-: SJC 13474, Commonwealth v. Rachelle Scordino
and SJC 13486, Commonwealth v. Dominique M. Oliver.
Budd: Okay, Attorney Yeshulas.
-: Thank you, Chief Justice Budd.
Good morning. May it please the Court.
Laurie Yeshulas for Rachelle Scordino.
Your Honors, 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 Commonwealth, excuse me, 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 was written.
And those apply additional circumstantial evidence
of knowledge.
In the other case that is cited by the Commonwealth,
excuse me, the concurrence in Oliver.
Kafker: Can I ask a question though?
So anytime, someone, let's do a hypothetical.
Someone steals a check and writes themself a
you know, write, 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, so.
-: And so in that case, I would suggest
that the Commonwealth do a further investigation on how,
you know, to the Commonwealth's burden to explain
how the check passed from the actual account holder
to the payee.
Kafker: Who is going to 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 one else's on the,
no other names are on the list, you know,
and no other endorsements.
But isn't this gonna always result in sort of a
free pass to steal checks?
-: I don't agree Justice Kafker
for the reason is we don't operate
under presumption, right?
That someone giving a third party check,
it's going to be a fraudulent check.
We operate that this is a negotiable instrument
and we can negotiate it freely.
Kafker: Totally agree with that.
But usually you know someone in.
Yeshulas: But not all-
-: Usually you knows someone
in the list of endorsements, right? It's not.
Yeshulas: But not all-
-: 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 we've got is just this,
which is someone's stolen a check
and writing them, 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-
Kafker: I agree it's hard.
-: So, and I think this is like the Pacheco case,
which is the case that cited in,
it's 1:28 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.
-: There, you know, someone in the chain of title, right?
Or I'm not using, so I skipped my UCC class,
I'm using the wrong terminology, but.
-: 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.
It is 382 So. 2d 391
It's a Florida District Court of Appeals case.
And that case, the person actually impersonated
the payor, right,
or the account holder, excuse me.
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 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 doing, they're just stealing
and writing and endorsing.
-: But 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-
Wendlandt: How do we know that Counsel?
-: How do-. -: 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?
How, you know, what does is it, 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.
If you, it happens quite frequently
and it's legal, there's nothing criminal
about it and it's allowable.
Wendlandt: 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 have other people pay
for things from me on other checks.
You know, in college-
Kafker: You've received checks from complete strangers?
From that not, okay, so I understand when grandma sends
you a check.
Yeshulas: Correct.
-: That's, you know grandma.
Have you received checks from complete strangers?
-: So there is a scenario in another case
that I would cite to is a Griffin case
that's also cited in the Oliver, in the appellant's case.
908 S.W.2d 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.
And the, you know, 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.
Budd: So the answer to Justice Kafker's question is no,
you don't often get third party checks that-
-: Me personally? -: I think that's
what he asked, yeah.
-: I actually have in certain scenario, in scenarios,
not personal checks, but I received, you know,
payment for something from someone I didn't know.
It's a perfectly-
Georges: 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 I were to, 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 cashes, negotiates the check.
I mean, why isn't that just enough to say, okay,
there were better sufficiency cases.
But why isn't that enough
to satisfy the Commonwealth's burden?
-: The Commonwealth has to show knowledge of the payee.
Georges: Right.
-: 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.
We can, very often,
we can't tell what's going on in somebody else's mind.
Hold on a minute. -: Yeah.
-: 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 going to be enough
to sustain a B and E.
Yeshulas: I think the problem is there's a difference
between we don't know who stolen, 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 burden to bridge
that gap and they can't resort to-
-: That's not a reasonable?
Yeshulas: unreasonable inference.
-: It's not a reasonable. -: But 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
turning 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 burden to show knowledge of the payee.
And in this case they can't do it.
There's nothing in between.
Budd: But just following up on Justice Georges' question,
doesn't it, 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-
-: 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.
