-: SJC-13474: Commonwealth v. Rochelle Scordino
and SJC-13486: Commonwealth v. Dominique M. Oliver.
-: Okay, Attorney Yeshulas.
-: Thank you, Chief Justice Bud.
Good morning.
May it please the court,
Laurie Yeshulas for Rochelle Scordino.
Your honor, this case is significant,
because we are faced with the question of whether,
in an otherwise unremarkable bank transaction,
the Commonwealth's presentation
of the account holder's testimony
that she does not know the payee
and does not owe her money count as sufficient evidence
of circumstantial proof beyond a reasonable doubt
to support the conviction of the crime of uttering.
The appeals court answered this question no,
and for good reason,
because the account holder's testimony does not give us any
insight into the payee's knowledge or intent.
In fact, it only gives us insight
into the account holder's knowledge.
The Commonwealth cannot rely on proof
beyond a reasonable doubt
on an account holder's statements of unfamiliarity,
and that's what the Commonwealth asked this court to find.
The Commonwealth relies on cases
that were cited in the concurrence in the Oliver case
to support its proposition,
but an actual clear and careful understanding and reading
of those cases suggest otherwise.
In the Green case,
cited by the concurrence in the Oliver case, that case,
there was other indicia of circumstantial proof
of knowledge,
including the defendant's admissions
that he only did it once,
his admissions he was unfamiliar with the company
on whose check it was written,
and those apply additional circumstantial evidence
of knowledge.
In the other case that is cited
by the concurrence in Oliver.
-: Can I ask a question though?
So, anytime, someone, let's tell do a hypothetical,
someone steals a check
and writes themself a, you know, make themselves the payee,
they're off the hook, right?
There's no way of proving this.
-: So there are other ways and there are cases
that talk about maybe handwriting exemplars,
where you come in
and have someone do a handwriting exemplar.
-: So you've got a good hand-writer
who reads the name carefully.
-: And so, in that case,
I would suggest
that the Commonwealth do a further investigation on how,
you know, it's the Commonwealth's burden to explain
how the check passed from the actual account holder
to the payee.
-: Who is gonna end up with...
The Commonwealth's always gonna be able
to prove the account holder doesn't know the person.
It's also gonna be showing no other names are on the list,
you know, and no other endorsements.
But doesn't this gonna always result in sort
of a free pass to steal checks?
-: I don't agree, Justice Kafker, and for the reason is,
we don't operate under presumption, right,
that someone giving a third party check is going to,
it's going to be a fraudulent check?
We operate that this is a negotiable instrument,
and we can negotiate it freely.
-: Totally agree with that,
but usually you know someone
in the list of endorsements, right?
The example that Justice Rubin gives in his,
about an attorney who got paid.
You know, his client owes him money,
and the brother of the client pays.
That's not our situation.
Normally, what we've got is just this,
which is someone's stolen a check and written something,
endorsing it to them.
-: The problem with the Commonwealth's evidence
in this case is we don't know who stole
or forged the check because...
-: I agree.
It's hard.
-: And I think this is like the Pacheco case,
which is the case that cited in, it's 128,
cited in my brief, that case,
and we are referring to the attorney, in that case,
the attorney receives a check.
It was misrepresented to her by her client,
and that scenario happens all the time.
Third party checks are passed all the time.
-: They don't know someone in the chain of title, right?
I skipped my UCC class, so I'm using the wrong terminology.
-: So, you know, for guidance,
we can look at cases in other jurisdictions.
The Heath v. State case, which I do not cite in my brief,
but the appellant
in Oliver states it is 382 Southern II, 291 at 392.
It was a Florida District Court of Appeals case.
In that case,
the person actually impersonated the account holder.
There was an impersonation.
So when the person went to cash the check,
he had no real way of knowing
that he received the check from an impersonator.
-: I'm trying to figure out what to do
in the more common, harder case.
Someone writes the right name down, steals the check,
but they're not wearing a Groucho Marx, you know, outfit.
You know, they're just stealing and writing and endorsing.
-: With third-party checks,
and I think the appeals court talks about this,
are very common.
In fact, you know, people often receive third-party checks
for paying for services and goods for other people.
Someone could pay for someone's...
-: How do we know that, counsel?
I'm sorry to interrupt your answer,
but just, you're stating that as a fact,
that people often receive third-party checks.
-: So, let's just take an an example of when the attorneys,
one example.
