very well may have come
to a different conclusion than the jury did here.
Nevertheless, we cannot say that there was insufficient
evidence to support the jury's verdict. Accordingly, we
affirm Rosario's conviction.
_________________________________________________________________
Rosario's statements to Rios served to deceive him into believing that she
had unwittingly passed the forged check. After all, it certainly served
Rosario's interests for Rios to believe the check transaction was
legitimate because Rios may have been less willing to cash the check
had he known it was stolen.
10
NYGAARD, Circuit Judge, dissenting.
The government argues that the combination of wholly
ambiguous testimony from a handwriting expert and
equivocal testimony from a witness receiving favorable
treatment from the government is sufficient to support the
conviction of Altigraci Rosario for passing a United States
Treasury check. The majority accepts this argument. I do
not; hence, I dissent.
To convict Rosario of check forgery under 18 U.S.C.
§ 510(a)(2), the government was required to prove four
elements beyond a reasonable doubt: (1) that the check
was a U.S. Treasury check; (2) that the check bore a forged
or falsely made endorsement; (3) that Rosario passed the
check with intent to defraud; and (4) that Rosario acted
knowingly and willfully. There was no direct evidence
adduced at trial to satisfy the government's burden on
elements (2), (3) and (4). Recognizing this, the government
nonetheless asks us to cobble together a series of
inferences to support the jury's verdict. It argues that,
taken collectively, the testimony of Taylor, the handwriting
expert, and Rios, the man who negotiated the stolen check,
are sufficient to permit the jury to infer that Rosario forged
the check. Building on this inference, it then claims that
the jury could draw the further inferences that Rosario
possessed the requisite knowledge, willfulness and intent to
defraud necessary to satisfy the remaining elements of the
charged offense. In my view, these "inferences" do no more
than permit the jury to speculate that Rosario is guilty,
especially in light of the weak testimony from which these
inferences are drawn.
Jeffrey Taylor, the government's handwriting "expert,"
could only testify that Rosario "probably" signed the name
"Ana Andrade" to the back of the Andrades' check. The trial
record shows, however, that Taylor's testimony was even
more ambiguous. Indeed, under cross-examination Taylor
conceded that there were a number of "irreconcilable
differences" between the Ana Andrade signature on the
check and Rosario's sample signature. App. at 35A.
Moreover, Taylor candidly admitted that there was "some
doubt" in his mind as to whether Rosario signed Ana
Andrade's name on the check. App. at 35A-36A.
11
Significantly, Taylor also acknowledged on direct
examination that he "found no evidence that [Rosario] wrote
the remaining signature [Angel Andrade's] on that check."
App. at 32A. Taylor's concessions make his already
equivocal conclusion that Rosario "probably" forged Ana
Andrade's name on the check even less reliable. I would
conclude that inferences drawn from such clearly
ambiguous testimony cannot possibly satisfy the
government's burden of establishing beyond a reasonable
doubt that Rosario forged Ana Andrade's signature on the
check.
Recognizing the inherent weakness of Taylor's vague
opinion, the government would have us rely on the
testimony of Rios for support that Rosario forged the check.
Rios's testimony, it argues, establishes that Rosario both
possessed and had the opportunity to forge the check,
thereby allowing the jury to infer that Rosario did, in fact,
forge Ana Andrade's signature on the check. By presenting
evidence that Rosario possessed the check and had the
opportunity to sign it, the government contends that it
provided validation for Taylor's equivocal opinion that
Rosario probably forged the check. In support of its
argument, the government relies primarily on two cases
where courts affirmed forgery convictions based in part on
testimony from a handwriting expert indicating that the
defendant had "probably" forged the stolen check. See
United States v. Richardson, 755 F.2d 685 (8th Cir. 1985)
(per curiam); United States v. Rivamonte, 666 F.2d 515(11th Cir. 1982) (per curiam).
In my view, however, reliance on Richardson and
Rivamonte is imprudent for a number of reasons. First,
notwithstanding the assertion that the government offered
only "slightly" more circumstantial evidence in Richardson
and Rivamonte than that adduced here, Maj. Opinion at 8,
the records in those cases demonstrate that there was
ample evidence tending to establish all elements of those
check forgery convictions.
