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Furlow v. United States

United States Court of Appeals for the Ninth Circuit

February 4, 1981, Argued ; May 4, 1981, Decided

No. 80-1560

Opinion

 [*765]  Appellant seeks reversal and vacation of the District Court's finding of guilt at a bench trial concluded June 20, 1980, and the subsequent sentence and judgment. He argues thirteen reasons/errors in this Court which on consideration should be narrowed to five for processing in this forum.

  [*766]  Appellant attacks the evidence as inadequate to support his conviction. This Court uses the guidelines it previously set forth in United States v. Lincoln, 494 F.2d 833, 840 (9th Cir. 1974):

] When determining the sufficiency of the evidence to sustain a conviction, the evidence must be taken in a light most favorable to the Government * * * The reviewing court must assume that the trier of facts resolved [**2]  all matters of credibility of witnesses, evidentiary conflicts, and drew all reasonable inferences from proven facts in a manner which would support the verdict. United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969).

Appellant was indicted for violation of 18 U.S.C. § 495, in two counts, possession of, and uttering, with intent to defraud the United States, a United States treasury check issued to Wilfred E. Peatross. The evidence revealed, among other salient facts, that defendant presented the questioned check for cashing, November 14, 1978, at the Pacific National Bank in Yakima, Washington. He later deposited a portion of the check in a savings account at Rainier National Bank, where his handwriting appears on a deposit slip and a signature card. He lived at the check address where the payee no longer lived; payee had not authorized the interception, possession, or use of the check by defendant. The evidence is more than sufficient to support the verdict and finding. Cf., Lustiger v. United States, 386 F.2d 132 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S. Ct. 1042, 19 L. Ed. 2d 1142 (1968); United States v. Stein, 500 F.2d 678 (9th Cir. 1974) and United States v. [**3]  Hawkins, 614 F.2d 85 (5th Cir. 1980), cert. denied, 446 U.S. 955, 100 S. Ct. 2926, 64 L. Ed. 2d 814 (1980) (evidence held sufficient to sustain certain convictions under mail fraud statute).

A second series of errors is urged on the court in the taking and using of the testimony procured by a deposition of Wilfred Peatross, owner/payee of the check, in St. Louis, Missouri, pursuant to Rule 15(a), Federal Rules of Criminal Procedure. 2 The district judge, finding exceptional circumstances to exist and the deposition in the interest of justice, on June 9, 1980, ordered the deposition for June 13, 1980, secured defendant in the processing thereof by issuing a Writ of Habeas Corpus to the Sheriff of Yakima County (where appellant was in state custody) to have appellant present during the deposition, and, because of the absence of appointed counsel on active military duty, appointed J. Adam Moore, Esquire, whom the court found competent for the purpose, to represent appellant at the deposition. It appears that Moore and a deputy United States Marshal met with Furlow, who was tendered expenses for purpose of attending but chose not to attend. He now makes serious objections to the use [**4]  of the deposition.

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644 F.2d 764 *; 1981 U.S. App. LEXIS 13647 **

Ross FURLOW, Appellant, v. UNITED STATES of America, Appellee.

Prior History:  [**1]  Appeal from the United States District Court for the Eastern District of Washington.

CORE TERMS

deposition, speedy trial, continuance, custody, excludable, attend, notice

Criminal Law & Procedure, Standards of Review, Substantial Evidence, General Overview, Obstruction of Administration of Justice, Bail Jumping & Failure to Appear, Preliminary Proceedings, Depositions, Procedural Matters, Scope, Bail, Harmless & Invited Error, Civil Procedure, Costs, Costs Recoverable, Depositions & Transcripts, Plain Error, Speedy Trial, Trials, Defendant's Rights, Right to Speedy Trial, Dismissal, Involuntary Dismissals, Failure to Prosecute, Arraignments, Governments, Courts, Court Personnel, Motions, Statutory Right, Excludable Time Periods