Another scenario could be someone paying
for somebody's car-
-: I can come up with scenarios.
How do we know that this is a common scenario?
You know, is it just, we just know this.
I think we can take judicial notice of it, or...
-: So, banks generally accept third-party payee checks,
and it happens all the time.
This is something that's not uncommon.
Generally, and I think the appeals court talks about it, is,
we generally don't know, sometimes,
when we receive a third-party check to pay
for some good or service by someone else,
a great aunt or a grandmother or a brother
or someone paying for the services or goods
for someone else.
It happens quite frequently, and it's legal.
There's nothing criminal about it, and it's allowable.
-: What's the basis for your statement
that it happens quite frequently,
just your common knowledge?
I don't know.
I'm not disputing it.
It's not my experience, but I'm wondering, is it yours?
-: If I could speak outside the record,
I have received checks.
I have had other people pay for things for me
on other checks, you know, in college.
-: You've received checks
from complete strangers that, not...
Okay, so I understand when grandma sends you a check.
You know grandma.
Have you received checks from complete strangers?
-: So there is a scenario in another case
that I would cite to,
is the Griffin case that's also cited
in the appellant's case.
That's 908 Southwest II 624.
That's a case where someone steals a checkbook
and impersonates the payor.
And in both of those, in the Heath and Griffin cases,
they talk about this scenario
where someone's impersonating that account holder.
The Heath case is a good example
of someone who meets somebody,
impersonates the account holder,
and receives a check for goods.
And in that case,
the payee would have no way of knowing that the person is,
you know, impersonating the account holder.
-: So the answer to justice Kafker's question is,
no, you don't often get third-party checks.
-: Me personally?
-: I think that's what he asked, yeah.
-: I actually have in scenarios,
not personal checks, but I received, you know,
payment for something from someone I didn't know.
It's perfectly-
-: Counsel, could we just go back to this case for a second?
Why isn't this just a sufficiency case?
-: It is a sufficiency case.
-: Exactly.
Why isn't it sufficient?
I mean, you're saying we need plus, okay?
So, if you have a situation
where you've got an account holder saying,
"I have no reason to have given this person this check
for any amount of money."
The person negotiates the check.
I mean, why isn't that just enough to say,
"Okay, there were better sufficiency cases,"
but but why isn't that enough
to satisfy the Commonwealth's burden?
-: Because the Commonwealth has
to show knowledge of the payee.
By showing knowledge of the account holder,
you don't have any insight
to how that payee
received the check. -: You never do though.
It's embedded in our jury instructions.
Very often,
we can't tell what's going on in somebody else's mind.
Hold on a minute.
We can't tell what's going on in somebody else's mind,
so we do this every day by circumstantial evidence.
So, if you walk into your home,
and I happen to be sitting at your table eating something,
and I have no reason to be there,
and you haven't invited me, and you say,
"I don't know this person.
I didn't invite them into my home,"
and you're telling me that that's not gonna be enough
to sustain a B&E?
-: I think the problem is there's a difference between...
We don't know who stole and forged the check, right?
So, all we have is,
the account holder doesn't know the payee,
but we don't know the circumstances surrounding
on how the payee received the check,
much like the attorney in the Pacheco case.
The problem is it's the Commonwealth's burden to bridge
that gap, and they can't resort to unreasonable inference.
It's not a reasonable...
-: You're saying it's an unreasonable inference,
but there is a world that somebody might say,
a finder of fact might say that's a reasonable inference.
-: I don't think so, your honor, respectfully,
because you'd have to pile inference.
Just because the account holder doesn't know the payee,
then the payee must know it's fraudulent.
That's the leap.
That's the piling of inference upon inference,
and you cannot get there just
because the account holder doesn't know.
Because in Ms. Scordino's case,
there's three people living in the house,
Ms. Adams' house, with her.
They all had access to this checkbook.
There's been no break-in.
These two people are unfamiliar to each other.
So, what happened in between?
And it was the Commonwealth's burden to prove what happened
in between, prove those circumstances to show knowledge.
If we do not do that,
what we end up doing and the danger
that the appeals court talked about in its decision,
is we end up uttering into a strict liability offense,
and all the Commonwealth will have to do
in those cases is bring the account holder in.
Who cares what happened in between?
And that is just not enough to show knowledge.
It's the Commonwealth's burden to show knowledge
of the payee, and in this case, they can't do it.
