WEBVTT 1 00:00:00.000 --> 00:00:04.230 SJC 13474, Commonwealth v. Rachelle Scordino 2 00:00:04.230 --> 00:00:09.230 and SJC 13486, Commonwealth v. Dominique M. Oliver. 3 00:00:15.401 --> 00:00:18.651 Okay, Attorney Yeshulas. 4 00:00:20.910 --> 00:00:22.350 Thank you, Chief Justice Budd. 5 00:00:22.350 --> 00:00:23.970 Good morning. May it please the Court. 6 00:00:23.970 --> 00:00:26.460 Laurie Yeshulas for Rachelle Scordino. 7 00:00:26.460 --> 00:00:28.470 Your Honors, this case is significant 8 00:00:28.470 --> 00:00:31.230 because we are faced with the question of whether 9 00:00:31.230 --> 00:00:35.190 in an otherwise unremarkable bank transaction, 10 00:00:35.190 --> 00:00:37.350 the Commonwealth's presentation of the 11 00:00:37.350 --> 00:00:40.510 account holder's testimony, that she does not know the payee 12 00:00:41.580 --> 00:00:44.400 and does not owe her money, count as sufficient evidence 13 00:00:44.400 --> 00:00:47.340 of circumstantial proof beyond a reasonable doubt 14 00:00:47.340 --> 00:00:51.480 to support the conviction of the crime of uttering. 15 00:00:51.480 --> 00:00:53.670 The Appeals Court answered this question, no. 16 00:00:53.670 --> 00:00:55.170 And for good reason, 17 00:00:55.170 --> 00:00:57.750 because the account holder's testimony does not give us 18 00:00:57.750 --> 00:01:01.080 any insight into the payee's knowledge or intent. 19 00:01:01.080 --> 00:01:02.646 In fact, it only gives us insight 20 00:01:02.646 --> 00:01:04.923 into the account holder's knowledge. 21 00:01:06.150 --> 00:01:08.700 The Commonwealth cannot rely on proof 22 00:01:08.700 --> 00:01:11.220 beyond a reasonable doubt on an account holder's 23 00:01:11.220 --> 00:01:13.230 statements of unfamiliarity. 24 00:01:13.230 --> 00:01:16.143 And that's what the Commonwealth asked this Court to find. 25 00:01:17.070 --> 00:01:18.600 The Commonwealth relies on cases 26 00:01:18.600 --> 00:01:21.090 that were cited in the concurrence in the Oliver case 27 00:01:21.090 --> 00:01:22.830 to support its proposition, 28 00:01:22.830 --> 00:01:25.920 but an actual clear and careful understanding 29 00:01:25.920 --> 00:01:28.590 and reading of those cases suggest otherwise. 30 00:01:28.590 --> 00:01:31.440 In the Commonwealth, excuse me, In the Green case 31 00:01:31.440 --> 00:01:33.900 cited by the concurrence in the Oliver case, 32 00:01:33.900 --> 00:01:37.980 that case there was other indicia of circumstantial proof 33 00:01:37.980 --> 00:01:41.640 of knowledge, including the defendant's admissions 34 00:01:41.640 --> 00:01:44.460 that he only did it once, his admissions he was unfamiliar 35 00:01:44.460 --> 00:01:47.280 with the company on whose check was written. 36 00:01:47.280 --> 00:01:50.160 And those apply additional circumstantial evidence 37 00:01:50.160 --> 00:01:51.600 of knowledge. 38 00:01:51.600 --> 00:01:54.120 In the other case that is cited by the Commonwealth, 39 00:01:54.120 --> 00:01:55.860 excuse me, the concurrence in Oliver. 40 00:01:55.860 --> 00:01:57.419 Can I ask a question though? 41 00:01:57.419 --> 00:02:02.100 So anytime, someone, let's do a hypothetical. 42 00:02:02.100 --> 00:02:05.320 Someone steals a check and writes themself a 43 00:02:08.100 --> 00:02:10.803 you know, write, make themselves the payee. 44 00:02:13.320 --> 00:02:16.380 They're off the hook, right? There's no way of proving this. 45 00:02:16.380 --> 00:02:18.000 So there are other ways, and there are cases 46 00:02:18.000 --> 00:02:20.010 that talk about maybe handwriting exemplars, 47 00:02:20.010 --> 00:02:21.570 where you come in and have someone do 48 00:02:21.570 --> 00:02:22.514 a handwriting exemplar. 49 00:02:22.514 --> 00:02:24.540 So you've got a good hand writer, 50 00:02:24.540 --> 00:02:27.390 who reads the name carefully, so. 51 00:02:27.390 --> 00:02:28.473 And so in that case, I would suggest 52 00:02:28.473 --> 00:02:31.560 that the Commonwealth do a further investigation on how, 53 00:02:31.560 --> 00:02:34.686 you know, to the Commonwealth's burden to explain 54 00:02:34.686 --> 00:02:37.817 how the check passed from the actual account holder 55 00:02:37.817 --> 00:02:38.650 to the payee. 56 00:02:38.650 --> 00:02:39.930 Who is going to end up with, 57 00:02:39.930 --> 00:02:42.510 the Commonwealth's always gonna be able to prove 58 00:02:42.510 --> 00:02:45.150 the account holder doesn't know the person. 59 00:02:45.150 --> 00:02:47.820 It's also gonna be showing no one else's on the, 60 00:02:47.820 --> 00:02:50.610 no other names are on the list, you know, 61 00:02:50.610 --> 00:02:52.080 and no other endorsements. 62 00:02:52.080 --> 00:02:54.720 But isn't this gonna always result in sort of a 63 00:02:54.720 --> 00:02:58.020 free pass to steal checks? 64 00:02:58.020 --> 00:02:59.790 I don't agree Justice Kafker 65 00:02:59.790 --> 00:03:02.280 for the reason is we don't operate 66 00:03:02.280 --> 00:03:03.600 under presumption, right? 67 00:03:03.600 --> 00:03:06.450 That someone giving a third party check, 68 00:03:06.450 --> 00:03:07.920 it's going to be a fraudulent check. 69 00:03:07.920 --> 00:03:10.200 We operate that this is a negotiable instrument 70 00:03:10.200 --> 00:03:11.760 and we can negotiate it freely. 71 00:03:11.760 --> 00:03:12.630 Totally agree with that. 72 00:03:12.630 --> 00:03:14.629 But usually you know someone in. 73 00:03:14.629 --> 00:03:15.604 But not all- 74 00:03:15.604 --> 00:03:16.893 Usually you knows someone 75 00:03:16.893 --> 00:03:18.611 in the list of endorsements, right? It's not. 76 00:03:18.611 --> 00:03:19.444 But not all- 77 00:03:19.444 --> 00:03:23.070 The example that Justice Rubin gives in his, 78 00:03:23.070 --> 00:03:25.770 about an attorney who got paid, you know, 79 00:03:25.770 --> 00:03:27.060 his client owes him money 80 00:03:27.060 --> 00:03:28.980 and the brother of the client pays. 81 00:03:28.980 --> 00:03:31.050 That's not our situation. 82 00:03:31.050 --> 00:03:33.060 Normally we've got is just this, 83 00:03:33.060 --> 00:03:34.920 which is someone's stolen a check 84 00:03:34.920 --> 00:03:39.060 and writing them, written something, endorsing it to them. 85 00:03:39.060 --> 00:03:40.980 The problem with the Commonwealth's evidence in this case 86 00:03:40.980 --> 00:03:43.290 is we don't know who stole or forged the check because- 87 00:03:43.290 --> 00:03:44.400 I agree it's hard. 88 00:03:44.400 --> 00:03:46.950 So, and I think this is like the Pacheco case, 89 00:03:46.950 --> 00:03:49.410 which is the case that cited in, 90 00:03:49.410 --> 00:03:52.110 it's 1:28 cited in my brief. 91 00:03:52.110 --> 00:03:54.930 That case and we are referring to the attorney in that case, 92 00:03:54.930 --> 00:03:57.180 the attorney receives a check, it was misrepresented 93 00:03:57.180 --> 00:03:58.729 to her by her client. 94 00:03:58.729 --> 00:04:00.780 And that scenario happens all the time. 95 00:04:00.780 --> 00:04:02.053 Third party checks are passed all the time. 96 00:04:02.053 --> 00:04:05.670 There, you know, someone in the chain of title, right? 97 00:04:05.670 --> 00:04:09.780 Or I'm not using, so I skipped my UCC class, 98 00:04:09.780 --> 00:04:11.700 I'm using the wrong terminology, but. 99 00:04:11.700 --> 00:04:13.560 So, you know, for guidance, 100 00:04:13.560 --> 00:04:16.170 we can look at cases in other jurisdictions. 101 00:04:16.170 --> 00:04:18.810 The Heath v. State case, which I do not cite in my brief, 102 00:04:18.810 --> 00:04:21.702 but the appellant in Oliver states it. 103 00:04:21.702 --> 00:04:25.620 It is 382 So. 2d 391 104 00:04:25.620 --> 00:04:27.780 It's a Florida District Court of Appeals case. 105 00:04:27.780 --> 00:04:30.891 And that case, the person actually impersonated 106 00:04:30.891 --> 00:04:32.610 the payor, right, 107 00:04:32.610 --> 00:04:34.260 or the account holder, excuse me. 108 00:04:35.130 --> 00:04:36.030 There was an impersonation. 109 00:04:36.030 --> 00:04:38.160 So when the person went to cash the check, 110 00:04:38.160 --> 00:04:40.770 he had no real way of knowing that he received 111 00:04:40.770 --> 00:04:41.910 the check from impersonator. 112 00:04:41.910 --> 00:04:43.770 I'm trying to figure out what to do in 113 00:04:43.770 --> 00:04:45.450 the more common harder case. 114 00:04:45.450 --> 00:04:49.773 Someone writes the right name down, steals the check, 115 00:04:50.640 --> 00:04:55.640 but they're not wearing a Groucho Marx, you know, outfit. 116 00:04:56.100 --> 00:04:58.020 You know, they're just doing, they're just stealing 117 00:04:58.020 --> 00:04:59.910 and writing and endorsing. 118 00:04:59.910 --> 00:05:00.743 But third party checks, 119 00:05:00.743 --> 00:05:02.700 and I think the Appeals Court talks about this, 120 00:05:02.700 --> 00:05:03.780 are very common. 121 00:05:03.780 --> 00:05:07.530 In fact, you know, people often receive third party checks 122 00:05:07.530 --> 00:05:10.942 for paying for services and goods for other people. 123 00:05:10.942 --> 00:05:12.147 Someone could pay for someone's- 124 00:05:12.147 --> 00:05:14.340 How do we know that Counsel? 125 00:05:14.340 --> 00:05:15.240 How do-. I'm sorry to interrupt 126 00:05:15.240 --> 00:05:16.073 your answer, 127 00:05:16.073 --> 00:05:18.660 but just you're stating that as a fact 128 00:05:18.660 --> 00:05:21.480 that people often receive third party checks. 129 00:05:21.480 --> 00:05:24.000 So let's just take an an example of when the attorneys, 130 00:05:24.000 --> 00:05:26.220 one example, another scenario could be someone 131 00:05:26.220 --> 00:05:27.390 paying for somebody's car. 132 00:05:27.390 --> 00:05:28.860 I can come up with scenarios. 