Fraudulent Check Endorsements Were Not Hearsay

First Circuit concludes that the hearsay rule did not apply to check signature endorsements which were forged and therefore not offered for the truth of the matter asserted, in United States v. Bowles, _ F.3d _ (1st Cir. May 7, 2014) (No. 13–1575)

The rule against hearsay bars an out of court statement which is offered "to prove the truth of the matter asserted in the statement," under FRE 801(c)(2). When a statement is not offered for its truth, then the hearsay rule does not apply. A recent example was provided in a First Circuit case concerning the theft of government funds which was authored by retired Associate Justice David Souter.

Trial Court Proceedings: Were Check Signature Endorsements Hearsay?

Defendant Bowles was prosecuted for fraudulently collecting more than $77,000 in federal civil service retirement survivor annuity payments made payable to her parents after they had passed away. At trial, photocopies of the annuity checks were admitted. The defendant did not object to the admission of the checks, which appeared to be admissible as a public record under FRE 803(8), but challenged the signature endorsements as hearsay. After her conviction, she appealed contending the evidence was inadmissible hearsay.

First Circuit: Not Offered For The Truth Of The Matter Asserted

The First Circuit found that the hearsay rule did not apply to the fraudulent signature endorsements. Specifically, "These endorsements were all written after [defendant] Bowles’s parents had died, are indisputably false, and therefore cannot have been offered to prove the truth of what they implicitly state." Bowles, _ F.3d at _ (citing FRE 801 (defining “hearsay” as a “statement . . . offer[ed] in evidence to prove the truth of the matter asserted”); United States v. Vigneau, 187 F.3d 70, 74 (1st Cir. 1999) (“Whoever wrote the name ‘Patrick Vigneau’ on the [money order forms] was stating in substance: ‘I am Patrick Vigneau . . . .’”)).

Additionally, the check endorsements were admitted to establish the fraudulent conduct and were "a legally operative verbal act of imposture for a fraudulent purpose" and were similar to a bribe or threat. Bowles, _ F.3d at _ (citing FRE 801(c) ACN (excluding as hearsay "the entire category of ̀verbal acts’ . . . in which the statement itself affects the legal rights of the parties . . . .”); United States v. Diaz, 597 F.3d 56, 65 n. 9 (1st Cir. 2010) ("'Verbal acts' include statements whose utterance 'gives rise to legal consequences,' such as the words used by contracting parties in reaching an agreement or by individuals charged with making a threat, bribe or misrepresentation.") (quoting 5 Weinstein's Federal Evidence § 801.11[3], at 801-18-20)).

Conclusion

The Bowles case highlights that statements which are not offered for their truth or which constitute verbal acts do not meet the definition of hearsay. For other comparable cases, consider The Non-Hearsay Of False Statements.

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Photo Description: First Circuit Court of Appeals, John Joseph Moakley United States Courthouse, Boston, Massachusetts. Learn more about the courthouse.

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