There's nothing in between.
-: But just following up on Justice George's question.
Isn't it a case-by-case situation
where we look at what the evidence is
and we look to see whether or not there's enough
to say there's intent here?
-: Correct, it's always that way in sufficiency cases.
The problem is, and this court has the authority to say so,
this isn't enough.
The Commonwealth presents it case.
Nothing remarkable about the bank transaction.
-: No, I understand, but-
-: Only the testimony of the defendant.
-: And so, what we do is, and what the jurors do
or the judge,
you look at what's there on a case-by-case basis.
-: Correct, we always do that.
However, I think that what this court should find is that,
just relying on the account holder's testimony alone
is insufficient to get to the knowledge of the payee.
-: Depending on what the account holder says.
-: So, if there are more circumstances around it,
if the Commonwealth somehow can, you know,
find out who stole and forged the check, sure.
But we don't have that here.
It's silent here, and that's the problem.
Judge Gaziano: Can I ask the last question?
-: [Chief Justice Budd] Yes, please.
-: Can you tell us, from your research,
whether or not there's a majority rule, minority rule
as you looked across the states?
-: So, I actually looked at the cases
that Johnson v. State,
which is the case that is relied
on the concurrence in Oliver.
And if you look at those cases,
it talks about all the different factors.
The Griffin case is another case
that talks about all the different factors,
which is enough to show circumstantial proof of knowledge.
Some of the things that the cases rely.
-: But I've read the cases.
But have you looked to see whether or not,
when we have our law clerks look at it,
if there's a rule that 49 states use?
Do you have a breakdown for us?
-: I didn't find that breakdown,
but what I did find is,
I don't think there is one case out there that says,
"The account holder's testimony is enough."
No, I'm asking you for that breakdown.
You haven't done that research?
-: I have not.
-: All right, I'm gonna ask the counsel that question too.
-: Okay, thank you.
-: Oh, sure, a question, sorry.
Why is it not a fair inference that the jury might make
that if the account holder doesn't know the payee,
the defendant, that the defendant should have known?
-: [Attorney Yeshulas] I'm sorry.
I didn't understand this question.
Could you ask that again?
-: So, the testimony
is the account holder doesn't know the payee.
Why isn't it a fair inference
that the jury might draw that the payee knew
that the account holder didn't know them?
-: And I think that's the whole point is,
there is no evidence as to the payee's knowledge and intent.
We only know the account holder's knowledge.
There's no insight into the payee's.
And again, it could be an imposter scenario,
it could be a third payee type of scenario.
The check is stolen and forged
and someone representing themselves
to be the account holder.
So I think in order to get there,
you have to pile inference upon inference.
Just because the account holder doesn't know the payee,
doesn't recognize their name,
therefore we can presume the payee knows it's fraudulent,
that's too much of piling inference upon inference
upon inference,
and the evidence just isn't enough to get there.
-: [Chief Justice Budd] Okay, thank you.
-: Thank you
-: Attorney Daniels.
-: Good morning.
And may it please the court,
Attorney Josh Daniels for Dominique Oliver
in the other case.
I'd just like to jump in where the discussion left off.
First of all, Justice Gaziano, to your question,
I have not done a 50-state survey.
I know that there is an ALR annotation that's quite old,
from like 1946.
I can get that for you if you want.
Judge Gaziano: We'll do that, and I appreciate that.
And this case law, it's quite old as well.
-: The thing I would say about the case about a lot
of the case law is,
a lot of the cases collected, for example,
in that ALR annotation,
long antedate sort of our modern notion since the '70s,
since Winship and those cases,
about how we allocate the burden
of proof under the 14th Amendment.
And so, I think we need to be very careful
in looking too far back in the case,
like the older the case is,
I think there's a real danger of digging around
in that old soil,
because a lot of those cases are bringing
that old soil from England where, under the common law,
the government could more freely shift the burden
onto the defendant.
So that's just a point I wanna give to your honor
as you're doing your research.
Justice Gaziano: I appreciate that.
Thank you.
-: So, picking up where the discussion left off, I think,
Justice Georges, as you pointed out, these cases are,
and I think the Chief Justice also made this point too,
that these cases are often done,
circumstantial evidence is all
about taking the circumstances as we find them case by case,
and I think that's right.