133 00:05:28.860 --> 00:05:31.860 How do we know that this is a common scenario? 134 00:05:31.860 --> 00:05:35.070 How, you know, what does is it, we just know this? 135 00:05:35.070 --> 00:05:36.030 I think. We can take 136 00:05:36.030 --> 00:05:37.320 judicial notice of it or? 137 00:05:37.320 --> 00:05:40.200 So banks generally accept third party payee checks 138 00:05:40.200 --> 00:05:41.850 and it happens all the time. 139 00:05:41.850 --> 00:05:44.190 This is something that's not uncommon. 140 00:05:44.190 --> 00:05:47.340 Generally, and I think the Appeals Court talks about it is, 141 00:05:47.340 --> 00:05:49.230 we generally don't know sometimes, 142 00:05:49.230 --> 00:05:52.020 when we receive a third party check to pay for 143 00:05:52.020 --> 00:05:54.900 some good or service by someone else, a great aunt 144 00:05:54.900 --> 00:05:56.730 or a grandmother, or a brother, 145 00:05:56.730 --> 00:05:58.050 or someone paying for the services 146 00:05:58.050 --> 00:05:59.670 or goods for someone else. 147 00:05:59.670 --> 00:06:02.160 If you, it happens quite frequently 148 00:06:02.160 --> 00:06:04.230 and it's legal, there's nothing criminal 149 00:06:04.230 --> 00:06:05.460 about it and it's allowable. 150 00:06:05.460 --> 00:06:06.420 What's the basis for your statement 151 00:06:06.420 --> 00:06:07.980 that it happens quite frequently, 152 00:06:07.980 --> 00:06:09.870 just your common knowledge? 153 00:06:09.870 --> 00:06:11.640 I don't know. I'm not disputing it. 154 00:06:11.640 --> 00:06:14.550 It's not my experience, but I'm wondering, is it yours? 155 00:06:14.550 --> 00:06:15.870 If I could speak outside the record, 156 00:06:15.870 --> 00:06:16.920 I have received checks. 157 00:06:16.920 --> 00:06:18.360 I have have other people pay 158 00:06:18.360 --> 00:06:20.280 for things from me on other checks. 159 00:06:20.280 --> 00:06:21.960 You know, in college- 160 00:06:21.960 --> 00:06:24.900 You've received checks from complete strangers? 161 00:06:24.900 --> 00:06:29.400 From that not, okay, so I understand when grandma sends 162 00:06:29.400 --> 00:06:30.233 you a check. 163 00:06:30.233 --> 00:06:31.260 Correct. 164 00:06:31.260 --> 00:06:33.270 That's, you know grandma. 165 00:06:33.270 --> 00:06:36.090 Have you received checks from complete strangers? 166 00:06:36.090 --> 00:06:39.630 So there is a scenario in another case 167 00:06:39.630 --> 00:06:40.950 that I would cite to is a Griffin case 168 00:06:40.950 --> 00:06:44.446 that's also cited in the Oliver, in the appellant's case. 169 00:06:44.446 --> 00:06:47.013 908 S.W.2d 624. 170 00:06:47.850 --> 00:06:50.040 That's a case where someone steals a checkbook 171 00:06:50.040 --> 00:06:51.810 and impersonates the payor. 172 00:06:51.810 --> 00:06:55.410 And in both of those, in the Heath and Griffin cases, 173 00:06:55.410 --> 00:06:58.410 they talk about this scenario where someone's impersonating 174 00:06:58.410 --> 00:06:59.520 that account holder. 175 00:06:59.520 --> 00:07:03.090 And the, you know, the Heath case is a good example 176 00:07:03.090 --> 00:07:05.550 of someone who meets somebody, impersonates 177 00:07:05.550 --> 00:07:08.760 the account holder and receives a check for goods. 178 00:07:08.760 --> 00:07:11.790 And in that case, the payee would have no way 179 00:07:11.790 --> 00:07:13.830 of knowing that the person is, you know, 180 00:07:13.830 --> 00:07:15.390 impersonating the account holder. 181 00:07:15.390 --> 00:07:18.715 So the answer to Justice Kafker's question is no, 182 00:07:18.715 --> 00:07:21.210 you don't often get third party checks that- 183 00:07:21.210 --> 00:07:22.800 Me personally? I think that's 184 00:07:22.800 --> 00:07:23.800 what he asked, yeah. 185 00:07:25.440 --> 00:07:27.930 I actually have in certain scenario, in scenarios, 186 00:07:27.930 --> 00:07:30.600 not personal checks, but I received, you know, 187 00:07:30.600 --> 00:07:32.760 payment for something from someone I didn't know. 188 00:07:32.760 --> 00:07:33.742 It's a perfectly- 189 00:07:33.742 --> 00:07:34.575 Counsel, could we just go back 190 00:07:34.575 --> 00:07:36.090 to this case for a second? 191 00:07:36.090 --> 00:07:38.232 Why isn't this just a sufficiency case? 192 00:07:38.232 --> 00:07:39.065 It is a sufficiency case. 193 00:07:39.065 --> 00:07:40.590 Exactly, why isn't it sufficient? 194 00:07:40.590 --> 00:07:43.170 I mean, you're saying we need plus. 195 00:07:43.170 --> 00:07:46.560 Okay, so if I were to, if you have a situation 196 00:07:46.560 --> 00:07:51.240 where you've got an account holder saying, I have no reason 197 00:07:51.240 --> 00:07:54.780 to have given this person this check for any amount 198 00:07:54.780 --> 00:07:58.680 of money, the person cashes, negotiates the check. 199 00:07:58.680 --> 00:08:01.500 I mean, why isn't that just enough to say, okay, 200 00:08:01.500 --> 00:08:04.350 there were better sufficiency cases. 201 00:08:04.350 --> 00:08:07.410 But why isn't that enough 202 00:08:07.410 --> 00:08:09.534 to satisfy the Commonwealth's burden? 203 00:08:09.534 --> 00:08:11.610 The Commonwealth has to show knowledge of the payee. 204 00:08:11.610 --> 00:08:12.443 Right. 205 00:08:12.443 --> 00:08:13.560 By showing knowledge of the account holder, 206 00:08:13.560 --> 00:08:15.330 you don't have any insight to how 207 00:08:15.330 --> 00:08:17.160 that payee received the check. You never do though. 208 00:08:17.160 --> 00:08:19.590 It's embedded in our jury instructions. 209 00:08:19.590 --> 00:08:21.450 We can, very often, 210 00:08:21.450 --> 00:08:24.900 we can't tell what's going on in somebody else's mind. 211 00:08:24.900 --> 00:08:25.890 Hold on a minute. Yeah. 212 00:08:25.890 --> 00:08:28.620 We can't tell what's going on in somebody else's mind. 213 00:08:28.620 --> 00:08:31.410 So we do this every day by circumstantial evidence. 214 00:08:31.410 --> 00:08:35.760 So if you walk into your home 215 00:08:35.760 --> 00:08:39.150 and I happen to be sitting at your table eating something. 216 00:08:39.150 --> 00:08:41.460 And I have no reason to be there, 217 00:08:41.460 --> 00:08:43.410 and you haven't invited me 218 00:08:43.410 --> 00:08:45.390 and you say, "I don't know this person, 219 00:08:45.390 --> 00:08:47.190 I didn't invite them into my home." 220 00:08:47.190 --> 00:08:49.500 And you're telling me that that's not going to be enough 221 00:08:49.500 --> 00:08:50.333 to sustain a B and E. 222 00:08:50.333 --> 00:08:53.760 I think the problem is there's a difference 223 00:08:53.760 --> 00:08:58.760 between we don't know who stolen, forged the check, right? 224 00:08:58.830 --> 00:09:02.430 So all we have is the account holder doesn't know the payee, 225 00:09:02.430 --> 00:09:04.230 but we don't know the circumstances surrounding 226 00:09:04.230 --> 00:09:06.660 on how the payee received the check, 227 00:09:06.660 --> 00:09:09.420 much like the attorney in the Pacheco case. 228 00:09:09.420 --> 00:09:12.630 The problem is, it's the Commonwealth burden to bridge 229 00:09:12.630 --> 00:09:14.323 that gap and they can't resort to- 230 00:09:14.323 --> 00:09:15.156 That's not a reasonable? 231 00:09:15.156 --> 00:09:16.396 unreasonable inference. 232 00:09:16.396 --> 00:09:17.229 It's not a reasonable. But you're saying 233 00:09:17.229 --> 00:09:18.450 it's an unreasonable inference. 234 00:09:18.450 --> 00:09:21.120 But there is a world that somebody might say, 235 00:09:21.120 --> 00:09:23.490 a finder of fact might say "That's a reasonable inference." 236 00:09:23.490 --> 00:09:25.350 I don't think so, Your Honor, respectfully, 237 00:09:25.350 --> 00:09:27.600 because you'd have to pile inference, 238 00:09:27.600 --> 00:09:30.060 just because the account holder doesn't know the payee, 239 00:09:30.060 --> 00:09:32.250 then the payee must know it's fraudulent. 240 00:09:32.250 --> 00:09:34.020 That's the leap that's the piling 241 00:09:34.020 --> 00:09:35.280 of inference upon inference. 242 00:09:35.280 --> 00:09:36.870 And you cannot get there just because 243 00:09:36.870 --> 00:09:38.280 the account holder doesn't know. 244 00:09:38.280 --> 00:09:41.730 Because in Ms. Scordino's case, there's three people living 245 00:09:41.730 --> 00:09:43.920 in the house, Ms. Adams house with her. 246 00:09:43.920 --> 00:09:45.480 They all had access to this checkbook. 247 00:09:45.480 --> 00:09:46.920 There's been no break-in. 248 00:09:46.920 --> 00:09:50.700 These two people are unfamiliar to each other. 249 00:09:50.700 --> 00:09:51.987 So what happened in between? 250 00:09:51.987 --> 00:09:53.550 And it was the Commonwealth's burden 251 00:09:53.550 --> 00:09:55.351 to prove what happened in between, 252 00:09:55.351 --> 00:09:59.880 prove those circumstances to show knowledge. 253 00:09:59.880 --> 00:10:02.340 If we do not do that, what we end up doing, 254 00:10:02.340 --> 00:10:04.560 and the danger that the Appeals Court talked about 255 00:10:04.560 --> 00:10:07.470 in its decision is we end up 256 00:10:07.470 --> 00:10:10.650 turning uttering into a strict liability offense. 257 00:10:10.650 --> 00:10:12.420 And all the Commonwealth will have 258 00:10:12.420 --> 00:10:14.670 to do in those cases is bring the account holder in. 259 00:10:14.670 --> 00:10:16.800 Who cares what happened in between? 260 00:10:16.800 --> 00:10:19.350 And that is just not enough to show knowledge. 261 00:10:19.350 --> 00:10:22.530 It's the Commonwealth burden to show knowledge of the payee. 262 00:10:22.530 --> 00:10:24.090 And in this case they can't do it. 263 00:10:24.090 --> 00:10:24.923 There's nothing in between. 