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. e du/thir dc ir c uit_1997/154Filed 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 Distric t Judge for the Western District of Pennsylvania, sitting by design ation.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 violati on of 18 U.S.C. § 510(a). Of primary importance on appeal is Rosario's challenge to the sufficiency of the evide nce with regard to Count 1 of the indictment. We must decide whether a conviction for passing a treasury check c an be sustained based solely on evidence establishing tha t the defendant possessed the check and that it was "prob able" that the defendant had signed the check. We conclud e that
it can and will affirm.

I.

Altigraci Rosario operated a tax preparation servic e 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 Ange l and Ana Andrade in the amount of $2,996.00. Soon therea fter, 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 th at Jose Rios had deposited the Andrade check into his accou nt at the bank. That same day, the Secret Service intervi ewed

2Rios. During the interview, Rios stated that Rosari o had

given him the signed check and asked him to cash it . Rios apparently received a $20 fee for executing the tra nsaction.

In September 1993, the U.S. Treasury Department mai led
a tax refund check to Ivan Vitiello in the amount o f $1,943.03. Subsequently, Vitiello filed a complaint with the Treasury Department alleging that he had not receiv ed the check. In his complaint, Vitiello identified Altigr aci Rosario as his tax preparer. Vitiello stated that he had au thorized Rosario to have the check delivered to her post off ice box,
but he had not authorized her to cash the check.

On May 4, 1994, a U.S. Postal Inspector confirmed t hat Vitiello's check had been delivered to a post offic e 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 c ashed the Vitiello check. Sometime later, the government identified Rosario's fingerprint on the check.

On November 18, 1994, the government filed a two-co unt 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 h er or anyone else to endorse their check. Rios, the prose cution'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 no t have
a bank account and therefore could not cash the che ck. (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 sufficien cy of the evidence with regard to Count 2, relating to the Vitiello ch eck, we will not discuss the proof offered at trial with regard to that coun t.

3Rios further testified that he had not met the pers ons

whom Rosario told him had given her the check. Inde ed, Rios stated that he "didn't even see the people." A pp. at 47A. According to Rios, he took the Andrade check f rom Rosario, photocopied the identification and gave Ro sario the cash, less a $20 fee. Rios stated that he did not a ctually 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 informe d him that the Andrade check had been reported stolen, he looked for the photocopy that he had made of the identific ation but
could not find it. When he informed Rosario about t he 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 w ith the testimony of a handwriting expert, Secret Servi ce document examiner Jeffrey Taylor. After comparing t he signature for Ana Andrade that appeared on the chec k with a known sample of Rosario's handwriting, Taylor tes tified that Rosario "probably" had forged the check hersel f -- 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 o n 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 th e magistrate judge, arguing, inter alia , that the evidence was insufficient to sustain a conviction.2 The magistr ate judge denied Rosario's post-trial motions. See United Sta tes v.
Rosario , Crim. No. 94-5050K-01 (D.N.J. May 9, 1995).3 On June 2, 1995, the magistrate judge sentenced Rosari o to eight months in prison on both counts to be served

___________________________________________________ ______________

2. Rosario also moved for a new trial on both count s based upon the magistrate judge's allegedly erroneous ruling on he r motion in limine

.

3. The magistrate judge had jurisdiction to serve a s 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 convi cted of
misdemeanor offenses.

4concurrently.4 At the time of sentencing, Rosario w as

already serving a one-year sentence for an unrelate d bribery conviction.

Rosario then appealed the magistrate judge's decisi on to the district court pursuant to 18 U.S.C. § 3402.5 T he
district court affirmed Rosario's conviction and se ntence in all respects. See United States v. Rosario , Crim. No. 96-277 (D.N.J. April 3, 1996). On this appeal, Rosario's p rimary challenge to her conviction is that the evidence of fered at trial was insufficient to support the jury's convic tion on
Count 1.6

The district court had jurisdiction over the crimin al 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 challen ge 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 governm ent and must sustain a jury's verdict if "a reasonable jury believing

___________________________________________________ ______________

4. Rosario was also ordered to pay restitution in t he amounts of $2,996.00 and $1,934.00 to the victims and to pay a ggregated special assessments of $50.00.