I think the big problem with the Commonwealth's approach
and the approach that Justice Singh took
in her concurrence is,
the relevant circumstances that shed light
on the defendant's knowledge are usually going
to be the circumstances under which they come
by the check
and under which they take possession of the check.
And that's really what gives us the most visibility
into intent.
-: But the defendant doesn't have to do anything.
-: [Attorney Daniels] Correct.
-: And that creates the issue, right?
Because the Commonwealth
isn't gonna know how the defendant got a hold of the check
and the defendant doesn't have to testify,
so that makes this difficult, right?
-: Right, and I think...
Well, to finish my other thought before I take that on.
So, I think the problem with,
with relying solely on the account holder's disavow
of the check, and saying, "I don't know this person,"
is that all it really tells us is
who the defendant didn't get the check from,
and it doesn't really shed any light on
how they did get the check, who they got it from,
or what that person told them,
which is really what gives us visibility
into their knowledge.
To take your point, Justice Kafker,
the second best window we have into
that I think are the circumstances that happen at the bank,
at the teller counter, or in the investigation that follows.
I take your concern that there are going
to be some cases that the Commonwealth can't win.
I think that's accounted
for when the Supreme Court set the allocation
of the burden of proof.
I do think in many cases, though, you know,
you could have done more.
There may be cases where there is no more,
but there may well be lots of cases
where there is more and they just didn't bring it in.
In neither of these cases, did the bank teller,
who actually took the check testify.
That bank teller could have testified about,
"Oh, yeah, this person was really,
really nervous as they were cashing the check."
Usually, when you pass a forged check,
you get a call about it later, and they say,
"Hey, that check you gave us was forged.
What's up?"
And whatever you say or if you, you know,
hang up the phone on their ear, that can be introduced.
-: Who gets that phone call?
Who's getting that phone call?
-: The defendant, often.
So, you know,
that was, for example, the case in Catania, you know.
The bank calls up.
Sometimes it's the police who call up or come knocking,
and either they tell a story that's not believable,
but in any case anything they say can be brought in.
The fact that they slammed the phone
on their ear can be brought in or slam the door
in their face.
Justice Gaziano: Can you-
-: I'm sorry, Justice Gaziano, please.
-: Okay, thank you.
Can you remind me...
What this strikes me as similar
to are the receiving stolen property inference cases
that get you over the rail
when you have recently stolen property,
and we've drawn inferences in those cases?
I think that's still a good lie.
That's my memory at least.
I might be wrong.
-: Yeah, there's a permissive inference or presumption.
-: No, get you over the rail,
and then it can be rebutted.
So, how are these cases different from that?
-: So, functionally,
I don't think it really is a different analysis.
As I understand,
the way that this court is talked about it-
-: Yeah, the analysis is fine,
but how is the inference logical
in the receiving stolen property case, but illogical-
-: The point I'm trying to make is
that it may not always be logical
in a receiving stolen property case.
I think, you know, if you look at Littles,
and the way that you discuss permissive presumptions,
really it's functionally the same analysis
as whether an inference is an available one
for sufficiency purposes.
It's case and evidence specific.
-: In my memory, I haven't looked at in a while,
but we've said
that the receiving stolen property inference is valid.
Correct?
I might be wrong on that.
-: I don't know that it's declared valid
across every single case on a categorical basis.
I think you have to look at the specific facts
and the specific evidence presented before you can...
-: Again, this is off the top of my head,
but assume for the sake of argument
that that's a valid presumption that gets you over the rail.
Is this the same situation here?
-: Assuming that assumption, which I don't take...
-: We're gonna put a bookmark on that,
but assuming that assumption, please tell me.
-: I mean, I think, I think there is an analog there.
Again, I don't think that assumption is correct,
but you'll take a look at that.
I think I've taken a swing at every pitch
from the last inning that I wanted to, and in my last time,
I just wanna talk about the two facts
that the appeals court in Ms. Oliver's case relied on
for saying that this was different than Ms. Scordino's case.
I actually don't think
there is a meaningful difference here.
So the most important fact that the appeals court relied
on was the presence of this extra loop in the signature,
which apparently nobody saw.
I think, you know, before you can get from the existence
of that mistake in the signature
to a reasonable inference of guilty knowledge,
you would have to be able to reasonably conclude
that the defendant, in fact, did notice that,
not just that she might have noticed it,
because this isn't an inquiry notice
or constructive knowledge standard.