264 00:10:24.923 --> 00:10:29.370 But just following up on Justice Georges' question, 265 00:10:29.370 --> 00:10:33.060 doesn't it, isn't it a case by case situation, 266 00:10:33.060 --> 00:10:36.119 where we look at what the evidence is 267 00:10:36.119 --> 00:10:38.550 and we look to see whether or not 268 00:10:38.550 --> 00:10:41.070 there's enough to say there's intent here? 269 00:10:41.070 --> 00:10:44.940 Correct. It's always that way in sufficiency cases. 270 00:10:44.940 --> 00:10:46.957 The problem is and this Court has the authority to say, 271 00:10:46.957 --> 00:10:48.630 "So this isn't enough." 272 00:10:48.630 --> 00:10:51.510 The Commonwealth presents it case, nothing remarkable about 273 00:10:51.510 --> 00:10:52.920 the bank transaction. 274 00:10:52.920 --> 00:10:54.690 No, I understand, but- Only the testimony of the- 275 00:10:54.690 --> 00:10:58.230 And so what we do is, and what 276 00:10:58.230 --> 00:11:02.580 the jurors do or the judge, you look at what's there 277 00:11:02.580 --> 00:11:04.633 on a case by case basis. 278 00:11:04.633 --> 00:11:06.270 Correct, we always do that. 279 00:11:06.270 --> 00:11:10.050 However, I think that what this Court should find is 280 00:11:10.050 --> 00:11:13.890 that just relying on the account holder's testimony alone is 281 00:11:13.890 --> 00:11:15.960 insufficient to get to the knowledge of the payee. 282 00:11:15.960 --> 00:11:18.120 Depending on what the account holder says. 283 00:11:18.120 --> 00:11:20.160 Sure, if there are more circumstances around 284 00:11:20.160 --> 00:11:23.310 it, if the Commonwealth somehow can talk about, you know, 285 00:11:23.310 --> 00:11:26.297 find out who stole and forged the check, sure. 286 00:11:26.297 --> 00:11:27.480 Okay. But we don't have that here. 287 00:11:27.480 --> 00:11:29.482 It's silent here and that's the problem. 288 00:11:29.482 --> 00:11:30.315 Can I ask the last question? 289 00:11:30.315 --> 00:11:31.410 Yes, please. 290 00:11:31.410 --> 00:11:35.130 Can you tell us from your research whether or not 291 00:11:35.130 --> 00:11:37.230 there's a majority rule, minority rule 292 00:11:37.230 --> 00:11:38.970 as you looked across the states? 293 00:11:38.970 --> 00:11:42.000 So I actually looked at the cases 294 00:11:42.000 --> 00:11:47.000 that Johnson v. State, which is the case that 295 00:11:47.160 --> 00:11:48.930 is relied on in the concurrence in Oliver. 296 00:11:48.930 --> 00:11:50.580 And if you look at those cases, 297 00:11:50.580 --> 00:11:52.350 it talks about all the different factors. 298 00:11:52.350 --> 00:11:53.700 The Griffin case is another case 299 00:11:53.700 --> 00:11:56.040 that talks about all the different factors, which is enough 300 00:11:56.040 --> 00:11:58.383 to show circumstantial proof of knowledge. 301 00:11:59.220 --> 00:12:01.110 Some of the things that the cases rely. 302 00:12:01.110 --> 00:12:04.260 But I've read the cases. 303 00:12:04.260 --> 00:12:06.660 But have you looked to see whether or not, 304 00:12:06.660 --> 00:12:08.550 when we have our law clerks look at it, 305 00:12:08.550 --> 00:12:12.720 if there's a rule that 49 states use, what's the, 306 00:12:12.720 --> 00:12:13.950 do you have a breakdown for us? 307 00:12:13.950 --> 00:12:15.180 I didn't find that breakdown, 308 00:12:15.180 --> 00:12:17.730 but what I did find is I don't think there is one case out 309 00:12:17.730 --> 00:12:19.467 there that says the account holder's testimony is enough. 310 00:12:19.467 --> 00:12:21.510 No, I'm asking you for that breakdown. 311 00:12:21.510 --> 00:12:23.790 You haven't done that research? 312 00:12:23.790 --> 00:12:24.657 I have not. 313 00:12:24.657 --> 00:12:25.650 All right. And I'm gonna ask other counsel 314 00:12:25.650 --> 00:12:27.000 that question too. Okay. 315 00:12:27.000 --> 00:12:29.760 Thank you. Oh sure. Question, sorry. 316 00:12:29.760 --> 00:12:34.620 Why is it not a fair inference that the jury might make 317 00:12:34.620 --> 00:12:37.470 that if the account holder doesn't know the payee, 318 00:12:37.470 --> 00:12:41.163 the defendant, that the defendant should have known? 319 00:12:42.150 --> 00:12:44.040 I'm sorry, I didn't understand this question. 320 00:12:44.040 --> 00:12:44.873 Could you ask it? 321 00:12:44.873 --> 00:12:46.770 So the testimony is the account holder 322 00:12:46.770 --> 00:12:48.870 doesn't know the payee. 323 00:12:48.870 --> 00:12:49.830 Right? Okay. 324 00:12:49.830 --> 00:12:51.480 Why isn't it a fair inference 325 00:12:51.480 --> 00:12:56.480 that the jury might draw that the payee 326 00:12:56.670 --> 00:12:59.670 knew that the account holder didn't know them? 327 00:12:59.670 --> 00:13:01.182 So that, and I think that's 328 00:13:01.182 --> 00:13:04.123 the whole point is there is no evidence as 329 00:13:04.123 --> 00:13:06.420 to the payee's knowledge and intent. 330 00:13:06.420 --> 00:13:08.700 We only know the account holder's knowledge. 331 00:13:08.700 --> 00:13:11.190 There's nothing, there's no insight into the payee's. 332 00:13:11.190 --> 00:13:13.410 And again, it could be an imposter scenario, 333 00:13:13.410 --> 00:13:16.260 it could be a third payee type of scenario. 334 00:13:16.260 --> 00:13:18.150 The check is stolen and forged 335 00:13:18.150 --> 00:13:19.050 and someone representing 336 00:13:19.050 --> 00:13:20.580 themselves to be the account holder. 337 00:13:20.580 --> 00:13:22.740 So I think in order to get there, you have 338 00:13:22.740 --> 00:13:24.240 to pile inference upon inference, 339 00:13:24.240 --> 00:13:27.300 just because the account holder doesn't know 340 00:13:27.300 --> 00:13:29.580 the payee doesn't recognize their name, 341 00:13:29.580 --> 00:13:33.390 therefore we can presume the account holder, excuse me, 342 00:13:33.390 --> 00:13:34.860 the payee knows it's fraudulent. 343 00:13:34.860 --> 00:13:38.130 That's too much of piling inference upon inference 344 00:13:38.130 --> 00:13:38.963 upon inference. 345 00:13:38.963 --> 00:13:41.220 And the evidence just isn't enough to get there. 346 00:13:42.240 --> 00:13:45.270 Okay, thank you. Thank you. 347 00:13:45.270 --> 00:13:46.570 Attorney Daniels. 348 00:13:54.600 --> 00:13:56.640 Good morning, and may it please the Court. 349 00:13:56.640 --> 00:13:57.780 Attorney Josh Daniels 350 00:13:57.780 --> 00:14:00.270 for Dominique Oliver in the other case. 351 00:14:00.270 --> 00:14:03.450 I'd just like to jump in where the discussion left off. 352 00:14:03.450 --> 00:14:06.183 First of all, Justice Gaziano to your question, 353 00:14:07.050 --> 00:14:09.420 I have not done a 50 state survey. 354 00:14:09.420 --> 00:14:12.510 I know that there is an ALR annotation 355 00:14:12.510 --> 00:14:14.910 that's quite old from like 1946. 356 00:14:14.910 --> 00:14:16.758 I can get that for you if you want. 357 00:14:16.758 --> 00:14:18.750 We'll do that. And I appreciate that. 358 00:14:18.750 --> 00:14:20.160 And this case law, it's quite old as well. 359 00:14:20.160 --> 00:14:23.280 The thing I would say about a lot of the case law 360 00:14:23.280 --> 00:14:26.670 is a lot of the cases collected, 361 00:14:26.670 --> 00:14:31.050 for example, in that ALR annotation, long and to date 362 00:14:31.050 --> 00:14:33.690 sort of our modern notion since the seventies, 363 00:14:33.690 --> 00:14:35.220 since Winship and those cases 364 00:14:35.220 --> 00:14:37.020 about how we allocate the burden of proof 365 00:14:37.020 --> 00:14:38.040 under the 14th Amendment. 366 00:14:38.040 --> 00:14:39.810 And so I think we need to be 367 00:14:39.810 --> 00:14:43.170 very careful in looking too far back in the case. 368 00:14:43.170 --> 00:14:45.510 Like the older the cases, I think there's a real danger 369 00:14:45.510 --> 00:14:47.520 of digging around in that old soil 370 00:14:47.520 --> 00:14:49.470 because a lot of those cases are bringing 371 00:14:49.470 --> 00:14:51.370 that old soil from England where 372 00:14:51.370 --> 00:14:54.210 under the Common Law was more 373 00:14:54.210 --> 00:14:55.860 the government could more freely 374 00:14:55.860 --> 00:14:57.300 shift the burden onto the defendant. 375 00:14:57.300 --> 00:15:00.540 So that's just a point I want to give to Your Honor 376 00:15:00.540 --> 00:15:02.160 as you're doing your research. 377 00:15:02.160 --> 00:15:03.374 I appreciate that. Thank you. 378 00:15:03.374 --> 00:15:06.690 So picking up where the discussion left off. 379 00:15:06.690 --> 00:15:10.650 I think Justice Georges, you pointed out 380 00:15:10.650 --> 00:15:13.530 that these cases are and I think the Chief Justice 381 00:15:13.530 --> 00:15:15.750 also made this point too, that these cases are often 382 00:15:15.750 --> 00:15:19.590 done that , circumstantial evidence is all about 383 00:15:19.590 --> 00:15:22.320 taking the circumstances as we find them case by case. 384 00:15:22.320 --> 00:15:26.170 And I think that's right. I think the big problem 385 00:15:26.170 --> 00:15:28.020 with the Commonwealth's approach 386 00:15:28.020 --> 00:15:30.720 and the approach that Justice Singh took 387 00:15:30.720 --> 00:15:34.620 in her concurrence is, the relevant circumstances 388 00:15:34.620 --> 00:15:37.440 that shed light on the defendant's knowledge are usually 389 00:15:37.440 --> 00:15:39.510 going to be the circumstances 390 00:15:39.510 --> 00:15:42.150 under which they come by the check 391 00:15:42.150 --> 00:15:44.850 and under which they take possession of the check. 392 00:15:44.850 --> 00:15:45.930 And that's really 393 00:15:45.930 --> 00:15:48.690 what gives us the most visibility into intent. 394 00:15:48.690 --> 00:15:51.500 But the defendant doesn't have to do anything. 