540 F.2d 1152 (1st Cir. 1976), 75-1362, United States v. Russo

Docket Nº:75-1362.
Citation:540 F.2d 1152
Party Name:UNITED STATES of America, Appellee, v. Ralph RUSSO, Appellant.
Case Date:August 23, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1152

540 F.2d 1152 (1st Cir. 1976)

UNITED STATES of America, Appellee,

v.

Ralph RUSSO, Appellant.

No. 75-1362.

United States Court of Appeals, First Circuit

August 23, 1976

Heard May 3, 1976.

Page 1153

George F. Gormley and Judith E. Diamond, Boston, Mass., with whom Harrington & Gormley, Boston, Mass., was on brief, for appellant.

William C. Brown, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., and Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant was convicted by a jury of selling, transferring and delivering 44 counterfeit $100,000 United States Treasury bills, in violation of 18 U.S.C. § 473.

A Secret Service agent testified that, having assumed the name Marino, he was introduced to appellant in August, 1974. The agent testified that over a period of several months he sought counterfeit Treasury bills from appellant, telling him that they were to be used as collateral for a bank loan, the intent being to withdraw them prior to their maturity date so that the fraud would never be discovered. In a series of phone calls between the agent and appellant, a deal seemed close in October, 1974, but failed to materialize. In November, however, appellant contacted the agent, a meeting was arranged, and appellant provided the agent with a sample bill. This being pronounced satisfactory, further calls were made to set up the transfer of the rest. A second agent went to pick those up; he testified to arresting appellant after that transfer took place. Photos of the delivery and arrest were introduced. A number of the October and November telephone calls which had been recorded by the Secret Service agent were played to the jury. Taken at face value, these tapes showed the negotiations for the sale, culminating in an agreement (with a price of nine per cent of face value), as well as considerable knowledge of the field on appellant's part. A government expert testified to the counterfeit nature of the bills.

Appellant took the stand and admitted the substance of the facts related by the agents, including the accuracy of the taped telephone conversations. He presented a defense of lack of intent, claiming that John Ellsworth, who had introduced him to the Secret Service agent (as Marino) in August, had put him up to a scheme to defraud Marino by selling him real $100,000 Treasury bills and pretending they were fakes. Thus, appellant testified, he thought the bills were genuine. Appellant explained the phone conversations and his other statements to Marino as part of Ellsworth's scheme to defraud Marino into thinking the bills were counterfeit. 1 Moreover,

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appellant charged that Ellsworth was a government informant who, by supplying him with the contraband, had made him a conduit in a sale from the government to the government.

The issue of entrapment was presented to the jury under instructions which reflected the teaching of United States v. Jett, 491 F.2d 1078 (1st Cir. 1974), that evidence of inducement can be disbelieved or that the government's burden on predisposition can be satisfied without independent evidence. The jury's finding against appellant on this score was more than justified in light of the ease with which he had managed the transactions, his obvious knowledge of the ins and outs of counterfeiting, the...

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