And where, even the bank teller, who is, you know,
the one person in this entire world who's supposed to be
on the lookout for these things,
there's no evidence that she saw anything there.
-: The bank teller's not gonna have any insight
unless the person is a terrible thief
and is, you know, sweating profusely and in a panic.
I mean, I understand your other point
that the police can follow up,
and that, that may be different,
but the bank teller's not gonna have any useful information.
-: I mean, often,
at least I remember doing this when I opened a bank account,
I filled out a signature card,
and this wasn't that long ago, you know.
-: Opening an account.
When you're just cashing your check,
they're not doing a lot with you, right?
-: I mean, I guess my only point is,
the bank teller is the one person who is supposed
to be on guard for these things,
and if even they are not seeing anything wrong,
I don't know how it's reasonable to conclude
that my client probably did.
Particularly, when, you know,
what we're talking about is the drawer's signature
rather than...
-: Isn't that just something that you would argue
to the jury then?
I mean, it seems like you're slightly differently positioned
than in the prior case in that,
here there is something wrong on the face of the check,
and I'll grant you, it's an extra loop,
and maybe, you know,
the average person might not have seen it,
but isn't that something that the jury could infer,
that the client did see, and therefore,
would be on notice that this was not hers?
I mean, I think it could be a jury argument,
but before you get to the jury argument,
the judge has to decide whether the case has enough
to send it to the jury, whether-
-: Well, isn't that part of it?
Indulging all reasonable inferences
in the favor of the Commonwealth,
this one tips it over the edge?
I'm pointing at the check that I have there.
-: The point that, like, almost any sufficiency argument
could be a jury argument, I think, you know,
that way of looking at it essentially leads to,
no case is insufficient,
because you could always make a jury argument.
-: Well, no, I understand the standard.
My question is that, you know,
there's this fact that Eileen is spelled with two L's
instead of one L.
And given that,
not only do we have the account holder saying,
"I don't know Ms. Oliver,"
we also have, on the face of the check,
something that looks, you know, somewhat different.
-: I mean, if, in fact,
she noticed it, and that's the big question, and I just...
Given how subtle this particular error is,
it's not as though, you know, Eileen begins with an AY.
You know, it's a very subtle mistake
that would require you to, essentially,
count the number of loops and compare it
to the printed portion.
Who knows how much scrutiny people actually give
to the drawer's signature as opposed to their own name
or the amount of the check?
I don't think that's enough,
and that was the most important fact
that the appeals court relied on.
The other fact,
I just wanna make one quick point about Catania.
So, the Commonwealth analogizes the second fact,
essentially, which is,
this is a large check and it's being cashed
to the situation in Catania.
I think in looking at Catania,
you really do have to take into account inflation.
I wish I had thought of this when writing my brief,
but you know, in July of 1974,
when that check was presented,
$9,000 would've been the equivalent of, like,
$46,000 in January of 2019.
So, you know, in terms of using Catania as a baseline
for, like, what is a large enough check
to make it more than unremarkable,
I think we're in a different order of magnitude.
The other thing I would stress is, you know,
the bank is in the best position
to determine which transactions are remarkable
or unremarkable.
If you recall, in Catania,
the check was so large
they wouldn't actually let him cash the whole thing,
and there's nothing like that here.
I think that's another important difference.
I don't want to overstay my welcome again,
but thank you very much for your time.
-: Thank you.
Okay, Attorney DeBlander.
-: Good morning, your honors.
And may it please the court,
Assistant District Attorney Daniel Michael DeBlander
for Middlesex on behalf of the Commonwealth.
Turning immediately to the sufficiency
of the evidence argument primarily in Scordino,
the Commonwealth asks this court to reverse the judgment
of the appeals court and find that,
when taken in the light most favorable to the Commonwealth,
as this court must do,
that a rational trier of fact could find
beyond a reasonable doubt all of the elements of the crime
of uttering a false check here,
including that of knowledge and intent of fraud.
-: But all we have is testimony as to the lack of knowledge
of the account holder of the defendant.
How does that translate into anything
about the defendant's knowledge?
-: Right, your honor.
So this is obviously, as in most of these cases,
circumstantial evidence of that knowledge.
It is our position that
where the Commonwealth introduces that testimony
of the victim, where that they do not know the defendant,
the defendant does not have any reason
to expect payment from them,
that they did not sign the check,
whereas here in both these cases,
the checks were found to have been stolen,
that it is ultimately a question of fact for the jury,
or in the first case the judge as finder of fact to,
you know, infer from that transaction
that this individual would have no reason
to expect payment from a total stranger.