395 00:15:51.500 --> 00:15:53.470 Correct. And that creates 396 00:15:53.470 --> 00:15:57.124 the issue, right, because the Commonwealth isn't gonna know 397 00:15:57.124 --> 00:16:01.153 how the defendant got ahold of the check. 398 00:16:01.153 --> 00:16:03.390 And the defendant doesn't have to testify. 399 00:16:03.390 --> 00:16:06.720 So that makes this difficult, right? 400 00:16:06.720 --> 00:16:09.210 Right, and I think, well, to take that, 401 00:16:09.210 --> 00:16:12.480 to finish my other thought before I take that on. 402 00:16:12.480 --> 00:16:13.819 So I think the problem 403 00:16:13.819 --> 00:16:17.430 with relying solely on the account holder's disavowal 404 00:16:17.430 --> 00:16:19.980 of the check and saying, "I don't know this person," 405 00:16:19.980 --> 00:16:21.990 is that all it really tells us is 406 00:16:21.990 --> 00:16:24.510 who the defendant didn't get the check from. 407 00:16:24.510 --> 00:16:27.210 And it doesn't really shed any light on 408 00:16:27.210 --> 00:16:29.460 how they did get the check, who they got it from 409 00:16:29.460 --> 00:16:31.573 or what that person told them, which is really 410 00:16:31.573 --> 00:16:33.870 what gives us visibility into their knowledge. 411 00:16:33.870 --> 00:16:35.940 To take your point, Justice Kafker, 412 00:16:35.940 --> 00:16:38.280 the second best window we have into 413 00:16:38.280 --> 00:16:42.150 that I think are the circumstances that happen at the bank, 414 00:16:42.150 --> 00:16:45.135 at the teller counter, or in the investigation that follows. 415 00:16:45.135 --> 00:16:47.910 I take your concern that there are going 416 00:16:47.910 --> 00:16:50.582 to be some cases that the Commonwealth can't win. 417 00:16:50.582 --> 00:16:55.320 I think that's accounted for when the Supreme Court set 418 00:16:55.320 --> 00:16:56.820 the allocation of the burden of proof. 419 00:16:56.820 --> 00:16:59.070 I do think in many cases though, you know, 420 00:16:59.070 --> 00:17:00.773 you could have done more, 421 00:17:00.773 --> 00:17:03.060 there may be cases where there is no more, 422 00:17:03.060 --> 00:17:05.460 but there may well be lots of cases 423 00:17:05.460 --> 00:17:06.690 where there is more 424 00:17:06.690 --> 00:17:07.800 and they just didn't bring it in. 425 00:17:07.800 --> 00:17:09.240 In neither of these cases 426 00:17:09.240 --> 00:17:12.180 did the bank teller, who actually took the check testify. 427 00:17:12.180 --> 00:17:15.420 That bank teller could have testified about, "Oh yeah, 428 00:17:15.420 --> 00:17:17.190 this person was really, really nervous 429 00:17:17.190 --> 00:17:18.690 as they were cashing the check." 430 00:17:18.690 --> 00:17:21.540 Usually, when you pass a forged check, 431 00:17:21.540 --> 00:17:23.160 you get a call about it later 432 00:17:23.160 --> 00:17:23.993 and they say, 433 00:17:23.993 --> 00:17:26.730 "Hey, that check you gave us was forged, what's up?" 434 00:17:26.730 --> 00:17:30.420 And whatever you say or if you know, hang up the phone on 435 00:17:30.420 --> 00:17:31.950 their ear, that can be introduced. 436 00:17:31.950 --> 00:17:33.030 Who gets that phone call? 437 00:17:33.030 --> 00:17:37.050 If you're, who's getting that phone call? 438 00:17:37.050 --> 00:17:40.620 The defendant often. So you know that was, 439 00:17:40.620 --> 00:17:43.440 for example, the case in Catania, you know. 440 00:17:43.440 --> 00:17:46.590 The bank calls up, sometimes, it's the police who call up 441 00:17:46.590 --> 00:17:50.310 or come knocking and either they tell a story 442 00:17:50.310 --> 00:17:53.370 that's not believable, but in any case it can be brought in, 443 00:17:53.370 --> 00:17:55.200 anything they say can be brought in. 444 00:17:55.200 --> 00:17:57.240 The fact that they slam the phone on their ear can be 445 00:17:57.240 --> 00:17:59.280 brought in or slam the door in their face. 446 00:17:59.280 --> 00:18:00.450 Can you- 447 00:18:00.450 --> 00:18:01.680 I'm sorry, Justice Gaziano, please. 448 00:18:01.680 --> 00:18:02.513 Thank you. 449 00:18:02.513 --> 00:18:06.933 Can you remind me, what this strikes me as similar to 450 00:18:06.933 --> 00:18:10.020 are the receiving stolen property inference cases 451 00:18:10.020 --> 00:18:12.870 that get you over the rail when you have recently stolen 452 00:18:12.870 --> 00:18:17.010 property and we've drawn inferences in those cases? 453 00:18:17.010 --> 00:18:19.140 I think that's still good rely. That's my memory, 454 00:18:19.140 --> 00:18:20.370 at least, I might be wrong. 455 00:18:20.370 --> 00:18:23.550 Yeah, there's a permissive inference 456 00:18:23.550 --> 00:18:24.383 or presumption- 457 00:18:24.383 --> 00:18:25.216 Right. I think. 458 00:18:25.216 --> 00:18:26.670 No, get you over the rail and it can be rebutted. 459 00:18:26.670 --> 00:18:29.940 So how are these cases different from that? 460 00:18:29.940 --> 00:18:32.220 So functionally, 461 00:18:32.220 --> 00:18:35.340 I don't think it really is a different analysis 462 00:18:35.340 --> 00:18:36.570 as I understand the way 463 00:18:36.570 --> 00:18:37.717 that this Court has talked about. 464 00:18:37.717 --> 00:18:40.350 Yeah, the analysis is fine, but how is the inference 465 00:18:40.350 --> 00:18:43.650 logical in the receiving stolen property case, 466 00:18:43.650 --> 00:18:44.910 but illogical- 467 00:18:44.910 --> 00:18:46.410 The point I'm trying to make is 468 00:18:46.410 --> 00:18:48.390 that it may not always be logical in a 469 00:18:48.390 --> 00:18:49.830 receiving stolen property case. 470 00:18:49.830 --> 00:18:51.660 I think, you know, if you look at Littles 471 00:18:51.660 --> 00:18:55.110 and the way that you discuss permissive presumptions, 472 00:18:55.110 --> 00:18:57.540 really it's functionally the same analysis 473 00:18:57.540 --> 00:19:00.750 as whether an inference is an available one. 474 00:19:00.750 --> 00:19:01.890 For sufficiency purposes, 475 00:19:01.890 --> 00:19:03.510 it's case and evidence specific. 476 00:19:03.510 --> 00:19:06.360 In my mind, in my memory, I haven't looked at in a while, 477 00:19:06.360 --> 00:19:07.470 but we've said 478 00:19:07.470 --> 00:19:09.540 that the receiving stolen property inference is valid, 479 00:19:09.540 --> 00:19:12.930 correct? I might be wrong on that. 480 00:19:12.930 --> 00:19:17.640 I don't know that it's declared valid across every single 481 00:19:17.640 --> 00:19:19.278 case on a categorical basis. 482 00:19:19.278 --> 00:19:20.190 Okay. I think you have 483 00:19:20.190 --> 00:19:21.510 to look at the specific facts 484 00:19:21.510 --> 00:19:23.687 and the specific evidence presented before you can- 485 00:19:23.687 --> 00:19:25.590 Assume I, you know, again, 486 00:19:25.590 --> 00:19:27.990 this is off the top of my head, but assume for sake 487 00:19:27.990 --> 00:19:31.920 of argument, that that's a valid presumption 488 00:19:31.920 --> 00:19:33.690 that gets you over the rail. 489 00:19:33.690 --> 00:19:36.093 Is this the same situation here? 490 00:19:42.517 --> 00:19:45.600 Assuming that assumption, which I don't take. 491 00:19:45.600 --> 00:19:48.060 Oh, we're gonna put a bookmark on that, 492 00:19:48.060 --> 00:19:50.541 but assuming that assumption, please tell me. 493 00:19:50.541 --> 00:19:52.710 I mean, I think there is an analog there. 494 00:19:52.710 --> 00:19:54.930 Again, I don't think that assumption is correct, 495 00:19:54.930 --> 00:19:56.610 but you'll take a look at that. 496 00:19:56.610 --> 00:19:57.676 Right. 497 00:19:57.676 --> 00:19:59.160 So in my remain, 498 00:19:59.160 --> 00:20:01.860 I think I've taken a swing at every pitch from the 499 00:20:01.860 --> 00:20:03.390 last inning that I wanted to. 500 00:20:03.390 --> 00:20:08.100 And in my last time, I just want to talk about the two facts 501 00:20:08.100 --> 00:20:10.440 that the Appeals Court in Ms. Oliver's case 502 00:20:10.440 --> 00:20:13.320 relied on for saying that this was different 503 00:20:13.320 --> 00:20:14.400 than Ms. Scordino's case. 504 00:20:14.400 --> 00:20:15.450 I actually don't think there 505 00:20:15.450 --> 00:20:17.100 is a meaningful difference here. 506 00:20:17.100 --> 00:20:19.200 So the most important fact that the Appeals Court 507 00:20:19.200 --> 00:20:21.602 relied on was the presence of this 508 00:20:21.602 --> 00:20:25.590 extra loop in the signature, which apparently nobody saw. 509 00:20:25.590 --> 00:20:28.740 I think, you know, before you can get from the existence 510 00:20:28.740 --> 00:20:30.390 of that mistake in the signature 511 00:20:30.390 --> 00:20:33.630 to a reasonable inference of guilty knowledge, 512 00:20:33.630 --> 00:20:37.110 you would be able to reasonably conclude 513 00:20:37.110 --> 00:20:40.050 that the defendant in fact did notice that, 514 00:20:40.050 --> 00:20:41.790 not just that she might have noticed it 515 00:20:41.790 --> 00:20:43.800 because this isn't an inquiry notice 516 00:20:43.800 --> 00:20:45.900 or constructive knowledge standard. 517 00:20:45.900 --> 00:20:48.540 And where even the bank teller who is, you know, 518 00:20:48.540 --> 00:20:51.505 the one person in this entire world who's supposed to be 519 00:20:51.505 --> 00:20:55.170 on the lookout for these things, there's no evidence 520 00:20:55.170 --> 00:20:56.764 that she saw anything there. 521 00:20:56.764 --> 00:20:59.790 The bank teller's not gonna have any insight 522 00:20:59.790 --> 00:21:02.640 unless the person is a terrible thief 523 00:21:02.640 --> 00:21:05.970 and is, you know, sweating profusely and in a panic. 