1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"United States v. Rosario" (1997). 1997 Decisions. Paper 154.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/154
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 sixpoint 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 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 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 crossexamination 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 

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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

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