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United States v. Pope

July 20, 1984

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KENNETH D. POPE, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 83 CR 0003-Allen Sharp, Judge.

Cummings, Chief Judge, Coffey and Flaum, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

Defendant Kenneth Pope was convicted, following a jury trial, of aiding and abetting the false making and forging of an endorsement on a United States income tax-refund check, in violation of 18 U.S.C. §§ 2 and 495.*fn1 We affirm.

I.

The relevant evidence, viewed in the light most favorable to the prosecution, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), is as follows. Anita L. Betty received her United States income tax-refund check on February 4, 1983. Her daughter, Carla Rose, found the check and took it, without Betty's permission or knowledge, to the house of a friend, Connie White. While Rose was at White's house, White's cousin, Joseph Williams, saw the check and told Rose that the three of them were going to cash it. Rose, White and Williams attempted to cash the check that day without success.

The next day, Williams returned to White's house (where Rose had spent the night) with the defendant, Kenneth Pope. Williams told Pope that Rose had a check she was trying to cash, showed Pope the check and asked him where they could cash it. Pope said that he knew a woman who had a white baby and indicated that they might be more successful in cashing the check with the baby. Pope, Williams, White, Rose and another man tried to borrow the baby to aid in the check-cashing scheme, but the mother refused.

The group then went to several banks to try to cash the check, but was unable to do so and ended up at Pope's house. The defendant went inside and returned with a blank Social Security card. Pope and the others then drove to the Hansel Center in South Bend. Rose showed Pope and Williams the check, which had her mother's name and Social Security number on it, and the two of them went inside while Rose waited in the car with the others. Pope had an acquaintance of his, who worked at the Center, type Betty's name and Social Security number on the formerly-blank Social Security card. When Pope returned to the car, he told Rose to sign her mother's name on the card.

The next stop was Jack's Furniture Mart in South Bend. Rose and Williams went in first and Pope entered the store several minutes later. Rose and Williams picked out some furniture, paid for it with the tax refund check which Rose endorsed in her mother's name (using the forged Social Security card as identification) and received the difference between the amount of the check and the value of the furniture in change.

Pope, Williams and another man returned the next day to pick up the furniture and while the furniture was being loaded the store's owner was advised that the check was stolen and confronted Williams. The three men fled with the furniture, which they later sold.

II.

Defendant's principal argument on appeal is that the trial court erred in denying his motion for acquittal at the conclusion of the presentation of the evidence. A motion for acquittal may not be granted if, viewing the evidence in the light most favorable to the prosecution, there is relevant evidence from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. United States v. Roman, 728 F.2d 846, 857 (7th Cir. 1984). When applying this standard, a court must, of course, keep in mind that it is the jury which has the exclusive authority to assess the witnesses' credibility, resolve evidentiary conflicts and draw reasonable inferences from the evidence presented. Id.

Pope contends on appeal that the evidence at trial supports, at most, a charge of aiding and abetting uttering and publishing a forged check*fn2 rather than aiding and abetting the forging of the endorsement on the check. We disagree.

The aiding and abetting statute, 18 U.S.C. § 2 (1982), punishes as principals those who aided and abetted a crime. United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984). In order to find someone guilty of aiding and abetting a crime, the evidence must demonstrate -- according to Judge Learned Hand's formulation, which this circuit has adopted -- that the defendant was associated with a criminal venture, that he participated in it as something he wished to bring about and that he sought by his actions to make it succeed. United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); Galiffa, 734 F.2d at 311. Thus, the prosecution must prove (1) association, i.e., that the defendant shared the criminal intent of the principal; and (2) participation, i.e., some overt act designed to aid in the venture's success. United States v. Beck, 615 F.2d 441, 448-49 (7th Cir. 1980); United States v. Greer, 467 F.2d 1064, 1069 (7th ...


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