524 00:21:05.970 --> 00:21:07.380 I mean, I understand your other point 525 00:21:07.380 --> 00:21:10.260 that the police can follow up. 526 00:21:10.260 --> 00:21:12.750 And that that may be different, 527 00:21:12.750 --> 00:21:14.801 but the bank teller's not gonna have any 528 00:21:14.801 --> 00:21:17.199 useful information, are they? 529 00:21:17.199 --> 00:21:20.430 I mean, often, at least I remember doing this 530 00:21:20.430 --> 00:21:23.190 when I opened a bank account, I filled out a signature card 531 00:21:23.190 --> 00:21:26.190 and this wasn't that long ago, you know. 532 00:21:26.190 --> 00:21:29.523 Open an account, when you're just cashing your check, 533 00:21:30.857 --> 00:21:33.551 they're not doing a lot with you, right? 534 00:21:33.551 --> 00:21:37.260 I mean, I guess my only point is the bank teller is 535 00:21:37.260 --> 00:21:39.180 the one person who is supposed to be on guard 536 00:21:39.180 --> 00:21:41.205 for these things, and if even they 537 00:21:41.205 --> 00:21:43.500 are not seeing anything wrong, I don't know 538 00:21:43.500 --> 00:21:47.013 how it's reasonable to conclude that my client probably did. 539 00:21:48.330 --> 00:21:49.560 Particularly when, you know, 540 00:21:49.560 --> 00:21:51.150 what we're talking about is the drawer's 541 00:21:51.150 --> 00:21:53.191 signature rather than. 542 00:21:53.191 --> 00:21:55.710 Isn't that just something that you would argue 543 00:21:55.710 --> 00:21:57.510 to the jury then? 544 00:21:57.510 --> 00:22:01.380 I mean, it seems like you're slightly differently positioned 545 00:22:01.380 --> 00:22:04.284 than the prior case, in that here there is 546 00:22:04.284 --> 00:22:07.500 something wrong on the face of the check 547 00:22:07.500 --> 00:22:09.390 and I'll grant you, it's an extra loop 548 00:22:09.390 --> 00:22:10.650 and maybe, you know, 549 00:22:10.650 --> 00:22:12.690 the average person might not have seen it. 550 00:22:12.690 --> 00:22:16.140 But isn't that something that the jury could infer? 551 00:22:16.140 --> 00:22:16.973 I think- That your 552 00:22:16.973 --> 00:22:19.920 client did see and therefore should have 553 00:22:19.920 --> 00:22:22.980 or would be on notice that this was not hers? 554 00:22:22.980 --> 00:22:25.230 I mean, I think it could be a jury argument, but 555 00:22:25.230 --> 00:22:27.780 before you get to the jury argument, you have to decide, 556 00:22:27.780 --> 00:22:30.420 the judge has to decide whether the case has enough 557 00:22:30.420 --> 00:22:31.253 to send it to the jury, whether- 558 00:22:31.253 --> 00:22:34.110 Well, isn't that part of it indulging all reasonable 559 00:22:34.110 --> 00:22:36.750 inferences in the favor of the Commonwealth, 560 00:22:36.750 --> 00:22:39.505 this one tips it over the edge? 561 00:22:39.505 --> 00:22:40.860 I mean. Pointing at the check that I 562 00:22:40.860 --> 00:22:41.693 have here. 563 00:22:41.693 --> 00:22:44.730 I mean, you know, taking the point 564 00:22:44.730 --> 00:22:47.250 that like almost any sufficiency argument 565 00:22:47.250 --> 00:22:48.330 could be a jury argument, 566 00:22:48.330 --> 00:22:52.350 I think, you know, that way of looking at it essentially 567 00:22:52.350 --> 00:22:55.080 leads to no case is insufficient 568 00:22:55.080 --> 00:22:56.347 because you could always make a jury argument. 569 00:22:56.347 --> 00:23:01.347 Well, no, I understand the standard, my question is that, 570 00:23:01.440 --> 00:23:03.720 you know, there's this fact 571 00:23:03.720 --> 00:23:07.817 that Eileen is spelled with two Ls instead of one L. 572 00:23:07.817 --> 00:23:12.420 And given that, not only do we have the account holder 573 00:23:12.420 --> 00:23:15.840 saying, "I don't know Ms. Oliver." 574 00:23:15.840 --> 00:23:19.950 We also have on the face of the check something that looks 575 00:23:19.950 --> 00:23:22.950 as, you know, somewhat different. 576 00:23:22.950 --> 00:23:25.472 I mean, if in fact she noticed it. 577 00:23:25.472 --> 00:23:27.810 And that's the big question. 578 00:23:27.810 --> 00:23:31.920 And I just, given how subtle this particular error is, 579 00:23:31.920 --> 00:23:35.512 it's not as though, you know, Eileen begins with an 'A-y.' 580 00:23:35.512 --> 00:23:39.240 You know, it's a very subtle mistake 581 00:23:39.240 --> 00:23:42.120 that would require you to essentially count the number 582 00:23:42.120 --> 00:23:45.300 of loops and compare it to the printed portion. 583 00:23:45.300 --> 00:23:48.030 Who knows how much scrutiny people actually give 584 00:23:48.030 --> 00:23:50.280 to the drawer's signature as opposed to their own name 585 00:23:50.280 --> 00:23:52.470 or the amount of the check. 586 00:23:52.470 --> 00:23:54.360 I just, I don't think that's enough. 587 00:23:54.360 --> 00:23:55.830 And that was the most important fact 588 00:23:55.830 --> 00:23:57.630 that the Appeals Court relied on. The other fact 589 00:23:57.630 --> 00:24:00.690 I just wanna make one quick point about Catania. 590 00:24:00.690 --> 00:24:04.740 So the Commonwealth analogizes the second fact essentially, 591 00:24:04.740 --> 00:24:06.390 which is, this is a large check 592 00:24:06.390 --> 00:24:08.910 and it's being cashed, to the situation in Catania. 593 00:24:08.910 --> 00:24:12.360 I think in looking at Catania, you really do have 594 00:24:12.360 --> 00:24:14.040 to take into account inflation. 595 00:24:14.040 --> 00:24:16.560 I wish I had thought of this when writing my brief, 596 00:24:16.560 --> 00:24:17.700 but you know. 597 00:24:17.700 --> 00:24:20.587 In July of 1974, when that check was presented, 598 00:24:20.587 --> 00:24:22.620 $9,000 would've been the equivalent 599 00:24:22.620 --> 00:24:26.191 of like $46,000 in January of 2019 dollars. 600 00:24:26.191 --> 00:24:29.520 So, you know, in terms of using Catania as a baseline 601 00:24:29.520 --> 00:24:32.693 for like what is a large enough check 602 00:24:32.693 --> 00:24:35.640 to make it more than unremarkable, 603 00:24:35.640 --> 00:24:38.970 I think we're in a different order of magnitude. 604 00:24:38.970 --> 00:24:41.580 The other thing I would stress is, you know, 605 00:24:41.580 --> 00:24:43.080 the bank is in the best position 606 00:24:43.080 --> 00:24:44.580 to determine which transactions 607 00:24:44.580 --> 00:24:45.930 are remarkable or unremarkable. 608 00:24:45.930 --> 00:24:48.210 If you recall in Catania, the check was 609 00:24:48.210 --> 00:24:49.590 so large they wouldn't actually let 610 00:24:49.590 --> 00:24:51.090 him cash the whole thing. 611 00:24:51.090 --> 00:24:53.040 And there's nothing like that here. 612 00:24:53.040 --> 00:24:55.353 I think that's another important difference. 613 00:24:56.430 --> 00:24:58.710 I don't want to overstay my welcome again, 614 00:24:58.710 --> 00:25:00.510 but thank you very much for your time. 615 00:25:00.510 --> 00:25:01.460 Thank you. 616 00:25:03.360 --> 00:25:05.037 Okay, Attorney DeBlander. 617 00:25:21.450 --> 00:25:24.060 Good morning, Your Honors. And may it please the Court. 618 00:25:24.060 --> 00:25:26.520 Assistant District Attorney Daniel Michael DeBlander 619 00:25:26.520 --> 00:25:29.490 for Middlesex on behalf of the Commonwealth. 620 00:25:29.490 --> 00:25:31.470 Turning immediately to the sufficiency 621 00:25:31.470 --> 00:25:34.801 of the evidence argument, primarily in Scordino, 622 00:25:34.801 --> 00:25:38.730 I am asking that, the Commonwealth asks this Court 623 00:25:38.730 --> 00:25:40.920 to reverse the judgment of the Appeals Court 624 00:25:40.920 --> 00:25:43.230 and find that when taken in the light most favorable 625 00:25:43.230 --> 00:25:45.720 to the Commonwealth, as this Court must do, 626 00:25:45.720 --> 00:25:49.050 that a rational trier of fact could find beyond 627 00:25:49.050 --> 00:25:52.020 a reasonable doubt, all of the elements of the crime 628 00:25:52.020 --> 00:25:54.780 of uttering a false check here, including that 629 00:25:54.780 --> 00:25:56.880 of knowledge and intent to defraud. 630 00:25:56.880 --> 00:26:00.780 But all we have is testimony as to the lack of knowledge 631 00:26:00.780 --> 00:26:03.566 of the account holder of the defendant. 632 00:26:03.566 --> 00:26:06.360 How does that translate into anything about the 633 00:26:06.360 --> 00:26:07.950 defendant's knowledge? 634 00:26:07.950 --> 00:26:10.620 Right, Your Honor, so this is obviously, as in most 635 00:26:10.620 --> 00:26:14.130 of these cases, circumstantial evidence of that knowledge. 636 00:26:14.130 --> 00:26:18.720 It is our position that where you have, 637 00:26:18.720 --> 00:26:21.000 where the Commonwealth introduces that testimony 638 00:26:21.000 --> 00:26:24.390 of the victim, where that they do not know the defendant, 639 00:26:24.390 --> 00:26:25.980 the defendant does not have any reason 640 00:26:25.980 --> 00:26:27.900 to expect payment from them, 641 00:26:27.900 --> 00:26:30.120 that they did not sign the check. 642 00:26:30.120 --> 00:26:33.210 And whereas, here in both these cases, the checks were found 643 00:26:33.210 --> 00:26:36.900 to have been stolen, that it is ultimately a question 644 00:26:36.900 --> 00:26:41.900 of fact for the jury, or in the first case 645 00:26:42.330 --> 00:26:44.460 the judge as finder of fact 646 00:26:44.460 --> 00:26:48.270 to, you know, infer from that transaction 647 00:26:48.270 --> 00:26:50.220 that this individual would have no reason 648 00:26:50.220 --> 00:26:52.893 to expect payment from a total stranger. 649 00:26:54.210 --> 00:26:57.750 So, you know that is, there are other factors 650 00:26:57.750 --> 00:27:00.150 that may be present in other cases here, 651 00:27:00.150 --> 00:27:03.420 but it is our position that that is a permissible inference 652 00:27:03.420 --> 00:27:04.740 for the finder of fact. 653 00:27:04.740 --> 00:27:08.820 But we don't even know whether, 654 00:27:08.820 --> 00:27:12.270 I mean, three other people live with this woman, right? 