United States v. Wenzel

• Decision Date: 07 December 1962
• Docket Number: No. 8612.,8612.
• Citation: 311 F.2d 164
• Parties: UNITED STATES of America, Appellee, v. Edward Lester WENZEL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

311 F.2d 164 (1962)

UNITED STATES of America, Appellee, v. Edward Lester WENZEL, Appellant.

No. 8612.

United States Court of Appeals Fourth Circuit.

Argued September 26, 1962.

Decided December 7, 1962.

Charles W. Bell, Rockville, and Herbert W. Jorgensen, Takoma Park, Md., (Edward A. Palamara, Rockville, on brief), for appellant.

Daniel W. Moylan and J. Hardin Marion, III, Asst. U. S. Attys. (Joseph D. Tydings, U. S. Atty., on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and JOHN PAUL, District Judge.

JOHN PAUL, District Judge.

An indictment was returned in the District of Maryland containing five counts in one of which (Count No. 1) eleven persons including the appellant were charged with conspiracy to violate sections 472 and 473 of Title 18 United States Code, which relate to the possession, sale, utterance, etc., of counterfeit money. The remaining counts of the indictment charged various ones of the conspirators with substantive offenses growing out of their conspiratorial activities. Appellant was charged in Count 2 with possessing and in Count 3 with transferring and delivering counterfeit money.

When brought to trial six of the alleged conspirators pleaded guilty; one was a fugitive, and one had been killed prior to the trial. The remaining three, consisting of the appellant, one Carl Mucherino and one Ernest Clifford Anglin, Jr., stood trial. Appellant was found guilty under both the conspiracy and the substantive counts. Mucherino was convicted on the conspiracy count and on Count 3. Anglin was found not guilty.

On this appeal the appellant appears not to question the force of the evidence against him, but charges that the trial court committed error in the following respects:

(1) In not granting appellant's motion for acquittal, or for a new trial, on the ground that the indictment charged a single conspiracy whereas multiple conspiracies were proved.

(2) In admitting in evidence an incomplete confession of appellant.

(3) In refusing to interrogate the jury as to whether they had read newspaper articles relating to the trial.

(4) In refusing to give to appellant's counsel parts of reports made by agents of the U. S. Treasury Department to their superior officers concerning their investigation of the case.

We find no merit in any of these assignments of error. We take them up for discussion in order:

The Conspiracy.

The evidence produced by the Government tended to show that on December 6th or 7th, 1960, about $45,000.00 in counterfeit $20.00 Federal Reserve notes was brought from Newark, N. J., into Maryland by Carl Mucherino or by some one acting for him and at his direction, and that the counterfeits were delivered to a man named Agresti.

On the afternoon of December 7th Agresti met at his home with a group of his associates, including the appellant, E. C. Anglin and Charles Eugene Lockett, at which time the counterfeits were displayed and counted and plans discussed for passing them. Later on the same day a further meeting was held at the apartment of Agresti's girl friend at which there were present the same four persons and also Carl Wenzel, a son of the appellant. At this meeting it was decided that Lockett should be given a portion of the counterfeit notes and, accompanied by Carl Wenzel, should embark on a trip for the purpose of putting them in circulation. When the meeting broke up a package containing some of the counterfeit notes was given to the appellant by Agresti to be held by appellant until Agresti should later pick it up. A day or so later this package was called for by Agresti or by one of his associates.

Lockett and Carl Wenzel left the same night, going first to Pittsburgh; thence to Akron, Ohio, and then on to Cleveland, in all of which communities they passed some of the money. Carl Wenzel left Lockett in Cleveland and returned to Maryland. Lockett remained in Cleveland a short while and while there met one Jerry Powell, who assisted him in passing more of the money in that city. At this time Lockett also talked with Powell about going to Atlanta, Georgia; and a few days thereafter, when Lockett had returned to Maryland, Powell telephoned him and they completed arrangements to meet in Atlanta, which they did a few days later.

After getting rid of some of the spurious notes in Atlanta they went up to Powell's home-town in North Carolina, where they enlisted the aid of Wayne Powell, an uncle of Jerry's. The trio then visited various cites in North and South Carolina, in all of which they uttered some of the counterfeits. During the time they traveled in an automobile in which Lockett had driven to Atlanta and which was owned by Agresti.