5. That statute provides:

In all cases of conviction by a United States magis trate 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 merit s of the magistrate's
in limine ruling because, by not testifying at trial, Rosari o 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).

5the government's evidence could find beyond a reaso nable

doubt that the government proved all the elements o f the
offenses." United States v. Salmon , 944 F.2d 1106, 1113 (3d Cir. 1991). Accordingly, "[a] claim of insufficienc y of the evidence places a very heavy burden on the appellan t." 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 pa ss, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely mad e or forged endorsement or signature;

shall be fined under this title or imprisoned not m ore 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 t he 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 willfull y.

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, sh e argues that Rios's testimony establishing that she possess ed the check was insufficient to corroborate the testimony of the handwriting expert that she probably forged the che ck.

As noted earlier, Taylor testified that it was "pro bable" that Rosario had forged the check. "Probable" is a term of

6art used by Secret Service document examiners. The

"probable" category falls exactly in the middle of the sixpoint spectrum between "positive identification" an d "positive elimination." Thus, handwriting experts w ill use the term "probable" to describe

times when the evidence falls considerably short of the "virtually certain" category and yet still points r ather strongly toward the suspect, i.e., there are severa l significant similarities present between the questi oned and known writings, but there are also a number of irreconcilable differences and the examiner suspect s that they are due to some factor but cannot safely attribute the lack of agreement to the effect of th at
factor.

Thomas V. Alexander, Definition of Handwriting Opin ions

, App. at 37A.

The government concedes that Taylor's testimony alo ne would be insufficient to sustain a conviction under § 510(a). The government argues, however, that Taylor's testi mony that Rosario probably forged the check, coupled wit h Rios's testimony that Rosario had given him the check, wou ld allow the jury to make the inference that Rosario h ad forged the check. Moreover, according to the govern ment, once the jury concluded that Rosario had forged the check, it could logically conclude that she had done so kn owingly 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 pro vided validation for Taylor's testimony that Rosario had probably forged the check.7

___________________________________________________ ______________

7. Once the jury was provided with enough informati on to conclude that Rosario had forged the check, it certainly could ha ve inferred that she acted knowingly and willfully and with the intent t o 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 fo rgery was established, inferences of knowledge and unlawful intention foll owed). 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.

7In reaching this conclusion, we are persuaded by th e

reasoning put forth in United States v. Richardson , 755 F.2d 685 (8th Cir. 1985) (per curiam) and United St ates 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 "pr obable" 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 "p robably" signed the check. This testimony was supplemented b y evidence that Richardson had access to a key to the victim's home, that she had made a deposit in the e xact same amount as the stolen check, and that her finge rprints were on the stolen check. In upholding the convicti on, the court concluded that this was "ample evidence to su pport
the verdict." Richardson , 755 F.2d at 686.

Similarly, in Rivamonte , the court upheld a check forgery conviction based on the following evidence: a handw riting 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 b ack of the check; and the payees' names were written on th e defendant's pre-encoded deposit slip. Rivamonte , 666 F.2d at 516-17. The court held that "a jury reasonably c ould
conclude that this evidence is inconsistent with ev ery 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 con vinced that the evidence establishing that the respective defen dants had possessed the check was of primary significance in those cases. Our conclusion is bolstered by the Ele venth 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 sho wing
that the defendant's wife had cashed the stolen che ck. The government offered no evidence that Henderson had e ver possessed the check. Distinguishing Rivamonte , the court
noted:

8Although 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 foun d on the check, Rios's testimony established that Rosari o was in possession of the check. Thus, Rios's testimony tha t Rosario possessed the check provided the same corroboration for the handwriting expert's testimon y 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 co nviction because accessibility of payee's mailbox to defenda nt provided corroboration for less than conclusive exp ert handwriting testimony).