655 00:27:12.270 --> 00:27:13.370 Correct. 656 00:27:14.310 --> 00:27:17.280 We don't know whether one of them stole the check, right? 657 00:27:17.280 --> 00:27:21.160 So the fact that she doesn't know 658 00:27:22.260 --> 00:27:26.730 the person who cashed it, one of her three housemates 659 00:27:26.730 --> 00:27:27.960 may have stolen the check 660 00:27:27.960 --> 00:27:29.820 and written the check to this person, right? 661 00:27:29.820 --> 00:27:31.860 That's the thing that makes this difficult, right? 662 00:27:31.860 --> 00:27:35.010 You haven't established who stole the check. 663 00:27:35.010 --> 00:27:36.630 She didn't steal the check, right? 664 00:27:36.630 --> 00:27:39.744 She has probably no access to the home. 665 00:27:39.744 --> 00:27:40.950 That's right, Your Honor. 666 00:27:40.950 --> 00:27:43.260 So we do not have any evidence here 667 00:27:43.260 --> 00:27:46.350 of the defendant actually having stolen the check. 668 00:27:46.350 --> 00:27:49.290 We do have some testimony as to individuals who did live 669 00:27:49.290 --> 00:27:51.540 with the victim account holder here. 670 00:27:51.540 --> 00:27:54.900 However it is, you know, it is for the trier of fact 671 00:27:54.900 --> 00:27:56.460 to based on. Do you need that? 672 00:27:56.460 --> 00:27:58.920 Do you need some information on that? 673 00:27:58.920 --> 00:28:02.400 Do you need some information as your brother argues, okay, 674 00:28:02.400 --> 00:28:03.690 the police went to her 675 00:28:03.690 --> 00:28:06.690 and she had, she didn't give any explanation of 676 00:28:06.690 --> 00:28:09.630 how she got ahold of this, or do you need something else? 677 00:28:09.630 --> 00:28:11.130 Is what I'm trying to figure out. 678 00:28:11.130 --> 00:28:13.380 I understand this is a common situation. 679 00:28:13.380 --> 00:28:14.280 Sure. 680 00:28:14.280 --> 00:28:18.581 It is our position that that alone is sufficient here. 681 00:28:18.581 --> 00:28:22.110 You could have gone a couple of steps further, 682 00:28:22.110 --> 00:28:23.700 right? 683 00:28:23.700 --> 00:28:26.730 Yes, Your Honor, and often these cases do involve 684 00:28:26.730 --> 00:28:29.190 at least some other element. 685 00:28:29.190 --> 00:28:31.080 I think the baseline position here, 686 00:28:31.080 --> 00:28:33.968 and I think it is a basic empirical question that 687 00:28:33.968 --> 00:28:38.520 a rational trier of fact could consider is that 688 00:28:38.520 --> 00:28:41.550 when an individual, you know, we do have 689 00:28:41.550 --> 00:28:43.740 to introduce the testimony of the victim account holder, 690 00:28:43.740 --> 00:28:46.140 that they have no connection with this individual. 691 00:28:46.140 --> 00:28:49.480 I think a reasonable individual who would be cashing a check 692 00:28:50.460 --> 00:28:53.460 would know that they are not owed a substantial 693 00:28:53.460 --> 00:28:56.040 sum from a stranger, someone who. 694 00:28:56.040 --> 00:28:58.140 But let's just, lemme give you a hypothetical. 695 00:28:58.140 --> 00:29:01.350 So you've got an elderly person living with a caretaker 696 00:29:01.350 --> 00:29:03.460 and the caretaker steals the checks 697 00:29:04.800 --> 00:29:07.593 and you know, writes checks to people. 698 00:29:11.190 --> 00:29:14.460 The fact that the elderly person doesn't know 699 00:29:14.460 --> 00:29:18.300 the person getting the checks, that's enough to prove 700 00:29:18.300 --> 00:29:21.027 that the person who was cashing the checks 701 00:29:21.027 --> 00:29:22.890 knew they were fraudulent? 702 00:29:22.890 --> 00:29:26.433 I'm just, I'm concerned about that. 703 00:29:27.300 --> 00:29:29.940 I understand and I think the problem 704 00:29:29.940 --> 00:29:33.090 that you're alluding to here is something that my brother 705 00:29:33.090 --> 00:29:35.040 and sister referred to as sort of this issue 706 00:29:35.040 --> 00:29:39.900 of strict liability, making this a strict liability offense. 707 00:29:39.900 --> 00:29:42.663 And I think that as it was mentioned in Scordino- 708 00:29:43.680 --> 00:29:47.430 Need some more to draw the necessary inferences. 709 00:29:47.430 --> 00:29:49.860 Do you need, as in the other case, the misspelling 710 00:29:49.860 --> 00:29:50.970 of the person's name? 711 00:29:50.970 --> 00:29:54.450 Do you need something else or is this enough? 712 00:29:54.450 --> 00:29:55.920 I just, I honestly don't know. 713 00:29:55.920 --> 00:29:59.280 I would suggest that it alone is sufficient. 714 00:29:59.280 --> 00:30:02.100 And that I would point to at least not many, 715 00:30:02.100 --> 00:30:05.809 to address an issue that Justice Gaziano had raised, 716 00:30:05.809 --> 00:30:09.630 so the Commonwealth has not done a 50 state sort of survey 717 00:30:09.630 --> 00:30:11.010 of the law in this area. 718 00:30:11.010 --> 00:30:13.140 I think that my brother makes a number of good points 719 00:30:13.140 --> 00:30:15.900 that more recent cases are more probative of this 720 00:30:15.900 --> 00:30:18.420 and not all jurisdictions have either addressed, 721 00:30:18.420 --> 00:30:21.390 and very few have addressed this exact issue of 722 00:30:21.390 --> 00:30:23.744 sufficiency alone on the testimony 723 00:30:23.744 --> 00:30:25.950 of the victim account holder. 724 00:30:25.950 --> 00:30:29.190 There is often something further that's under consideration 725 00:30:29.190 --> 00:30:31.410 that does not, from the Commonwealth's perspective, 726 00:30:31.410 --> 00:30:33.992 mean that that is not something 727 00:30:33.992 --> 00:30:36.540 that can be considered sufficient. 728 00:30:36.540 --> 00:30:40.110 I would suggest that the best case 729 00:30:40.110 --> 00:30:43.347 to consider is State v. Williams, the Utah case 730 00:30:43.347 --> 00:30:47.310 where there it was drawn on the account 731 00:30:47.310 --> 00:30:49.602 of a business check. 732 00:30:49.602 --> 00:30:53.790 I'm not sure that necessarily makes any difference here. 733 00:30:53.790 --> 00:30:55.950 But the basis of the items- 734 00:30:55.950 --> 00:30:58.680 There were three checks all told. 735 00:30:58.680 --> 00:31:03.180 So the defendant had in his or her possession, 736 00:31:03.180 --> 00:31:05.070 three or four, I don't remember, 737 00:31:05.070 --> 00:31:08.520 but it wasn't just the one forged check 738 00:31:08.520 --> 00:31:12.150 and that seemed to weigh 739 00:31:12.150 --> 00:31:14.610 in the Utah decision. 740 00:31:14.610 --> 00:31:16.410 I think the ultimate finding 741 00:31:16.410 --> 00:31:19.500 and to quote at least some portion of that, 742 00:31:19.500 --> 00:31:21.450 I think the most relevant thing for the Court, 743 00:31:21.450 --> 00:31:23.580 there was the testimony of the victim 744 00:31:23.580 --> 00:31:24.990 that he was not employed, 745 00:31:24.990 --> 00:31:27.243 that he had no reason to know or expect payment here. 746 00:31:27.243 --> 00:31:29.130 It's true there may have been more checks, 747 00:31:29.130 --> 00:31:31.710 but I think the fundamental point being made by the Court, 748 00:31:31.710 --> 00:31:33.127 if I can read from part of their finding, 749 00:31:33.127 --> 00:31:34.830 "The defendant presented no evidence 750 00:31:34.830 --> 00:31:37.350 to controvert the logical inference 751 00:31:37.350 --> 00:31:38.610 which could be drawn by the jury. 752 00:31:38.610 --> 00:31:40.170 That without explanation as to 753 00:31:40.170 --> 00:31:41.520 where he got the check." 754 00:31:41.520 --> 00:31:43.560 You said the defendant didn't? 755 00:31:43.560 --> 00:31:45.240 The defendant doesn't have to do anything. 756 00:31:45.240 --> 00:31:46.080 Right. 757 00:31:46.080 --> 00:31:47.760 This is true and I think- Massachusetts- 758 00:31:47.760 --> 00:31:50.550 No, no, of course, no, Your Honor. 759 00:31:50.550 --> 00:31:52.980 So to address that point here, 760 00:31:52.980 --> 00:31:56.220 the defendant need not obviously testify 761 00:31:56.220 --> 00:31:58.008 and, or introduce any direct evidence. 762 00:31:58.008 --> 00:31:59.910 Right, that's why I found the Utah decision 763 00:31:59.910 --> 00:32:01.290 less than persuasive because 764 00:32:01.290 --> 00:32:03.270 they seemed to have shifted the burden, 765 00:32:03.270 --> 00:32:04.830 and the facts were a little different. 766 00:32:04.830 --> 00:32:07.530 The defendant was in possession of three stolen checks 767 00:32:07.530 --> 00:32:09.600 with no explanation. 768 00:32:09.600 --> 00:32:11.190 I didn't see any, 769 00:32:11.190 --> 00:32:13.050 and it doesn't sound like you have found any 770 00:32:13.050 --> 00:32:16.500 where this bare minimum is enough to take something 771 00:32:16.500 --> 00:32:17.400 to the jury. 772 00:32:17.400 --> 00:32:20.040 And maybe, you know, it doesn't say nothing, 773 00:32:20.040 --> 00:32:24.450 it does say that these kind of cases are insufficient. 774 00:32:24.450 --> 00:32:27.900 I would suggest, so I do agree with your point 775 00:32:27.900 --> 00:32:30.990 that there is no one direct case from a foreign jurisdiction 776 00:32:30.990 --> 00:32:33.810 on point where this is the sole evidence 777 00:32:33.810 --> 00:32:35.070 that the Court has considered. 778 00:32:35.070 --> 00:32:37.770 I would suggest that a number 779 00:32:37.770 --> 00:32:38.670 of the foreign jurisdictions 780 00:32:38.670 --> 00:32:41.790 and cases that we cite in our brief at least consider 781 00:32:41.790 --> 00:32:43.170 that as some evidence. 