Cross v. United States, 18828.

• Decision Date: 05 April 1968
• Docket Number: No. 18828.,18828.
• Citation: 392 F.2d 360
• Parties: William Verlon CROSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

392 F.2d 360 (1968)

William Verlon CROSS, Appellant, v. UNITED STATES of America, Appellee.

No. 18828.

United States Court of Appeals Eighth Circuit.

April 5, 1968.

Julius C. Acchione, Little Rock, Ark., for appellant.

William F. Sherman, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. McClellan, U. S. Atty., Little Rock, Ark., on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Appellant William Verlon Cross was charged by indictment, together with an alleged confederate Jerry F. Barrow, of conspiring to possess and pass counterfeit $20 federal reserve notes with intent to defraud in violation of 18 U.S.C. §§ 371 and 472.

The indictment contained five counts, three of which applied to appellant Cross. Count 1 alleged a conspiracy, including Cross and Barrow; Counts 4 and 5 alleged a passing and uttering by Cross and Counts 2 and 3 applied only to Barrow. Cross, upon a jury trial, was acquitted on Count 4 and found guilty on Counts 1 and 5. Judgment was duly entered on the jury verdicts and Cross received a three-year sentence.

Barrow pled guilty to Count 2 of possessing counterfeit notes, and Counts 1 and 3 were dismissed as to him. He received a two-year sentence and was the principal Government witness in the case against Cross.

The multiple indictment charged in Count 1 that on November 29, 1966 Cross and Barrow conspired with each other and other unknown persons to possess and pass counterfeit $20 notes. Count 4 charged that on that same date Cross passed and uttered a counterfeit $20 note at Wink's Club, Paragould, Arkansas, Count 5 charged that Cross on November 27, 1966 passed and uttered a counterfeit $20 note at Hill's Deep Rock Service Station, Paragould, Arkansas.

On appeal Cross's principal contentions are: (1) insufficiency of the evidence to sustain the conspiracy count conviction (Count 1); (2) insufficiency of the evidence to sustain a conviction on Count 5 of passing and uttering a counterfeit note at Hill's Service Station, and (3) denial of his constitutional right to effective counsel in violation of the Sixth Amendment.

On appeal we take that view of the evidence which is most favorable to supporting the jury verdict; and all reasonable inferences that tend to support the action of the jury must be accepted as established. Koolish v. United States, 340 F.2d 513, 519 (8 Cir. 1965), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724; Smith v. United States, 331 F.2d 265, 278 (8 Cir. 1964), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34; Koop v. United States, 296 F.2d 53, 54 (8 Cir. 1961).

The evidence produced by the Government relating to the conspiracy charge consisted primarily of the testimony given by Barrow, an illiterate laborer and lifetime acquaintance of Cross. Barrow met Cross on the morning of November 29, 1966 at Cross's "108 Cafe" in Arbyrd, Missouri, where Cross said that he knew where he could get some "bad money". They agreed that Cross would get the money, and Barrow would help pass it. About 10:00 p. m. that same day, the pair met at the Palmer House (or the Starlight Club which is a similar drinking establishment located in close proximity to the Palmer House) in Senath, Missouri. They drove the short distance to Cross's "108 Cafe" in separate autos, where Barrow parked his car and the pair then drove to Paragould, Arkansas, a distance of about 20 miles, in Cross's 1960 Rambler. Cross said he had a total of $500 in counterfeit $20 notes, twelve of which he gave to Barrow. Cross said the unnamed supplier of the counterfeit notes was to receive 50 per cent and the balance would be split between Cross and Barrow.

The pair proceeded to Wink's Liquor Store and the adjoining Wink's Club, both establishments operated by C. W. Gaskill. Cross told Barrow he was going to "pass one" in Wink's Club. Barrow saw Cross proceed toward the door of the Club, while Barrow went into the Liquor Store. Barrow attempted to "pass" a note to Gaskill, but after the note tore in Gaskill's hands the police were called and Barrow was apprehended shortly after 11:00 p. m.

Approximately two minutes after the police arrived at the Liquor Store, Assistant Police Chief Lloyd Hill, who was also responding to the call, observed a 1960 Rambler with a Missouri license leave the vicinity of the Club and Liquor Store. Barrow was searched and the counterfeit notes he had were confiscated. After the incident with Barrow, Gaskill went into his Club and examined the contents of the cash register where he found a $20 note bearing the same serial number as the one taken from Barrow. The $20 note found in the Club was the subject matter of Count 4, on which Cross was acquitted. The following day Barrow's auto was found parked at the "108 Cafe" by W. H. McClarin of the United States Secret Service, which fact tends to corroborate Barrow's testimony.

