UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 28, 1972.
UNITED STATES OF AMERICA, APPELLEE,
LEONARDO TORRES DELGADO, APPELLANT
Friendly, Chief Judge, and Smith and Oakes, Circuit Judges.
Author: Per Curiam
Leonardo Torres Delgado appeals from a judgment of the United States District Court for the Southern District of New York of conviction on trial to the jury (Milton Pollack, Judge) on two counts of uttering forged United States Treasury checks, in violation of 18 U.S.C. §§ 495, 2 and two counts of possession of the same checks knowing they had been stolen from the mail, in violation of 18 U.S.C. §§ 1708, 2. Delgado claims that the only witness who testified to his possession and negotiation of the check which was the basis for two of the four counts was incompetent to do so, lacking personal knowledge of the transaction.*fn1 We disagree and affirm the conviction.
The witness, Albert Cohen, testified that he received the U. S. Treasury check for $126.82, payable to Mike and Casilda Morales, from his delivery man, to whom Delgado had given it in payment for merchandise.*fn2 The check bore several endorsements, the last of which was "Blackie," appellant's nickname.*fn3 Cohen, a fruit and vegetable wholesaler, testified that it was routine practice in his business to require the delivery men to accept no checks in payment for goods unless either the customer or the employee wrote the former's name on the reverse of the check. Given this habit or custom of the business, appellant's name on the check was circumstantial evidence of negotiation by him.*fn4 United States v. Oddo, 314 F.2d 115, 117 (2d Cir.), cert. denied, 375 U.S. 833, 84 S. Ct. 50, 11 L. Ed. 2d 63 (1963); McCormick on Evidence § 162 at 343.*fn5
We note that even were the convictions on the two counts deriving from this transaction reversed, the resentencing which appellant requests would not be appropriate. His twelve-month sentence was well within the statutory maximum of five years under section 1708 and ten years under section 495. In light of the numerous transactions in stolen checks, extending over a considerable length of time, revealed by the evidence, this court is "firmly convinced" that the absence of these two counts would not have affected appellant's sentence. United States v. Febre, 425 F.2d 107 (2d Cir.), cert. denied, 400 U.S. 849, 91 S. Ct. 40, 27 L. Ed. 2d 87 (1970); United States v. Marino, 421 F.2d 640 (2d Cir. 1970).