Opinion
No. 448.
July 10, 1933.
Appeal from the District Court of the United States for the Eastern District of New York.
Mary Woods, Carmine Bruno, Libero Santaniello, and Salvatore Gesoalde were convicted of conspiracy to violate 18 USCA §§ 263-267, relating to counterfeiting of United States money, and of having in their possession a false Federal Reserve note plate, with intent to use the plate for counterfeiting, and they appeal.
Affirmed.
The appellants, with five others, viz. Harry Mills, Amato Santaniello, Sam De Santi, John H. Teale, and Dominick Avella, were charged with violating 18 USCA §§ 263, 264, 265, 266, and 267, relating to the counterfeiting of United States money, and were indicted. The indictment contained ten counts. In the first count, conspiracy to violate the above sections was charged. In the second count, the defendants were charged with having in their possession, custody, and control a false plate in the similitude of a plate from which lawful $10 Federal Reserve notes are printed, and that they intended to use the plate to forge and counterfeit $10 Federal Reserve notes. The remaining counts charged the defendants with manufacturing and possessing spurious plates and with manufacturing and possessing counterfeit money.
Mills and Teale pleaded guilty and testified in aid of the prosecution. The indictment was severed as to De Santi, Avella, and Amato Santaniello. The appellants were found guilty on all counts. The sentences on all but the first and second counts were suspended. This appeal is only from the judgment on the verdict on the first and second counts.
The gist of the government's case is laid in the testimony of Harry Mills, who was admittedly expecting to be treated with some consideration in return for his aid to the prosecution, and his version of the facts will be partially summarized. He was a man capable of engraving steel plates from which counterfeit money could be printed. Early in 1931 he began to work on one in an attic in Providence, R.I. After several months, he had a face plate for printing $10 Federal Reserve notes engraved but for the center part of the bill. Near the end of June in that year, he went to Brooklyn, N.Y., where he spent some time wandering about, drinking and sleeping in the subway and in places where liquor was sold. At times he slept in a junked automobile where he hid the counterfeit plate. While in Brooklyn, he happened to meet Sam De Santi on the street. They told each other that they had no money, but Mills told De Santi about the counterfeit plate. They then went together to the automobile, and De Santi took the plate. The next morning the two met and discussed the use of the plate for making counterfeit bills. De Santi promised to provide the necessary money to carry out the plan, and Mills went to work on the plate in De Santi's house. While working there, Mills met appellant Gesoalde who talked with him about the time he would need to finish the plate and gave him a few dollars. At the suggestion of De Santi, Mills agreed to let Gesoalde come into the scheme. Some time later, in July, when he was ready to begin work on the back plate, Mills went to ride with Gesoalde, and then Gesoalde gave him $5 with which to buy a steel plate to engrave for the back plate. The front plate was finished either late in July, 1931, or early in August of that year, and then De Santi and Gesoalde took Mills to the home of the appellant Mary Woods, at 173 Bedford street, Brooklyn, where they arranged with her to provide him with room and board. She told Mills that Gesoalde was to pay her and was to give her $2,000 when the back plate was finished. Mills worked on the back plate in his room in the Woods house until it was finished some time late in the following October. During this time he saw Mrs. Woods every day and frequently saw appellant Carmine Bruno, who also lived there. He discussed with both of them the time he would need to finish the plate. Mills made three other plates. One of these was spoiled, and the other two were for printing seals and serial numbers. After he completed the face plate, Mills gave it to De Santi, and, when the back plate was finished, he put it in a suitcase from which he said Gesoalde took it. Mills was given small amounts of money from week to week while working at the Woods home, and in November Gesoalde gave him $10. The agreement was that the proceeds of the scheme would be divided equally among five people, Mills, De Santi, Gesoalde, Mrs. Woods, and Amato Santaniello. Carmine Bruno was engaged to print the counterfeit money. About two weeks before Christmas, 1931, Mills went back to Providence for a visit, and Mrs. Woods then gave him $50. Early in January, 1932, Mills