Cross argues that while it is true that one person can be convicted of conspiracy with persons unknown, the only evidence establishing such a conspiracy was given by Barrow, which evidence was not sufficient to even convict Barrow of conspiracy. Cross also asserts that the only overt act that could establish the alleged conspiracy was the passing and uttering of the counterfeit $20 note in Wink's Club on which charge the jury acquitted Cross.

The arguments are not persuasive. For conviction under 18 U.S.C. § 371, there must be proof of (1) an agreement; (2) a combination of two or more persons; (3) an unlawful purpose; (4) an overt act committed by one of the conspirators in furtherance of the conspiracy. The requisite elements are present in this case. If the indictment names persons unknown as co-conspirators, and there is evidence to support the charge that one of the two defendants conspired with the unknown persons, his conviction can stand, even though the other defendant was acquitted. United States v. Gordon, 242 F.2d 122, 125 (3 Cir. 1957), cert. denied, 354 U.S. 921, 77 S.Ct. 1378, 1 L.Ed.2d 1436; Cf. Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Rosenthal v. United States, 45 F.2d 1000, 1003, 78 A.L.R. 1415 (8 Cir. 1930). Here, Barrow was not acquitted of conspiracy; the conspiracy count was merely dismissed. The jury properly could find that Cross conspired with Barrow or with unknown persons, such as the person who supplied Cross with the counterfeit notes. Cross's supplying the counterfeit notes to Barrow was an overt act in furtherance of the unlawful agreement to pass the notes as was Barrow's actual passing and uttering of the note at Wink's Liquor Store. Also, the mere possession of counterfeit notes, with the requisite intent to defraud, is proscribed by § 472. This Court stated in Bergen v. United States, 145 F.2d 181 (8 Cir. 1944) at pp. 187-188:

"Conviction may rest on proof of the doing of any overt act by any of his co-conspirators for the purpose of effecting the object of the conspiracy, and it is not necessary to conviction that the overt act in itself be one prohibited by law. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L. Ed. 23; Troutman v. United States, 10 Cir., 100 F.2d 628; Kramer v. United States, 245 U.S. 478, 38 S.Ct. 168, 62 L.Ed. 413."

As succinctly stated in United States v. Root, 366 F.2d 377, 383 (9 Cir. 1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784: "Title 18 U.S.C. § 371 does not require `mission accomplished', only `mission attempted'. An overt act by the conspirators in an effort to accomplish the mission satisfies the requirement of the statute."

The thrust of Cross's argument goes to the weight of Barrow's testimony, which formed the basis of the Government's case. Chief Hill's testimony that he saw an auto similar to Cross's with a Missouri license plate leave Wink's and the coincidence of the identity of numbers on the notes found on Barrow and the note found in Wink's Club, tend to corroborate the testimony given by Barrow. However, it is not required under the federal rule that the testimony of an accomplice be corroborated, if such testimony is not otherwise incredible or insubstantial on its face. Wood v. United States, 361 F. 2d 802, 804 (8 Cir. 1966), cert. denied, 385 U.S. 978, 87 S.Ct. 520, 17 L.Ed.2d 439; United States v. Kelly, 349 F.2d 720, 767 (2 Cir. 1965) and cases cited, cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544. Further, Judge Young cautioned the jury that Barrow's testimony

"* * * be received with caution and weighed with great care.

"You should never convict a defendant upon the unsupported testimony of an accomplice, unless you believe the unsupported testimony beyond a reasonable doubt."

The evidence produced by the Government adequately supports Cross's conviction on Count 1, conspiracy.

The general sentence imposed on Counts 1 and 5 was less than that which could have been imposed on either count,¹ and ordinarily we would not consider Count 5, having sustained Count 1. Lawn v. United States, 355 U.S. 339, 359, 362, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Atkinson v. United States, 344 F.2d 97, 98 (8 Cir. 1965), cert. denied 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106; White v. United States, 330 F.2d 811, 812 (8 Cir. 1964), cert. denied 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58; Isaacs v. United States, 301 F.2d 706, 733 (8 Cir. 1962), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58.

However, in view of Cross's further contention that he was denied effective assistance of counsel, we will consider Count 5, under which Cross was convicted of passing and uttering a counterfeit $20 federal reserve note at Hill's Deep Rock Service Station on November 27, 1966. Cross claims the evidence is insufficient to sustain conviction because the counterfeit note on which the charge is based should not have been admitted into evidence. Barrow testified that he and Cross stopped at Hill's Service Station on Sunday evening, November 27, 1966,...