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United States v. Cruz

April 30, 1979

UNITED STATES OF AMERICA, APPELLEE,
v.
RAFAEL ALVARADO DE LA CRUZ AND ALONSO A. BAUTISTA, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Southern District of New York.

Present: HONORABLE J. JOSEPH SMITH, HONORABLE THOMAS J. MESKILL, Circuit Judges, HONORABLE CHARLES S. HAIGHT, JR., District Judge*fn*

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.

Rafael Alavarado DeLaCruz and Alonso A. Bautista appeal from judgments of conviction entered in the United States District Court for the Southern District of New York after a jury trial before Gerard L. Goettel, Judge. DeLaCruz and Bautista were convicted of conspiracy to defraud the United States by obtaining fraudulently claimed income tax refunds and conspiracy to utter fraudulently obtained tax refund checks with forged endorsements, 18 U.S.C.§ 371. In addition, Bautista was convicted of uttering seven United States Treasury checks knowing them to bear forged endorsements, 18 U.S.C. § 495. DeLaCruz was sentenced to two years' imprisonment and Bautista was sentenced to two concurrent two-year terms of imprisonment. Both appellants are free on bail pending disposition of this appeal.

Bautista's claim on appeal is that the district court erred by admitting similar act evidence concerning Bautista's participation in an earlier scheme fraudulently to obtain unemployment compensation checks from the State of New York. Because Bautista's state of mind in admittedly cashing certain checks was a central issue at trial, under United States v. Williams, 577 F.2d 188, 191 (2d Cir. 1978), we cannot say that the district court erred in viewing this similar act evidence as relevant to the issues of intent and knowledge, and as more probative than prejudicial. Fed. R. Evid. 404(b) and 403. The court's charge properly limited the jury's consideration of the evidence.

DeLaCruz claims that the district court erred in excluding, as hearsay, the transcript of statements made under oath by an unavailable co-defendant in the course of an interview with agents of the Internal Revenue Service. Judge Goettel correctly determined that the statement was in large part exculpatory of the declarant, that those portions which tended to expose the declarant to criminal liability did not tend to exculpate DeLaCruz, and that no corroborating circumstances clearly indicated the trustworthiness of much of the statement. The statement was hearsay and therefore its exclusion was not error. Fed. R. Evid. 804(b)(3); United States v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976).

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgments of conviction of ...


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