782 00:32:43.170 --> 00:32:45.480 So the question here is more, 783 00:32:45.480 --> 00:32:48.570 is this that baseline sufficient? 784 00:32:48.570 --> 00:32:50.880 I would suggest that, you know, 785 00:32:50.880 --> 00:32:53.040 it is ultimately an empirical question 786 00:32:53.040 --> 00:32:54.295 for this Court to decide. 787 00:32:54.295 --> 00:32:58.740 So your research has uncovered that most states 788 00:32:58.740 --> 00:33:01.517 require some sort of a plus factor? 789 00:33:01.517 --> 00:33:03.180 It's not a term I would use 790 00:33:03.180 --> 00:33:05.004 or that is present in the case law. 791 00:33:05.004 --> 00:33:05.837 I'm using it. 792 00:33:05.837 --> 00:33:06.990 But to extrapolate, yes, I would suggest 793 00:33:06.990 --> 00:33:09.690 that that is, frequently they are present. 794 00:33:09.690 --> 00:33:10.800 Okay. 795 00:33:10.800 --> 00:33:12.480 I would suggest actually that here, 796 00:33:12.480 --> 00:33:15.300 I mean the really Scordino is the sort of 797 00:33:15.300 --> 00:33:17.250 baseline case that we're considering. 798 00:33:17.250 --> 00:33:19.170 I would suggest- The amount? 799 00:33:19.170 --> 00:33:21.067 Remind me the amount in Scordino. 800 00:33:21.067 --> 00:33:21.963 $950. 801 00:33:24.002 --> 00:33:25.457 The other case was $3,000? 802 00:33:25.457 --> 00:33:26.497 $3600, Your Honor. 803 00:33:26.497 --> 00:33:29.790 $3,600 is a lot to cash, 804 00:33:29.790 --> 00:33:32.670 asked to be given in hundreds, right? 805 00:33:32.670 --> 00:33:36.553 Even in, is that a plus factor, 806 00:33:36.553 --> 00:33:39.180 the number itself? You know, walking out 807 00:33:39.180 --> 00:33:43.350 with $3,600 in cash, it seems a little unusual. 808 00:33:43.350 --> 00:33:46.230 I would suggest that a trier of fact could consider, 809 00:33:46.230 --> 00:33:48.720 not only the amount at issue, 810 00:33:48.720 --> 00:33:51.660 which, you know, $900, $3,600, 811 00:33:51.660 --> 00:33:52.860 we've talked a little bit 812 00:33:52.860 --> 00:33:54.270 and my brother opined about sort 813 00:33:54.270 --> 00:33:56.100 of the history of like with inflation. 814 00:33:56.100 --> 00:33:58.650 So taking into account some changes over time. 815 00:33:58.650 --> 00:34:01.860 I would also suggest this Court could consider that, I mean, 816 00:34:01.860 --> 00:34:04.560 cash is, taking something out in cash in those amounts 817 00:34:04.560 --> 00:34:07.500 these days when most or more frequently transactions 818 00:34:07.500 --> 00:34:09.330 are just conducted either online 819 00:34:09.330 --> 00:34:12.090 or in other capacities, is something 820 00:34:12.090 --> 00:34:14.184 that someone could consider. 821 00:34:14.184 --> 00:34:17.570 Whereas here, a substantial sum in the amount of $900 822 00:34:17.570 --> 00:34:20.880 or $3,600 is taken out immediately in cash. 823 00:34:20.880 --> 00:34:25.680 It is a factor that in addition to others, a trier of fact 824 00:34:25.680 --> 00:34:27.720 could consider because it provides the defendant 825 00:34:27.720 --> 00:34:30.716 with immediate access to the funds and 826 00:34:30.716 --> 00:34:31.830 a substantial amount. But when you say, 827 00:34:31.830 --> 00:34:33.990 the trier fact could consider, 828 00:34:33.990 --> 00:34:35.640 there were a lot of these cases, 829 00:34:35.640 --> 00:34:37.680 these uttering cases in the community courts, 830 00:34:37.680 --> 00:34:40.785 and if you focus on Ms Scordino's case, 831 00:34:40.785 --> 00:34:44.320 none of what would be open to the defendant 832 00:34:45.990 --> 00:34:47.880 is evidence, right? 833 00:34:47.880 --> 00:34:51.990 So on cross-examination of the account holder 834 00:34:51.990 --> 00:34:54.720 that you didn't, you don't know her, you don't know 835 00:34:54.720 --> 00:34:57.210 whether or not somebody gave her the check 836 00:34:57.210 --> 00:35:00.330 or that this was, all of that stuff is impeachment. 837 00:35:00.330 --> 00:35:03.000 It's not evidence. The argument that, 838 00:35:03.000 --> 00:35:05.160 hey, they've presented no one to tell you 839 00:35:05.160 --> 00:35:07.560 that she didn't get it from some third party. 840 00:35:07.560 --> 00:35:09.060 That's not evidence. 841 00:35:09.060 --> 00:35:12.697 So all you'll have is just the account holder saying, 842 00:35:12.697 --> 00:35:14.735 "I don't know this person." 843 00:35:14.735 --> 00:35:18.480 If we're not gonna take a categorical approach, 844 00:35:18.480 --> 00:35:23.480 how does this get over the hump in Ms Scordino's case? 845 00:35:23.490 --> 00:35:24.960 I know all Ms. Oliver's case 846 00:35:24.960 --> 00:35:27.270 or Oliver's case, there's these other things 847 00:35:27.270 --> 00:35:28.103 that we can talk to. 848 00:35:28.103 --> 00:35:31.350 But just in the Scordino case, 849 00:35:31.350 --> 00:35:34.428 how does this get over the hump? 850 00:35:34.428 --> 00:35:36.390 Thank you Justice Georges. 851 00:35:36.390 --> 00:35:40.200 I would suggest that the Court 852 00:35:40.200 --> 00:35:43.950 could also consider this issue of immediate cashing. 853 00:35:43.950 --> 00:35:47.306 I know that this, the Scordino case, 854 00:35:47.306 --> 00:35:50.490 the defendant was actually cashing this at her own bank, 855 00:35:50.490 --> 00:35:52.860 but that happened to also be the bank of the check 856 00:35:52.860 --> 00:35:56.190 of the victim account holder, as well. 857 00:35:56.190 --> 00:35:58.770 So it is at least some other factor 858 00:35:58.770 --> 00:35:59.910 that could be considered. 859 00:35:59.910 --> 00:36:01.230 That people would prefer 860 00:36:01.230 --> 00:36:03.780 to cash the check versus depositing it? 861 00:36:03.780 --> 00:36:05.880 That where a defendant is cashing a check 862 00:36:05.880 --> 00:36:08.940 that has later been shown to have been stolen, 863 00:36:08.940 --> 00:36:10.200 not necessarily shown 864 00:36:10.200 --> 00:36:13.030 or proven at trial by the defendant, 865 00:36:13.030 --> 00:36:17.130 that that gives rise in the mind of a rational trier of fact 866 00:36:17.130 --> 00:36:19.740 of some sort of something untoward 867 00:36:19.740 --> 00:36:22.410 that they consider in addition to the evidence 868 00:36:22.410 --> 00:36:24.363 of the testimony of the account holder. 869 00:36:25.455 --> 00:36:26.730 Cashing the check at your own bank 870 00:36:26.730 --> 00:36:28.921 is suspicious? Why would that be? 871 00:36:28.921 --> 00:36:33.000 I think she would have to be cashing it at this bank 872 00:36:33.000 --> 00:36:34.980 regardless, because it was also the bank 873 00:36:34.980 --> 00:36:38.790 at which the victim account holder did their banking. 874 00:36:38.790 --> 00:36:40.680 That sounds like a total wash. 875 00:36:40.680 --> 00:36:43.140 There's no significance to that, right? 876 00:36:43.140 --> 00:36:46.184 I think it's the taking it out in cash that that could be 877 00:36:46.184 --> 00:36:47.130 considered. 878 00:36:47.130 --> 00:36:50.583 Why? Why is taking something out in cash? 879 00:36:51.729 --> 00:36:54.230 Cash is still king, right? 880 00:36:54.230 --> 00:36:56.073 At all indicative of knowledge? 881 00:36:57.888 --> 00:36:59.910 Cash provides some, you know, 882 00:36:59.910 --> 00:37:02.284 immediate access to funds. 883 00:37:02.284 --> 00:37:04.170 Some people need immediate access to cash. 884 00:37:04.170 --> 00:37:05.850 I understand, Your Honor. Yes. 885 00:37:05.850 --> 00:37:10.140 And I think that this may be not as strong 886 00:37:10.140 --> 00:37:13.470 a case as in taking out $3,600 in 887 00:37:13.470 --> 00:37:16.150 Oliver in immediate cash. But it also- 888 00:37:16.150 --> 00:37:17.940 Can I ask you on Oliver, 889 00:37:17.940 --> 00:37:19.650 if we're gonna pivot to that, 890 00:37:19.650 --> 00:37:22.610 why is that extra loop 891 00:37:22.610 --> 00:37:26.550 enough to push us over the edge where, you know, assuming 892 00:37:26.550 --> 00:37:27.780 Scordino does not? 893 00:37:27.780 --> 00:37:30.275 So in that, I mean I, so I think 894 00:37:30.275 --> 00:37:35.010 the Oliver Court correctly notes that 895 00:37:35.010 --> 00:37:39.137 it is reasonable to presume that an individual 896 00:37:39.137 --> 00:37:41.250 who is cashing a check for the amount 897 00:37:41.250 --> 00:37:43.620 of $3,600 will have reviewed the check. 898 00:37:43.620 --> 00:37:46.170 I think it's also obvious that they had 899 00:37:46.170 --> 00:37:47.910 to have at least looked at the check here. 900 00:37:47.910 --> 00:37:50.760 Ms. Oliver needed to know the bank that she was going to, 901 00:37:50.760 --> 00:37:52.860 to cash it, that it was being drawn on. 902 00:37:52.860 --> 00:37:54.540 So some review of the check was. 903 00:37:54.540 --> 00:37:55.950 Does the error matter? 904 00:37:55.950 --> 00:37:59.880 Right? The extra loop in Eileen is different than, you know, 905 00:37:59.880 --> 00:38:03.180 if her name was spelled differently, you know, 906 00:38:03.180 --> 00:38:06.120 as your opposing counsel pointed out. 907 00:38:06.120 --> 00:38:11.031 It certainly allows a trier of fact to note 908 00:38:11.031 --> 00:38:14.160 there's something extra that's a bit untoward here. 909 00:38:14.160 --> 00:38:16.500 This check was found, it was stolen, 910 00:38:16.500 --> 00:38:19.530 it is not the signature of the victim account holder 911 00:38:19.530 --> 00:38:21.420 and is very clearly not that signature 912 00:38:21.420 --> 00:38:24.123 because it does contain this extra loop. 913 00:38:27.440 --> 00:38:29.190 And excuse me. Counsel, excuse me. 914 00:38:29.190 --> 00:38:33.780 Am I not correct that no one during the entire litigation 915 00:38:33.780 --> 00:38:36.780 of a trial over the uttering of this check 916 00:38:36.780 --> 00:38:38.803 noticed the extra loop? 917 00:38:38.803 --> 00:38:40.620 At the trial, that it is true 918 00:38:40.620 --> 00:38:43.301 that this was not mentioned directly by the prosecutor. 