So, you know, there are other factors
that may be present in other cases here,
but it is our position that that is a permissible inference
for the finder of fact.
-: But we don't even know whether...
I mean, three other people live with this woman, right?
A.D.A DeBlander: Correct.
-: We don't know whether one of them stole the check, right?
So the fact that she doesn't know the person who cashed it,
one of her three housemates may have stolen the check
and written the check to this person, right?
That's the thing that makes this difficult, right?
You haven't established who stole the check.
She didn't steal the check, right?
She has probably no access to the home.
-: That's right, your honor.
So we do not have any evidence here
of the defendant actually having stolen the check.
We do have some testimony as to individuals who did live
with the victim account holder here.
However, you know, it is for the trier of fact to-
-: You need some information on that.
Do you need some information, as your brother argues...
Okay, the police went to her
and she didn't give any explanation of
how she got ahold of this...
Do you need something else is what I'm trying to figure out.
I understand this is a common situation.
-: Sure, it it is our position
that that alone is sufficient here.
-: You could have gone a couple of steps further, right?
-: Yes, your honor,
and often these cases do involve
at least some other element.
I think the baseline position here,
and I think it is a basic empirical question,
that a rational trier of fact could consider,
is that when an individual, you know,
we do have to introduce the testimony
of the victim account holder,
that they have no connection with this individual.
I think a reasonable individual who would be cashing a check
would know that they are not owed a substantial sum
from a stranger, someone who-
-: Let me give you a hypothetical.
So, you've got an elderly person living with a caretaker,
and the caretaker steals the checks,
and you know, writes checks to people.
The fact that the elderly person
doesn't know the person getting the checks,
that's enough to prove that the person
who was cashing the checks knew they were fraudulent?
I'm concerned about that, you know.
-: I understand,
and I think the problem that you're alluding
to here is something that my brother and sister referred
to as sort of this,
making this a strict liability offense.
And as it was mentioned in Scordino-
-: Do you need some more to draw the necessary inferences?
Do you need, as in the other case,
the misspelling of the person's name?
Do you need something else, or is this enough?
I honestly don't know.
-: I would suggest that it alone is sufficient,
and that I would point to at least not many...
To address an issue that Justice Gaziano had raised,
so the Commonwealth has not done a 50-state sort of survey
of the law in this area.
I think that my brother makes a number of good points
that more recent cases are more probative of this
and not all jurisdictions have either addressed
and very few have addressed this exact issue
of sufficiency alone on the testimony
of the victim account holder.
There is often something further that's under consideration.
That does not, from the Commonwealth's perspective,
mean that that is not something
that can be considered sufficient.
I would suggest that the best case
to consider is Stacy v. Williams, the Utah case,
where it was drawn on the account of a business check.
I'm not sure that
that necessarily makes any difference here.
But the basis of the-
-: There were three checks all told.
So the defendant had, in his or her possession,
three or four, I don't remember,
but it wasn't just the one forged check,
and that seemed to weigh in the Utah decision.
-: I think the ultimate finding,
and to quote at least some portion of that,
I think the most relevant thing for the court,
there was the testimony of the victim
that he was not employed,
that he had no reason to know or expect payment here.
It's true there may have been more checks,
but I think the fundamental point being made by the court,
if I can read from part of their finding.
The defendant presented no evidence
to controvert the logical inference
which could be drawn by the jury that without explanation
as to where he got the check-
-: You said that the defendant doesn't have to do anything.
-: This is true and I think-
-: No, no, of course, no, your honor.
So, to address that point here,
the defendant need not, obviously,
testify or introduce any direct evidence of the fact.
-: That's why I found the Utah decision less than persuasive,
because they seemed to have shifted the burden
and the facts were a little different.
The defendant was in possession of three stolen checks
with no explanation.
I didn't see any,
and it doesn't sound like you have found any,
whereas this bare minimum is enough to take something
to the jury.
And maybe, you know, it doesn't say nothing.
It does say that these kind of cases are insufficient.
-: I would suggest...
So, I do agree with your point
that there is no one direct case from a foreign jurisdiction
on point where this is the sole evidence
that the court has considered.
I would suggest that a number
of the foreign jurisdictions
in the cases that we cite in our brief
at least consider that as some evidence.