Yeshulas: Sure, if there are more circumstances around
it, if the Commonwealth somehow can talk about, you know,
find out who stole and forged the check, sure.
-: Okay. -: But we don't have that here.
It's silent here and that's the problem.
Gaziano: Can I ask the last question?
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 in 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.
Gaziano: 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, what's the,
do you have a breakdown for us?
Yeshulas: 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?
Yeshulas: I have not.
-: All right. And I'm gonna ask other counsel
that question too. -: Okay.
-: Thank you. Oh sure. -: 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?
Yeshulas: I'm sorry, I didn't understand this question.
Could you ask it?
-: So the testimony is the account holder
doesn't know the payee.
-: Right? Yeshulas: Okay.
-: Why isn't it a fair inference
that the jury might draw that the payee
knew that the account holder didn't know them?
-: So that, 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 nothing, 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 account holder, excuse me,
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.
-: Okay, thank you. -: Thank you.
Budd: 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.
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 a lot of the case law
is a lot of the cases collected,
for example, in that ALR annotation, long and to date
sort of our modern notion since the seventies,
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 cases, 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 was more
the government could more freely
shift the burden onto the defendant.
So that's just a point I want to give to Your Honor
as you're doing your research.
Gaziano: I appreciate that. Thank you.
-: So picking up where the discussion left off.
I think Justice Georges, you pointed out
that these cases are and I think the Chief Justice
also made this point too, that these cases are often
done that , 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.
Kafker: But the defendant doesn't have to do anything.
-: Correct. -: And that creates
the issue, right, because the Commonwealth isn't gonna know
how the defendant got ahold of the check.
And the defendant doesn't have to testify.
So that makes this difficult, right?
-: Right, and I think, well, to take that,
to finish my other thought before I take that on.
So I think the problem
with relying solely on the account holder's disavowal
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 know, hang up the phone on
their ear, that can be introduced.
Kafker: Who gets that phone call?
If you're, 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 it can be brought in,
anything they say can be brought in.
The fact that they slam the phone on their ear can be
brought in or slam the door in their face.
Gaziano: Can you-
Georges: I'm sorry, Justice Gaziano, please.
-: 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 good rely. That's my memory,
at least, I might be wrong.
-: Yeah, there's a permissive inference
or presumption-
-: Right. -: I think.
-: No, get you over the rail and 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 has talked about.
-: 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 mind, 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.
-: Okay. -: I think you have
to look at the specific facts
and the specific evidence presented before you can-
-: Assume I, you know, again,
this is off the top of my head, but assume for 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.
Kafker: Oh, we're gonna put a bookmark on that,
but assuming that assumption, please tell me.
-: I mean, I think there is an analog there.
Again, I don't think that assumption is correct,
but you'll take a look at that.
Kafker: Right.
-: So in my remain,
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 want to 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 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.
Kafker: 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, are they?
-: 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.
-: Open 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.
Wendlandt: Isn't that just something that you would argue
to the jury then?
I mean, it seems like you're slightly differently positioned
than 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?
-: I think- -: That your
client did see and therefore should have
or 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, you have to decide,
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 mean. -: Pointing at the check that I
have here.
Daniels: I mean, you know, taking 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 Ls 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
as, 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 'A-y.'
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 just, 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 dollars.
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.
Budd: 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,
I am asking that, 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 to defraud.
-: 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 you have,
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.
And 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 that is, 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.
Kafker: But we don't even know whether,
I mean, three other people live with this woman, right?
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.
DeBlander: 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 it is, you know, it is for the trier of fact
to based on. -: Do you need that?
Kafker: Do you need some information on that?
Do you need some information as your brother argues, okay,
the police went to her
and she had, she didn't give any explanation of
how she got ahold of this, or do you need something else?
Is what I'm trying to figure out.
I understand this is a common situation.
DeBlander: Sure.
It is our position that that alone is sufficient here.
Kafker: 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.
-: But let's just, lemme 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 just, I'm concerned about that.
-: 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 issue
of strict liability, making this a strict liability offense.