919 00:38:43.301 --> 00:38:44.670 The prosecutor- It was not mentioned. 920 00:38:44.670 --> 00:38:45.503 Correct? 921 00:38:45.503 --> 00:38:46.336 Correct, Your Honor. 922 00:38:46.336 --> 00:38:49.800 So you are arguing that it is a reasonable inference 923 00:38:49.800 --> 00:38:54.090 that this woman necessarily examined the signature 924 00:38:54.090 --> 00:38:57.780 when the lawyers who were trying a case 925 00:38:57.780 --> 00:39:02.220 over whether this is a false check, did not notice the loop. 926 00:39:02.220 --> 00:39:04.920 Your Honor, what I'm suggesting is rather 927 00:39:04.920 --> 00:39:08.460 that given the presence of that extra loop here, 928 00:39:08.460 --> 00:39:11.160 this is something the trier of fact, who were encouraged 929 00:39:11.160 --> 00:39:13.560 to consider the signature both on the front 930 00:39:13.560 --> 00:39:16.650 and back of the check would have had at their disposal 931 00:39:16.650 --> 00:39:18.330 in considering the disposition of this case. 932 00:39:18.330 --> 00:39:20.310 I agree with you that our trier of fact 933 00:39:20.310 --> 00:39:24.690 could extremely reasonably look at the loop in deciding 934 00:39:24.690 --> 00:39:28.110 whether it is Eileen really signed the check. 935 00:39:28.110 --> 00:39:29.760 But we're talking about something different, 936 00:39:29.760 --> 00:39:31.950 which is whether there is sufficient evidence 937 00:39:31.950 --> 00:39:36.330 of the defendant's knowledge that this was a forged check. 938 00:39:36.330 --> 00:39:40.770 So can you please explain why it is reasonable to assume 939 00:39:40.770 --> 00:39:43.303 that a person, and we're talking about 940 00:39:43.303 --> 00:39:45.720 you used the word empirical before, 941 00:39:45.720 --> 00:39:47.700 and I think that's a good word here 942 00:39:47.700 --> 00:39:49.320 because we're sort of debating 943 00:39:49.320 --> 00:39:51.240 what do people do with checks. 944 00:39:51.240 --> 00:39:54.533 And so can you explain the basis for your argument 945 00:39:54.533 --> 00:39:57.180 that it's reasonable to assume 946 00:39:57.180 --> 00:40:00.390 that everyone in this courtroom when we deposit a check, 947 00:40:00.390 --> 00:40:04.290 we have looked at the signature and the spelling. 948 00:40:04.290 --> 00:40:06.440 Sure, Your Honor. So I would suggest that 949 00:40:07.890 --> 00:40:10.110 it is a number of factors here that we are asking 950 00:40:10.110 --> 00:40:11.400 that be considered together. 951 00:40:11.400 --> 00:40:14.340 Not just that everyone always reviews the signature 952 00:40:14.340 --> 00:40:16.140 on a check that they're depositing. 953 00:40:16.140 --> 00:40:18.935 Here, this is a check from an individual that 954 00:40:18.935 --> 00:40:22.890 the account owner has testified they do not know 955 00:40:22.890 --> 00:40:23.970 this individual. 956 00:40:23.970 --> 00:40:25.943 So we believe we've established that 957 00:40:25.943 --> 00:40:29.200 this is a stranger cashing a $3,600 958 00:40:30.150 --> 00:40:31.530 check on an account. 959 00:40:31.530 --> 00:40:32.820 Sorry if I may interrupt you there. 960 00:40:32.820 --> 00:40:35.400 So there's another empirical question. 961 00:40:35.400 --> 00:40:37.890 So I'm sure you'll agree with me. 962 00:40:37.890 --> 00:40:39.060 There are people who do not have 963 00:40:39.060 --> 00:40:40.710 bank accounts, is that correct? 964 00:40:40.710 --> 00:40:41.543 Correct, Your Honor. 965 00:40:41.543 --> 00:40:44.790 And they're entitled to cash checks 966 00:40:44.790 --> 00:40:46.650 that are given to them, correct? 967 00:40:46.650 --> 00:40:47.483 Correct, Your Honor. 968 00:40:47.483 --> 00:40:51.976 So is it a reasonable for a fact finder to assume 969 00:40:51.976 --> 00:40:54.105 that it is necessarily suspicious 970 00:40:54.105 --> 00:40:57.060 that a person cashes a check? 971 00:40:57.060 --> 00:40:58.410 Not necessarily, Your Honor. 972 00:40:58.410 --> 00:41:01.200 But here, I would suggest that something, an extra factor 973 00:41:01.200 --> 00:41:04.056 that can be considered is sort of, this was discussed a bit 974 00:41:04.056 --> 00:41:07.260 earlier as well, this sort of the case law 975 00:41:07.260 --> 00:41:09.330 around receiving stolen property. 976 00:41:09.330 --> 00:41:11.820 So these checks at issue are not just 977 00:41:11.820 --> 00:41:13.080 checks in the normal course. 978 00:41:13.080 --> 00:41:15.330 They are checks that were established at trial 979 00:41:15.330 --> 00:41:18.776 to have been stolen, not necessarily established as 980 00:41:18.776 --> 00:41:20.940 like stolen by the defendant. 981 00:41:20.940 --> 00:41:24.210 And so I would encourage this Court to look to 982 00:41:24.210 --> 00:41:25.380 some of the case law around that 983 00:41:25.380 --> 00:41:28.080 and the jury instructions on receiving stolen property 984 00:41:28.080 --> 00:41:30.120 as well, which allow permissible inference. 985 00:41:30.120 --> 00:41:31.530 That's still good case law, correct? 986 00:41:31.530 --> 00:41:34.080 With, sorry. Yes, yes, Your Honor. 987 00:41:34.080 --> 00:41:36.650 And so whereas here is- 988 00:41:36.650 --> 00:41:38.100 Is the analogy apt? 989 00:41:38.100 --> 00:41:39.300 I wonder, you know, 990 00:41:39.300 --> 00:41:40.710 now I'm sorry Chief, 991 00:41:40.710 --> 00:41:42.690 if I could continue. No go ahead. 992 00:41:42.690 --> 00:41:47.398 If you get a stolen flat screen TV 993 00:41:47.398 --> 00:41:52.398 that's going to cause you to wonder where this came from. 994 00:41:52.800 --> 00:41:55.380 But there are multiple scenarios 995 00:41:55.380 --> 00:41:58.470 that your opposing counsel has delineated 996 00:41:58.470 --> 00:42:02.010 where you might be getting a check 997 00:42:02.010 --> 00:42:04.500 from a party whom you have had 998 00:42:04.500 --> 00:42:07.135 no contact with. 999 00:42:07.135 --> 00:42:11.850 It seems like the analogy might not work 1000 00:42:11.850 --> 00:42:14.190 in that context, where there's multiple different 1001 00:42:14.190 --> 00:42:16.590 explanations for getting a check. 1002 00:42:16.590 --> 00:42:18.810 Whereas, you know, the flat screen TV showing 1003 00:42:18.810 --> 00:42:22.440 up in your living room is cause for pause. 1004 00:42:22.440 --> 00:42:24.450 Thank you, Your Honor. I would suggest that 1005 00:42:24.450 --> 00:42:27.030 it is still, it is analogous enough. 1006 00:42:27.030 --> 00:42:29.610 This is still, we're discussing property in the amount 1007 00:42:29.610 --> 00:42:32.220 of a sum of money. 1008 00:42:32.220 --> 00:42:34.440 The checks were established to have been stolen 1009 00:42:34.440 --> 00:42:37.020 and the defendant is the one trying to cash them. 1010 00:42:37.020 --> 00:42:39.870 I would suggest the case law in receiving stolen 1011 00:42:39.870 --> 00:42:43.410 property also talks about the recency of the theft. 1012 00:42:43.410 --> 00:42:46.140 And in, I would suggest that the closeness in time, 1013 00:42:46.140 --> 00:42:49.290 at least in Oliver, was established between 1014 00:42:49.290 --> 00:42:53.040 it having been stolen and it having been cashed. 1015 00:42:53.040 --> 00:42:55.230 Again, just to follow up on Justice Wendlandt's 1016 00:42:55.230 --> 00:42:59.640 point though. I mean, we want free transferring of checks. 1017 00:42:59.640 --> 00:43:04.140 The whole UCC is based on sort of the idea that 1018 00:43:04.140 --> 00:43:08.850 we don't want it too hard to use checks 1019 00:43:08.850 --> 00:43:11.190 and endorse checks and pass them on. 1020 00:43:11.190 --> 00:43:15.270 That's sort of the nature of check writing, right? 1021 00:43:15.270 --> 00:43:16.410 Yes, Your Honor. 1022 00:43:16.410 --> 00:43:18.870 A little different than stolen property. 1023 00:43:18.870 --> 00:43:20.040 I would suggest it's something 1024 00:43:20.040 --> 00:43:21.420 that could be considered in addition 1025 00:43:21.420 --> 00:43:23.160 to the other factors at at play here. 1026 00:43:23.160 --> 00:43:24.930 I do realize I'm over my time if I can address 1027 00:43:24.930 --> 00:43:26.760 at least one further point. 1028 00:43:26.760 --> 00:43:29.254 A lot of these questions have concerned issues where 1029 00:43:29.254 --> 00:43:33.000 there have been a number of hypotheticals, 1030 00:43:33.000 --> 00:43:37.170 the talk of possible, like third parties here, as well. 1031 00:43:37.170 --> 00:43:40.051 I suggest that this is ultimately an issue 1032 00:43:40.051 --> 00:43:42.000 for the trier of fact. 1033 00:43:42.000 --> 00:43:44.250 And that defense counsel and the defendant 1034 00:43:44.250 --> 00:43:46.290 always have a right to introduce further evidence 1035 00:43:46.290 --> 00:43:48.750 of some, of how they obtained the check themselves. 1036 00:43:48.750 --> 00:43:50.460 They're not obligated to testify 1037 00:43:50.460 --> 00:43:52.050 or to introduce such evidence. 1038 00:43:52.050 --> 00:43:55.980 However, it is not a strict liability of defense. 1039 00:43:55.980 --> 00:43:57.660 It is, defense counsel has a right 1040 00:43:57.660 --> 00:44:01.200 to present their case as they deem appropriate. 1041 00:44:01.200 --> 00:44:03.600 And it is a reasonable inference with the evidence 1042 00:44:03.600 --> 00:44:08.010 that was presented here, that a individual has no reason 1043 00:44:08.010 --> 00:44:11.130 to expect payment from an account holder would know 1044 00:44:11.130 --> 00:44:13.480 that the check is fraudulent when they cash it.