For example, in Richardson, the court affirmed a check
forgery conviction where the handwriting expert's testimony
was complemented by evidence showing that Richardson
had a key to the home where the check was stolen,
12
Richardson's fingerprints were found on the stolen check, a
stolen deposit slip was used to cash the check, and
Richardson had made a deposit in the exact same amount
as the stolen check during the time period in which the
stolen check was cashed. 755 F.2d at 686.
Similarly, in Rivamonte, the court affirmed a check
forgery conviction where the expert's opinion was
complemented by evidence showing that Rivamonte's
fingerprints and palmprints were found on the check, the
defendant's account number was written on the back of the
check, the payee's names were written on Rivamonte's pre-
encoded deposit slip, and a deposit was made in the
defendant's account on the same day that the stolen check
was negotiated. 666 F.2d at 516-17.
In each case, the government proffered strong
circumstantial evidence specifically related to the respective
defendants' possession of the stolen checks, their intent to
defraud and their states of mind. Such was not the case
here, where the government, lacking sufficient evidence to
establish any of these elements beyond a reasonable doubt,
was forced to ask the jury to speculate that Rosario forged
the check, passed the check with intent to defraud, and
acted with requisite knowledge and willfulness.
I do not believe we can contort Richardson and Rivamonte
to support the proposition that testimony from a
handwriting expert indicating that a defendant "probably"
forged a stolen check in conjunction with evidence showing
possession of the stolen check by the defendant constitutes
sufficient evidence to affirm a conviction under 18 U.S.C.
§ 510(a)(2). Simply stated, there is no such baseline
position established in the case law. Instead, Richardson
and Rivamonte suggest that an "expert" opinion that the
defendant probably forged the check, coupled with
sufficient additional circumstantial evidence demonstrating
possession, willfulness, knowledge and intent to defraud, is
necessary before a conviction will be affirmed.
United States v. Hall, 632 F.2d 500 (5th Cir. 1980), is not
to the contrary. In Hall, the court held that once forgery is
conclusively proven, inferences of fact regarding possession,
intent and knowledge can be permissibly drawn by the
13
government. Id. at 502. The handwriting expert in Hall,
however, provided an unequivocal opinion that the
defendant had forged the payee's name on the stolen check,
thereby providing the government with conclusive factual
proof of the forgery element of the offense from which
inferences tending to establish the other elements of the
offense could be drawn. Id. Here, in contrast, the
government has offered only ambiguous, inconclusive
testimony regarding the forgery element of the offense. As
such, there is no conclusively proven fact of forgery from
which the government could draw inferences tending to
establish the other elements of the offense of conviction.
My interpretation of the case law is supported by the
post-Rivamonte decision in United States v. Henderson, 693
F.2d 1028 (11th Cir. 1982), which, in my view, does not
bolster the government's argument. In Henderson, the court
reversed a check forgery conviction based on ambiguous
handwriting testimony and circumstantial evidence tending
to show that the defendant's wife had cashed the stolen
check. In reaching its decision, the court reasoned as
follows:
Although it is apparent that someone endorsed Mr.
Moore's signature on the back of the treasury check,
the evidence was not sufficient for a fair jury to
conclude beyond a reasonable doubt that Mr.
Henderson was the endorser. The evidence, because it
was circumstantial required that the jury draw an
inference that because Ms. Henderson used the
defendant's car to cash the check, and because Ms.
Henderson did cash the check, the defendant must
have signed the check. This simply does not follow. It
is unreasonable to infer Mr. Henderson's guilt based
upon the actions of his wife. Yet, it is apparent from
the evidence that there was little else upon which to
base a conviction. . . . Although circumstantial evidence
is testimony to the surrounding facts and
circumstances of the point at issue, they must at some
point connect, to allow the trier of fact to draw the
inference that the fact asserted is true.