returned to Mrs. Woods' house and learned that the back plate he had made could not be used. The next day Gesoalde took him to the house of Dominick Avella in Ozone Park, Queensboro, N.Y., where there was a printing press in a room outside the building where Avella lived. Mills tried unsuccessfully to work the press to get a proof of the plate. He told Gesoalde that he would have to get a printer who understood the work, and later Gesoalde told him he had obtained one. Mills again went to Providence, and returned in February, 1932. When he got to the Woods home, he found Mary Woods, De Santi, Gesoalde, and Bruno there cutting the edges of counterfeit $10 bills which had been printed from the plates he had made. Mills looked at these bills and told the others that they were no good and should be burned. To this the others then agreed. After that Mills worked on the face plate and gave it to Gesoalde when he had finished retouching it. Mary Woods promised to pay him $500 for doing this work. She then showed him a $500 bill. While he was retouching the plate, he met the appellant Libero Santaniello, who came to the Woods house with Bruno and was introduced to Mills by Mrs. Woods. It was late at night, and Libero Santaniello went with Bruno into the room where Mills was working on the plate and remained about ten minutes but said nothing to Mills about his work. The next day Libero Santaniello and Bruno came back and sat in the room where Mills was working on the plate. They talked with each other and watched Mills work. Libero sat within a yard of Mills and looked at the plate, but said nothing to Mills about it.
Before this work was finished, Mills wanted his money but Mrs. Woods told him she had spent some of the $500. She gave him $350 and promised to have the $150 for him when the work was finished. When he finished the plate, she told him that she had told Libero to get the $150 and that she would give it to Mills the next morning. Libero did come in the next morning with $150, which he offered to Mrs. Woods and then at her direction gave the money to Mills. While Mills was at work, Libero went into his room twice when he did ask him how he was getting along and was told that the work was going all right. When he had retouched the plate, Mills gave it to Bruno. Part of the time he lived at the home of a man named Manning and had some of his tools there. Mrs. Woods paid him $500 including the money Libero Santaniello obtained for her, and De Santi, Amato Santaniello, and Manning contributed the remainder to make up $900. After spending two weeks in Providence, Mills went to live with another friend of his, named Kildoff, in Brooklyn. Late in July, 1932, he was arrested, and then began to aid the government. He asked Mrs. Woods whether the plates needed re-etching, and was told that she would see Amato Santaniello about it. Amato arranged with Mills to have the plates re-etched at Mrs. Woods' home, and Mills went to work on them there.
On September 16, 1932, while Mills was at work, government agents searched the Woods house; arrested Mrs. Woods; and seized the face plate on which Mills was working and a counterfeit $10 bill which he then surrendered. Mrs. Woods was going out a back door toward a door on the porch when she was arrested. She was carrying a package wrapped in white cloth which she put down in a corner of the porch when the officers appeared and which was found to contain the back plate. While the officers were there, Bruno came to the Woods house.
John H. Teale, who pleaded guilty, testified that he had been a steel and copper plate printer for many years and had worked in the Bureau of Printing and Engraving at Washington. De Santi agreed to pay him 10 per cent. for printing the counterfeit money, and he agreed to do it. He was taken to a place in the country where he met Bruno, and the two tried to print, but after several days experimenting with ink and paper without satisfactory results printed between one thousand and fourteen hundred notes and then dismantled the press.
Gesoalde went to Europe in August, 1932, and returned November 9th. He was arrested at the pier. He testified at the trial that he went abroad on a business trip concerning the sale of used sewing machines, and denied any criminal relations with Mills or the others. Mrs. Woods also testified in denial of her participation in the scheme and to the effect that Mills was in her home in September when the search was made only because he called there on September 10th so drunk that she felt sorry for him and gave him a room.
Harold L. Turk, of Brooklyn, N.Y., for Libero Santaniello.
Phillip F. Seigenfeld, of Brooklyn, N.Y., for Mary Woods, Carmine Bruno and Salvatore Gesoalde.
