Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge. HONORABLE J. JOSEPH SMITH, HONORABLE WILLIAM H. TIMBERS, Circuit Judges
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
1. Considered in the light most favorable to the Government, e.g., United States v. Ruffin, 575 F.2d 346 (2d Cir. 1978), the evidence was sufficient to establish that appellant knowingly possessed a check that had been stolen from the mails, 18 U.S.C.§ 1708. Since the fact of mailing was stipulated, the Henriquezes' testimony that they never received the check sufficed to prove the element of theft. United States v. Robinson, 545 F.2d 301, 304 (2d Cir. 1976). Moreover, considering the inferences available from appellant's false exculpatory statements, see, e.g., United States v. Parness, 503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105 (1975), and his possession of recently stolen property, see Barnes v. United States, 412 U.S. 837 (1973), the jury could rationally have concluded that Marmolejos knew the check was stolen. Barnes, supra, teaches he need not have known it was stolen from the mail. Id. at 847.
2. Similarly, there was sufficient evidence to establish knowing utterance of a forged instrument in violation of 18 U.S.C. § 495. If, as the jury must have found, Marmolejos knew the check was stolen, then he also knew he did not have authority to sign the Henriquezes' names to it. Thus he knew his endorsement was a forgery and Robinson, supra, 545 F.2d at 305 n.6, establishes that the jury could have inferred the requisite intent to defraud the United States.
3. Read as a whole, United States v. Gentile, 530 F.2d 461 (2d Cir.), cert. denied, 426 U.S. 936 (1976), the charge on knowledge was not unbalanced. Neither United States v. Morales, 577 F.2d 769 (2d Cir. 1978), nor United States v. Bright, 517 F.2d 584 (2d Cir. 1975), required specified words or phrases to ensure a balanced charge, see, e.g., id. at 588. Judge Tenney's direction that the jury must find that appellant acted "deliberately and voluntarily as opposed to mistakenly or accidentally" was sufficient protection against a conviction based on foolishness or carelessness.
4. Appellant's claim that the prosecutor's summation was prejudicial is without merit.