So, the question here is more is,
is that baseline sufficient?
I would suggest that, you know,
it is ultimately an empirical question
for this court to decide.
-: So, your research has uncovered
that most states require some sort of a plus factor.
-: It's not a term I would use or that is present
in the case law, but to extrapolate, yes.
I would suggest that that is, frequently, they are present.
I would suggest, actually, that, here,
I mean, really Scordino is the sort of baseline case
that we're considering.
I would suggest that-
-: Amount?
Remind me the amount in Scordino.
-: $950. -: The other case was
-: 3,600, your honor.
-: $3,600 is a lot to cash.
It has to be given in hundreds, right?
Is that a plus factor?
The number itself, you know...
Walking out with $3,600 in cash, it seems a little unusual.
-: I would suggest that a trier
of fact could consider not only the amount at issue,
which, you know, $900, $3,600,
we've talked a little bit,
and my brother opined about sort of the history of,
like, with inflation.
So, taking into account some changes over time,
I would also suggest the score could consider that...
I mean, taking something out in cash
in those amounts these days when most, or more frequently,
transactions are just conducted either online
or in other capacities,
is something that someone could consider,
whereas here,
a substantial sum in the amount of $900
or $3,600 is taken out immediately in cash.
It is a factor that, in addition to others,
a trier of fact who consider,
because it provides the defendant
with immediate access to the funds and a substantial amount.
-: But when you say the trier of fact could consider,
there were a lot of these cases,
these othering cases in the community courts,
and if you focus on Ms. Scordino's case,
none of what would be open
to the defendant is evidence, right?
So on cross-examination of the account holder,
you don't know her,
you don't know whether or not somebody gave her the check
or that this was, all of that stuff is impeachment.
It's not evidence.
The argument that, hey,
they've presented no one to tell you
that she didn't get it from some third party.
That's not evidence.
So, all you'll have is just the account holder saying,
"I don't know this person."
If we're not gonna take a categorical approach,
how does this get over the hump in Ms. Scordino's case?
I know all Oliver's case,
there's these other things that we can talk to.
But just, in the Scordino case,
how does this get over the hump?
-: Thank you, Justice Georges.
I would would suggest
that the court could also consider this issue
of immediate cashing.
I know that the Scordino case,
the defendant was actually cashing this at her own bank,
but that happened to also be the bank of the check
of the victim account holder as well.
So, it is at least some other factor
that could be considered.
-: That people would prefer
to cash the check versus depositing it?
-: That where a defendant is cashing a check
that has later been shown to have been stolen,
not necessarily shown or proven at trial by the defendant,
that that gives rise in the mind of a rational trier of fact
of something untoward that they consider
in addition to the evidence of the testimony
of the account holder.
Justice Kafker: So, to cash a check
at your own bank is suspicious.
Why would that-
-: I mean, I think she would have
to be cashing it at this bank regardless,
because it was also the bank
at which the victim account holder did their banking.
Justice Kafker: That sounds like a total wash.
There's no significance to that, right?
-: I think it's the taking it out in cash that
that could be considered.
-: Why?
Why is taking something out
in cash at all indicative of knowledge?
-: It provides some, you know, immediate access to funds.
-: Some people need immediate access to cash.
-: I understand, your honor, yes.
And I think that,
this may be not as strong a case as taking out $3,600
in Oliver in immediate cash, but it also...
-: Can I ask you, on Oliver, if we're gonna pivot to that,
why is that extra loop enough
to push us over the edge where, you know,
assuming Scordino does not?
-: So, I think the Oliver Court correctly notes
that it is reasonable to presume that an individual
who is cashing a check for the amount
of $3,600 will have reviewed the check.
I think it's also obvious that they had
to have at least looked at the check here.
Ms. Oliver needed to know the bank that she was going to
to cash it, that it was being drawn on.
So some review of the check-
-: Does the error matter, right?
The extra loop in Eileen is different than, you know,
if her name was spelled differently, you know,
as your opposing counsel pointed out.
-: It certainly allows a trier fact to note
that there's something extra that's a bit untoward here.
This check, it was stolen.
It is not the signature of the victim account holder,
and it is very clearly not that signature,
because it does contain this extra loop.
-: Counsel, excuse me.
Am I not correct that no one
during the entire litigation of a trial over the uttering
of this check noticed the extra loop?