In our view, because the evidence established that Rosario did, in fact, possess the check, the jury c ould have used that fact to corroborate the handwriting exper t's testimony that she had probably forged the signatur e on the check. While neither of these factors independe ntly would be sufficient to support a conviction, taken together they are sufficient to support the jury's guilty ve rdict.8

___________________________________________________ ______________

8. We are not persuaded by Rosario's attempt to cha racterize Rios's testimony as "exculpatory" for her. Using Rios's te stimony, Rosario implies that she merely unknowingly passed the forg ed check to Rios and then passed along the cash to the person or per sons who brought in the check. Rosario finds further support for her theory from Rios's testimony that she was "genuinely surprised" when h e reported that the
check was stolen.

As the district court pointed out, however, the jur y was not required to believe that Rosario made any of the arguably ex culpatory 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 inconsi stent with guilt. Simply stated, the jury had no reason to believe th at Rosario was being truthful with Rios. Indeed, the jury could have jus t as well believed that

9Finally, 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 insuffic ient 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 t ransaction was legitimate because Rios may have been less willing to cash the check
had he known it was stolen.

10NYGAARD, Circuit Judge , dissenting.

The government argues that the combination of wholl y ambiguous testimony from a handwriting expert and equivocal testimony from a witness receiving favora ble treatment from the government is sufficient to supp ort the conviction of Altigraci Rosario for passing a Unite d 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 f our elements beyond a reasonable doubt: (1) that the ch eck was a U.S. Treasury check; (2) that the check bore a forged or falsely made endorsement; (3) that Rosario passe d the check with intent to defraud; and (4) that Rosario acted knowingly and willfully. There was no direct eviden ce adduced at trial to satisfy the government's burden on elements (2), (3) and (4). Recognizing this, the go vernment 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 ha ndwriting expert, and Rios, the man who negotiated the stolen check, are sufficient to permit the jury to infer that Ros ario forged the check. Building on this inference, it then clai ms that the jury could draw the further inferences that Ros ario 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 g uilty, especially in light of the weak testimony from whic h these
inferences are drawn.

Jeffrey Taylor, the government's handwriting "exper t," could only testify that Rosario "probably" signed t he name
"Ana Andrade" to the back of the Andrades' check. T he trial record shows, however, that Taylor's testimony was even more ambiguous. Indeed, under cross-examination Tay lor
conceded that there were a number of "irreconcilabl e differences" between the Ana Andrade signature on t he 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.

11Significantly, Taylor also acknowledged on direct

examination that he "found no evidence that [Rosari o] wrote the remaining signature [Angel Andrade's] on that c heck." 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 w ould conclude that inferences drawn from such clearly ambiguous testimony cannot possibly satisfy the government's burden of establishing beyond a reason able doubt that Rosario forged Ana Andrade's signature o n 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 t he check. Rios's testimony, it argues, establishes that Rosar io both possessed and had the opportunity to forge the chec k, thereby allowing the jury to infer that Rosario did , in fact, forge Ana Andrade's signature on the check. By pres enting evidence that Rosario possessed the check and had t he opportunity to sign it, the government contends tha t it provided validation for Taylor's equivocal opinion that Rosario probably forged the check. In support of it s argument, the government relies primarily on two ca ses where courts affirmed forgery convictions based in part on testimony from a handwriting expert indicating that the defendant had "probably" forged the stolen check. S ee 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 o ffered only "slightly" more circumstantial evidence in Ric hardson
and Rivamonte than that adduced here, Maj. Opinion at 8,
the records in those cases demonstrate that there w as 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 t estimony was complemented by evidence showing that Richardso n had a key to the home where the check was stolen,