And I think that as it was mentioned in Scordino-
-: 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 just, 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 State v. Williams, the Utah case
where there it was drawn on the account
of a business check.
I'm not sure that necessarily makes any difference here.
But the basis of the items-
-: 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.
DeBlander: 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."
Budd: You said the defendant didn't?
The defendant doesn't have to do anything.
Georges: Right.
-: This is true and I think- -: Massachusetts-
-: No, no, of course, no, Your Honor.
So to address that point here,
the defendant need not obviously testify
and, or introduce any direct evidence.
Wendlandt: Right, 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
where 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
and cases that we cite in our brief at least consider
that as some evidence.
So the question here is more,
is this that baseline sufficient?
I would suggest that, you know,
it is ultimately an empirical question
for this Court to decide.
Gaziano: So your research has uncovered that most states
require some sort of a plus factor?
DeBlander: It's not a term I would use
or that is present in the case law.
-: I'm using it.
DeBlander: But to extrapolate, yes, I would suggest
that that is, frequently they are present.
-: Okay.
-: I would suggest actually that here,
I mean the really Scordino is the sort of
baseline case that we're considering.
I would suggest- -: The amount?
Kafker: Remind me the amount in Scordino.
-: $950.
-: The other case was $3,000?
-: $3600, Your Honor.
$3,600 is a lot to cash,
asked to be given in hundreds, right?
Even in, 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 this Court could consider that, I mean,
cash is, 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
could consider because it provides the defendant
with immediate access to the funds and
-: a substantial amount. -: But when you say,
the trier fact could consider,
there were a lot of these cases,
these uttering 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
that you didn't, 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 Ms. Oliver's case
or 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 suggest that the Court
could also consider this issue of immediate cashing.
I know that this, 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.
Georges: 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 some sort of something untoward
that they consider in addition to the evidence
of the testimony of the account holder.
Kafker: Cashing the check at your own bank
is suspicious? Why would that be?
-: 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.
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?
Georges: Cash is still king, right?
-: At all indicative of knowledge?
DeBlander: Cash provides some, you know,
immediate access to funds.
-: Some people need immediate access to cash.
DeBlander: I understand, Your Honor. Yes.
And I think that this may be not as strong
a case as in taking out $3,600 in
Oliver in immediate cash. But it also-
Wendlandt: 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 in that, I mean I, 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 was.
Wendlandt: 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 of fact to note
there's something extra that's a bit untoward here.
This check was found, it was stolen,
it is not the signature of the victim account holder
and is very clearly not that signature
because it does contain this extra loop.
-: And excuse me. -: 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, that it is true
that this was not mentioned directly by the prosecutor.
-: The prosecutor- -: It was not mentioned.
Correct?
DeBlander: 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 our trier of fact
could extremely reasonably look at the loop in deciding
whether it is 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 believe we've established that
this is a stranger cashing a $3,600
check on an account.
-: 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?
DeBlander: Correct, Your Honor.
-: And they're entitled to cash checks
that are given to them, correct?
DeBlander: Correct, Your Honor.
-: So is it a 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, this 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 allow permissible inference.
Gaziano: That's still good case law, correct?
-: With, sorry. Yes, yes, Your Honor.
And so whereas here is-
Wendlandt: Is the analogy apt?
I wonder, you know,
now I'm sorry Chief,
if I could continue. -: 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 still, it is analogous enough.
This is still, we're discussing property in the amount
of a 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 in, I would suggest that the closeness in time,
at least in Oliver, was established between
it having been stolen and it having been cashed.
Kafker: 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?
DeBlander: Yes, Your Honor.
-: A little different than stolen property.
-: I would suggest it's something
that could be considered in addition
to the other factors at 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 some, of how they obtained the check themselves.
They're not obligated to testify
or to introduce such evidence.
However, it is not a strict liability of defense.
It is, 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 a individual has no reason
to expect payment from an account holder would know
that the check is fraudulent when they cash it.