-: At the trial, it is true,
that this was not mentioned directly
by the prosecutor.
-: It was not mentioned, correct?
-: Correct, your honor.
-: So you are arguing that it is a reasonable inference
that this woman necessarily examined the signature
when the lawyers who were trying a case
over whether this is a false check, did not notice the loop?
-: Your honor, what I'm suggesting is rather that,
given the presence of that extra loop here,
this is something the trier of fact who were encouraged
to consider the signature both on the front
and back of the check would have had at their disposal
in considering the disposition of this case.
-: I agree with you that a trier
of fact could extremely reasonably look at the loop
in deciding whether Eileen really signed the check,
but we're talking about something different,
which is whether there is sufficient evidence
of the defendant's knowledge that this was a forged check.
So can you please explain why it is reasonable to assume
that a person, and we're talking about,
you used the word empirical before,
and I think that's a good word here,
because we're sort of debating,
what do people do with checks?
And so, can you explain the basis for your argument
that it's reasonable to assume
that everyone in this courtroom, when we deposit a check,
we have looked at the signature and the spelling?
-: Sure, your honor.
So I would suggest that it is a number of factors here
that we are asking that be considered together,
not just that everyone always reviews the signature
on a check that they're depositing.
Here, this is a check from an individual
that the account owner has testified,
they do not know this individual.
So, we've established
that this is a stranger cashing a $3,600 check
on an account.
-: Oh, sorry, if I may interrupt you there?
So, there's another empirical question.
So, I'm sure you'll agree with me,
there are people who do not have bank accounts.
Is that correct?
A.D.A DeBlander: Correct, your honor.
-: And they're entitled to cash checks
that are given to them, correct?
A.D.A DeBlander: Correct, your honor.
-: So is it reasonable for a fact finder
to assume that it is necessarily suspicious
that a person cashes a check?
-: Not necessarily, your honor,
but here I would suggest that something,
an extra factor that can be considered is sort of,
this was discussed a bit earlier as well,
sort of the case law around receiving stolen property.
So these checks at issue are not just checks
in the normal course.
They are checks that were established at trial
to have been stolen,
not necessarily established as, like,
stolen by the defendant.
And so, I would encourage this court
to look to some of the case law around that
and the jury instructions on receiving stolen property
as well, which allows for permissible inference.
Justice Gaziano: That's still good case law, correct?
-: Sorry, yes.
Yes, your honor.
And so, whereas here it-
-: Is the analogy apt, I wonder?
I'm sorry Chief, if I could continue.
-: [Chief Justice Budd] No, go ahead.
-: If you get a stolen, flat-screen TV,
that's going to cause you to wonder where this came from.
But there are multiple scenarios
that your opposing counsel has delineated
where you might be getting a check
from a party whom you have had no contact with.
It seems like the analogy might not work in that context,
where there's multiple different explanations
for getting a check, whereas, you know,
the flat screen TV showing up
in your living room is cause for pause.
-: Thank you, your honor.
I would suggest that it is analogous enough.
We're we're discussing property in the sum of money.
The checks were established to have been stolen,
and the defendant is the one trying to cash them.
I would suggest the case law
in receiving stolen property also talks about the recency
of the theft,
and I would suggest that the closeness in time,
at least in Oliver,
was established between it having been stolen
and it having been cashed.
-: But again, just to follow up
on Justice Wendlandt's point though.
I mean, we want free transferring of checks.
The whole UCC is based on sort of the idea
that we don't want it too hard to use checks
and endorse checks and pass them on.
That's sort of the nature of check-writing, right?
A.D.A DeBlander: Yes, your honor.
-: So, it's a little different than stolen property.
-: I would suggest it's something
that could be considered in addition
to the other factors at play here.
I do realize I'm over my time if I can address
at least one further point.
A lot of these questions have concerned issues
where there have been a number of hypotheticals,
the talk of possible, like, third parties here as well.
I suggest that this is, ultimately,
an issue for the trier of fact,
and that defense counsel
and the defendant always have a right
to introduce further evidence
of how they obtain the check themselves.
They're not obligated to testify
or to introduce such evidence.
However, it is not a strict liability of defense.
Defense counsel has a right to present their case
as they deem appropriate,
and it is a reasonable inference,
with the evidence that was presented here,
that an individual has no reason
to expect payment from an account holder,
would know that the check is fraudulent when they cash it.