On December 18th appellant was present at another meeting at Agresti's home attended by several other of the latter's associates. On leaving this meeting appellant, at Agresti's request, again took a bundle of the counterfeit notes to be held until called for.

On December 22nd Carl Mucherino again appeared in Maryland. The testimony supports the inference that Mucherino had not until then been paid for the counterfeits which he had supplied and that he came down for the purpose of either getting payment or retrieving such of the notes as Agresti still had. Early in the morning of December 22nd William Joyce, another of the conspirators, went to appellant's home to pick up the package that Agresti had entrusted to appellant on the 18th. Joyce told appellant that Agresti had sent him to get the package and that "he was sending the money back." After receiving the package (which contained $30,000.00 of bogus notes) Joyce, following instructions from Agresti, proceeded to a previously designated meeting place where he met Mucherino and delivered the package to him.

On the same morning Agresti had a talk with Morris (Sonny) Anglin in which he induced Anglin to arrange to satisfy the financial demands of Mucherino, in return for which Anglin was to receive the $30,000.00 of counterfeit notes. After Agresti had met Mucherino and the latter had agreed to the proposed arrangement, Agresti, Anglin, Joyce and Mucherino met the same afternoon in Anglin's apartment at which time Mucherino, after having his demands satisfied, turned the package of $30,000.00 over to Anglin. On receiving the counterfeits Anglin called a friend of his, one Roberts, in the city of Washington and later this same afternoon this pair started passing the notes in a large suburban shopping center. In the course of this attempt Anglin and Roberts escaped arrest only by running when a clerk in one of the stores suspected the character of the notes and called the police.

There appears no further passing of any of the counterfeits and the various members of the conspiracy were apprehended and taken in custody in the weeks following. Appellant was arrested on February 1, 1961.

It is difficult to see upon what appellant bases the argument that the evidence disclosed a number of conspiracies rather than the single one set out in the indictment, and neither his brief nor oral argument illuminates this contention. Reference is made to various meetings or activities in each of which some, but not all, of the conspirators participated; and the argument apparently is that each of these represented a separate conspiracy comprising only the individuals present or participating. There is plainly no merit in this. It is fundamental that it is not necessary that every act undertaken in carrying out the object of a conspiracy should be participated in by every member of the conspiring group. In carrying out the purpose of a conspiracy it will be found that in practically every case different groups played different parts. To unite them in a single conspiracy it is only necessary that the activities of each individual or group be directed toward accomplishing a single criminal objective. See Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154; Jezewski v. United States, 6 Cir., 13 F.2d 599, 602; Poliafico v. United States, 6 Cir., 237 F.2d 97, 104-105.

The pattern of this conspiracy was plain and uncomplicated. It had for its object the realization of profit by the foisting upon the public of counterfeit money. To accomplish this the counterfeits had to be obtained and they had to be put in circulation. Mucherino furnished the money to Agresti and the latter, along with appellant and other associates, arranged to put it into circulation by Lockett and the younger Wenzel. It is immaterial that Mucherino or Agresti or the appellant may not have known the persons that Lockett recruited to help him in uttering the money, or that these persons were not among the group which originally planned the illegal enterprise. Poliafico v. United States, supra p. 104; Hagen v. United States, 9 Cir., 268 F. 344, 346; Marino v. United States, 9 Cir., 91 F.2d 691, 696; United States v. Lester, 3 Cir., 282 F.2d 750; Allen v. United States, 7 Cir., 4 F.2d 688, 692; United States v. Babcock, C.C., Fed. Cases No. 14,487; Daily v. United States, 9 Cir., 282 F.2d 818, 820; United States v. Bruno, 2 Cir., 105 F.2d 921; Craig v. United States, 9 Cir., 81 F.2d 816, 822, in which latter case it is said:

"(a)ctors may drop out, and others drop in; the details of operation may change from time to time; the members need not know each other, or the part played by others; a member need not know all the details of the plan or the operations; he must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose."

And in Poliafico v. United States, supra, we find:

"Knowledge of membership in the conspiracy, the part played by each of the members, and the division of spoils is immaterial. * * * The addition of new members to a conspiracy or the withdrawal of old ones from it does not change the status of the other conspirators."

And in Marino v. United States, supra, it is said (91 F.2d p. 696):

"In the

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