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U.S. v. Rosario

July 10, 1997

ICA

v.

ALTIGRACI ROSARIO

APPELLANT.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 95-cr-00277)

BEFORE: NYGAARD and LEWIS, Circuit Judges and COHILL, *fn1 District Judge.

LEWIS, Circuit Judge.

Filed July 10, 1997

ARGUED JANUARY 23, 1997

OPINION OF THE COURT

Altigraci Rosario challenges her conviction on two counts of passing United States Treasury checks in violation of 18 U.S.C. Section(s) 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 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. Section(s) 510(a) and Section(s) 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. *fn2

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.)

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. *fn3 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). *fn4 On June 2, 1995, the magistrate judge sentenced Rosario to eight months in prison on both counts to be served concurrently. *fn5 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. Section(s) 3402. *fn6 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. *fn7

The district court had jurisdiction over the criminal proceedings pursuant to 18 U.S.C. Section(s) 3231. We have jurisdiction over the appeal ...


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