Pina v. United States

HEALY, Circuit Judge.

I concur in Judge Garrecht’s disposition of the appeal but wish to add a word on the only point presented to us that seems to me at all worthy of notice, namely, the denial of appellant’s request to reopen the case for the purpose of showing that the accomplice, Rodriguez, had been put on probation.

On cross examination by appellant’s counsel Rodriguez testified that he had pleaded guilty to the charge of uttering the forged endorsement. The subject was not further pursued. In denying the request to reopen the court observed that since Rodriguez had been granted probation his case was closed and no inducement existed at the time of trial for his testifying one way rather than another, hence the fact of his probation was immaterial.

While it is true that at the time of testifying Rodriguez was under no promise or hope of reward, I think that if the case had been a close one on its facts it would have been advisable to grant the motion to reopen so that the fact of probation might be before the jury for what it was worth. Some cynic has defined gratitude as a lively appreciation of favors to come. However that may be, it is arguable that a sense of gratitude on the part of -one who has been given probation might influence him to shade or color his testimony favorably to the government in the later trial of an accomplice. It may even be arguable that a probationer would feel himself under an implied obligation to be helpful in that way. But it is clear from the record before us that proof of the fact of probation could not have changed the result.

Independently of Rodriguez’ testimony, the showing of appellant’s participation in the felonious uttering of the check was conclusive. The evidence included a voluntary statement, amounting to a confession, made by appellant to a secret service agent. The account of the matter contained in this admission or confession did not differ in any essential particular from the account given by Rodriguez. Appellant did not take the stand or attempt m any way to impeach the confession or refute the testimony of the agent concerning it. The only witness called by the defense was Sally Arias, a girl with whom appellant was living. This witness was shown to have made and signed a statement tending directly to incriminate appellant in the uttering of the forgery. On cross examination at the trial she admitted having made the statement, which was then introduced in evidence. Appellant and Rodriguez, according to this-signed declaration of the Arias girl, accompanied each other at the time the treasury check was taken out to be cashed, appellant furnishing the car. In this respect her account squares with the stories both of appellant and Rodriguez. The journey taken by the two for the purpose of getting the check cashed was the crucial incident in the case. The Arias girl, admittedly not being along, had no means of knowing what happened in the course of it. Her testimony had to dp largely with the unimportant question of who had forged the endorsement of the payee’s name. As to this, it is to be noted that appellant was not charged with having forged the endorsement but only with uttering it. The only item she had to offer of any substan *896 tial importance to appellant was her testimony to the effect that he did not accompany Rodriguez at the time the check was cashed. Her signed statement, however, effectively cancelled out that testimony.

In this condition of the record there can be no justification for reversing the conviction on speculations concerning the possible mental reactions of a probationer.