12Richardson'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 amo unt 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 preencoded 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 evid ence to establish any of these elements beyond a reasonable doubt, was forced to ask the jury to speculate that Rosari o 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 "pro bably" forged a stolen check in conjunction with evidence showing possession of the stolen check by the defendant con stitutes
sufficient evidence to affirm a conviction under 18 U.S.C. § 510(a)(2). Simply stated, there is no such baseli ne position established in the case law. Instead, Rich ardson
and Rivamonte suggest that an "expert" opinion that the defendant probably forged the check, coupled with
sufficient additional circumstantial evidence demon strating possession, willfulness, knowledge and intent to de fraud, 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 th e

13government. 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 fa ctual proof of the forgery element of the offense from wh ich 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 offe nse. As such, there is no conclusively proven fact of forge ry from which the government could draw inferences tending to
establish the other elements of the offense of conv iction.

My interpretation of the case law is supported by t he 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 ambigu ous handwriting testimony and circumstantial evidence t ending
to show that the defendant's wife had cashed the st olen 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 i t 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 base d upon the actions of his wife. Yet, it is apparent f rom the evidence that there was little else upon which to base a conviction. . . . Although circumstantial ev idence is testimony to the surrounding facts and circumstances of the point at issue, they must at s ome point connect, to allow the trier of fact to draw t he
inference that the fact asserted is true.

Id. at 1031 (internal citation omitted). The court the n proceeded to distinguish Rivamonte on the basis of the

14strength of the additional evidence offered by the

government in that case. As the Henderson court concluded: "In the present case, the additional evi dence, together with the handwriting expert's `probable' t estimony, 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 evi dence showing that Mr. Henderson possessed the stolen che ck as determinative of the sufficiency of the evidence. R ather, the
Henderson court reviewed the proffered evidence in its entirety and determined that there was insufficient evidence supplementing the ambiguous handwriting testimony t o permit a reasonable jury to conclude beyond a reaso nable 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 suf ficient evidence to affirm a conviction under § 510(a), the government speciously reasons that Rosario's convic tion was proper because Rios's testimony that Rosario possessed the check provided the same corroboration for the handwriting expert's testimony that the fingerp rint
evidence in Rivamonte and Richardson did. What this bit of forensic gymnastics neglects to explain, however, i s that the government's fingerprint expert was unable to ident ify any finger or palm prints belonging to Rosario on the A ndrade check. App. at 42A-43A. Thus, the government was fo rced 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 R osario forged Ana Andrade's name on the back of the stolen check. Rather than lend credibility to the ambiguous handw riting testimony offered in this case, the government's re liance 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 t he stolen check. Maj. Opinion at 8. I note, however, that the govern ment similarly failed to offer any evidence specifically relating to Mr. Henderson's intent to defraud, knowledge or state of mind.

15aside from Rios's testimony the government failed t o

adduce any

additional evidence to validate Taylor's equivocal conclusion that Rosario signed the stolen check. Lacking further additional evidence like that offer ed in the
Rivamonte and Richardson cases (e.g. , fingerprints, palmprints, pre-coded deposit slips), I fail to und erstand how Rios's testimony could possibly transform Taylo r'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 tes timony directly contradict inferences that the jury was su pposed to have drawn from Rios's testimony. For instance, on crossexamination Rios testified that Rosario did not kno w that the check was stolen. App. at 52A. Such testimony c learly undercuts the idea that the jury could infer that R osario 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 st olen check, but ignoring Rios's testimony in order to dr aw the inferences that Rosario had the requisite knowledge and state of mind necessary to support her conviction. Such inconsistencies further reinforce my conclusion tha t 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 suff icient to convict Rosario beyond a reasonable doubt. Handwrit ing analysis is at best an inexact science, and at wors t mere speculation itself. See , e.g. , D. Michael Risinger et al.

, Exorcism of Ignorance as a Proxy for Rational Knowl edge: The Lessons of Handwriting Identification "Expertis e" , 137 U. Pa. L. Rev. 731, 739 (1989) (reporting that "[f] rom the perspective of published empirical verification, ha ndwriting identification expertise is almost nonexistent"). A s 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 c an

16satisfy the government's burden of proof. According ly, I

would reverse Rosario's conviction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

17