Howard W. Ameli, U.S. Atty., and Herbert H. Kellogg, Emanuel Bublick, and Murray Kreindler, Asst. U.S. Attys., all of Brooklyn, N.Y., for the United States.
Before MANTON, SWAN, and CHASE, Circuit Judges.
The appellants press us to reverse because they say the testimony of Mills is insufficient to sustain the convictions, and this, not because the testimony of an accomplice, even though uncorroborated, will not serve as a matter of law, or that it lacks in breadth or scope to implicate them, but because, as they say, Mills was so unworthy of belief as shown by his confused and contradictory testimony that no court should allow a jury to believe him. That Mills was a drunkard and had elected to save himself as best he could by testifying for the government is certain. It is also true that in respect to times and places he was not always so clear and consistent that the charge that he was in error in some details can be successfully met. But, even so, his testimony leaves one who reads it morally sure that these appellants were all acting in concert with him and others to manufacture and pass counterfeit money. That being so, McGinniss v. United States (C.C.A.) 256 F. 621, upon which the appellants rest their claim to reversal, can be used only as indicating a comparative test on the question of the credibility of an accomplice. General language applied to one witness cannot always, indeed can rarely, furnish the decisive means for determining whether another witness should be believed. With the law well settled that the testimony of an accomplice need not be corroborated to support a conviction, Caminetti v. United States, 242 U.S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168; United States v. Mule (C.C.A.) 45 F.2d 132, the issue now before us is whether we can and should say that no impartial jury could reasonably have believed Mills. The answer can be found only by reading the record in this case, and from that we can reach no other conclusion than that it was not only reasonable to believe that these appellants were connected with the counterfeiting as Mills testified, but that it would have been a miscarriage of justice had the trial resulted in anything but their conviction.
As to Bruno, moreover, there was corroboration in the testimony of Teale, himself an accomplice to be sure, but his testimony was clear-cut and was unshaken. And as to Mrs. Woods there can be little doubt that she was trying to dispose of the back plate when she was arrested. Yet the conviction of Libero Santaniello and of Gesoalde must stand upon the testimony of Mills alone, aided only by the evidence of officers who saw them frequently visit the Woods house but did not know what they did there.
With the conspiracy thus established, little need be said of the conviction under the second count charging possession of the plate. It was found in the possession of Mrs. Woods, and her possession was that of all. The suggestion that Bruno was only an employee not to be charged with possession in accord with De Gregorio v. United States (C.C.A.) 7 F.2d 295, is without substance, for he was clearly a conspirator.
It is said that it was error to permit Mills to testify that Mrs. Woods told him she would have Libero Santaniello get the $150 which Libero gave Mills the next morning, but that was admissible under the well-known principle that what one conspirator says about the scheme while it is being carried out may be shown against all. Martin v. United States (C.C.A.) 17 F.2d 973; Silkworth v. United States (C.C.A.) 10 F.2d 711.
The charge of the court is attacked, but we find that the court charged carefully and correctly as to conspiracy, pointed out that Mills and Teale claimed to be accomplices, and cautioned the jury concerning their testimony. This is certainly a good practice, though not absolutely essential. Rachmil v. United States (C.C.A.) 288 F. 782. Some requests to charge not made within the time limited by the rule of the Eastern district were refused. This was clearly within the discretion of the court. Kreiner v. United States (C.C.A.) 11 F.2d 722; Fabian v. United States (C.C.A.) 15 F.2d 696.
The court charged that a reasonable doubt was one for which a reason could be assigned. While we do not approve such a definition, it has in this circuit been held not to be erroneous. Perhaps the discussion which has taken place regarding this point and the divergent view courts have taken [see Pettine v. Territory of New Mexico (C.C.A.) 201 F. 489; Ayer v. Territory of New Mexico (C.C.A.) 201 F. 497; Owens v. United States (C.C.A.) 130 F. 279, where it has been held erroneous: and Griggs v. United States (C.C.A.) 158 F. 572, where the contrary conclusion was reached] has been helpful. We need not further consider the matter.
Affirmed.