Id. at 1031 (internal citation omitted). The court then
proceeded to distinguish Rivamonte on the basis of the
14
strength of the additional evidence offered by the
government in that case. As the Henderson court
concluded: "In the present case, the additional evidence,
together with the handwriting expert's ``probable' testimony,
is not sufficient." 693 F.2d at 1032. Significantly, there is
nothing in the Henderson decision to suggest that the court
viewed the failure of the government to produce evidence
showing that Mr. Henderson possessed the stolen check as
determinative of the sufficiency of the evidence. Rather, the
Henderson court reviewed the proffered evidence in its
entirety and determined that there was insufficient evidence
supplementing the ambiguous handwriting testimony to
permit a reasonable jury to conclude beyond a reasonable
doubt that Mr. Henderson was guilty of the offense of
conviction.1
Notwithstanding the absence of any legal precedent for
its conclusion that ambiguous handwriting evidence
coupled with evidence of possession constitutes sufficient
evidence to affirm a conviction under § 510(a), the
government speciously reasons that Rosario's conviction
was proper because Rios's testimony that Rosario
possessed the check provided the same corroboration for
the handwriting expert's testimony that the fingerprint
evidence in Rivamonte and Richardson did. What this bit of
forensic gymnastics neglects to explain, however, is that the
government's fingerprint expert was unable to identify any
finger or palm prints belonging to Rosario on the Andrade
check. App. at 42A-43A. Thus, the government was forced
to rely on Rios's testimony as the "equivalent" of fingerprint
evidence precisely because there was no fingerprint
evidence available to support the conclusion that Rosario
forged Ana Andrade's name on the back of the stolen check.
Rather than lend credibility to the ambiguous handwriting
testimony offered in this case, the government's reliance on
Rios's testimony highlights the dearth of evidence offered by
the government to meet its burden of proof. Simply stated,
_________________________________________________________________
1. The majority correctly states that in Henderson the government offered
no evidence that Mr. Henderson had ever possessed the stolen check.
Maj. Opinion at 8. I note, however, that the government similarly failed
to offer any evidence specifically relating to Mr. Henderson's intent to
defraud, knowledge or state of mind.
15
aside from Rios's testimony the government failed to
adduce any additional evidence to validate Taylor's
equivocal conclusion that Rosario signed the stolen check.
Lacking further additional evidence like that offered in the
Rivamonte and Richardson cases (e.g., fingerprints,
palmprints, pre-coded deposit slips), I fail to understand
how Rios's testimony could possibly transform Taylor's
ambiguous conclusion into factual proof sufficient to
establish Rosario's guilt beyond a reasonable doubt.
Finally, I am concerned because parts of Rios's testimony
directly contradict inferences that the jury was supposed to
have drawn from Rios's testimony. For instance, on cross-
examination Rios testified that Rosario did not know that
the check was stolen. App. at 52A. Such testimony clearly
undercuts the idea that the jury could infer that Rosario
had the requisite knowledge and intent to defraud
necessary to support a conviction under § 510(a)(2).
Moreover, it also puts the majority in the awkward position
of relying on Rios's testimony in order to bolster the
inferences that Rosario possessed and forged the stolen
check, but ignoring Rios's testimony in order to draw the
inferences that Rosario had the requisite knowledge and
state of mind necessary to support her conviction. Such
inconsistencies further reinforce my conclusion that the
evidence proffered in this case permitted the jury to do little
more than speculate as to Rosario's guilt.
In summary, I believe that the evidence adduced by the
government at trial falls far below the horizon of certainty
we require in criminal prosecutions and is not sufficient to
convict Rosario beyond a reasonable doubt. Handwriting
analysis is at best an inexact science, and at worst mere
speculation itself. See, e.g., D. Michael Risinger et al.,
Exorcism of Ignorance as a Proxy for Rational Knowledge:
The Lessons of Handwriting Identification "Expertise", 137
U. Pa. L. Rev. 731, 739 (1989) (reporting that "[f]rom the
perspective of published empirical verification, handwriting
identification expertise is almost nonexistent"). As such, I
do not believe that wholly ambiguous testimony from a
handwriting "expert" and selected testimony from a witness
receiving favorable treatment from the government can
16
satisfy the government's burden of proof. Accordingly, I
would reverse Rosario's conviction.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
17