Harris v. United States

• Decision Date: 17 November 1960
• Docket Number: No. 8070.,8070.
• Citation: 283 F.2d 923
• Parties: Willie Bernard HARRIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

283 F.2d 923 (1960)

Willie Bernard HARRIS, Appellant, v. UNITED STATES of America, Appellee.

No. 8070.

United States Court of Appeals Fourth Circuit.

Argued September 26, 1960.

Decided November 17, 1960.

Morris Lee Kaplan, Baltimore, Md. (Nathan Stern, Baltimore, Md., Norman S. Bowles, Jr., and Joseph C. Turco, Washington, D. C., on brief), for appellant.

John Gordon Underwood, Asst. U. S. Atty., Baltimore, Md. (Leon H. A. Pierson, U. S. Atty., Baltimore, Md., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

Willie Bernard Harris appeals his conviction on a charge of conspiring in the District of Maryland to pass, utter, publish, sell and transfer counterfeit bills in that District and elsewhere. Perceiving no reversible error, we are of opinion that we must affirm.

In the first count of an eight count indictment, Harris, Nathiel Smith, Lawrence Jack Crouse and Harry Pincus were charged with conspiring with each other and with Leonard Marvin Kanthal (who was named but not indicted) and other persons unknown, from on or about June 30, 1959, and continuing until and including July 7, 1959, in the State and District of Maryland and elsewhere, to pass, utter, publish and sell certain counterfeit $100 Federal Reserve notes and to sell, exchange, transfer and deliver certain counterfeited obligations of the United States, including but not limited to Federal Reserve notes particularly described. Ten overt acts were charged in the indictment as having been committed in furtherance of the conspiracy.

In the fourth count, Harris was charged with transferring and delivering a specified counterfeit $100 Federal Reserve note to Nathiel Smith. Harris was charged in the fifth and sixth counts, respectively, with transfer and delivery of counterfeit notes to Jack Crouse and Harry Pincus. Smith, Crouse and Pincus were separately charged with similar offenses in certain of the other counts. Crouse had been earlier indicted in another case, charged with passing two specified counterfeit bills in Baltimore. The two cases were tried together.

Pincus was not in custody at the time of trial. Smith and Crouse elected a jury trial but Harris elected to be tried by the court without a jury. Smith took the witness stand and was acquitted on all counts. Crouse did not testify and was convicted by the jury of all charges against him.

The court granted Harris' motion for acquittal as to counts five and six at the close of the Government's case but denied such motion as to counts one and four. Harris did not testify and, at the close of the entire case, renewed his motion for acquittal as to the first and fourth counts. The court granted the motion as to the fourth count because of a reasonable doubt as to whether Harris passed the specified counterfeit money to Smith in the District of Maryland. The court found Harris guilty of conspiracy as charged in the first count and sentenced him to imprisonment.

Harris contends (1) that there was no substantial evidence of a conspiracy upon which the court could have based a finding of guilt and that the evidence, at best, disclosed only suspicious circumstances, the inferences to be drawn therefrom supporting nothing more than speculation, guess and conjecture; and (2) that the court erred in admitting the testimony of one John Nofplot as to acts done and statements made by Harris after the date alleged in the indictment as the termination of the conspiracy.

The trial court, in a memorandum opinion, found the following facts:

"In June, 1959, Harris lived in Miami, Florida. Crouse had been working in Miami as a bartender at the Blue Bay Motel. On June 29 Crouse and Miss Virginia Smith in one car, Harris and Mrs. Kay Fine in another car, together with a man identified only as Harry, left Miami for Maryland and New Jersey. On the evening of July 1 the party checked in at the Diplomat Motel in Washington, D. C. Harris registered under a false name, Alfred G. Hamilton, using a Diners\' Club card Hamilton had lost at the Blue Bay Motel a short while before. Later that evening they went to the Crossroads Restaurant in Bladensburg, Md., owned by Nathiel Smith. Smith had known Harris in Miami but did not know Crouse. Kanthal, a former boxer, who had formerly worked for Smith at the Crossroads Restaurant, was also at the restaurant late in the evening of July 1. Smith entertained the group from Miami and a few other friends at a private party after the restaurant closed at 2:00 A.M., and visited Harris at the Diplomat Motel the following day. The party came back to the Crossroads Restaurant for another party the following night.

"On July 3, July 4, and Sunday, July 5, Smith met Kanthal several times. On July 3, 4, and 5, Kanthal passed between 40 and 50 counterfeit bills in Washington, D. C., Chesapeake Beach, Md., Gambrills, Md., Baltimore, Md., and neighboring areas, including the two counterfeit bills specified in the overt acts, which were passed as charged.

"On July 3 Harris added Miss Louise Angel, a night club dancer, to his party; and Harris and Miss Angel, Crouse and Miss Smith, Harry and Mrs. Fine, went to Atlantic City where they visited at Mrs. Fine\'s house in or near Pleasantville, N. J. While there one of the women saw a paper bag containing a large sum of money in Harris\' bedroom, as well as a lot of miscellaneous inexpensive merchandise, some of which Harris gave to Miss Angel.

"On Monday, July 6, Harris and Miss Angel, Crouse and Miss Smith, left New Jersey for Baltimore. Harris had two paper bags containing `money\', the genuineness of which is not testified to by anyone. He put one paper bag in the glove compartment of the car and gave the other paper bag to Miss Angel to carry in her handbag. The same day Crouse and Harris met at the Lord Baltimore Hotel, in Baltimore.

"On July 6 and 7 Crouse passed three specified bills in Baltimore. Besides those passed by Kanthal and the three proven to have been passed by Crouse, the Secret Service has in its possession about a dozen other similar bills passed in the Washington-Baltimore area.

"After July 7 Harris and Crouse returned to Florida. During the last week in July, in Miami, Harris gave John Earl Nofplot, to be passed by Nofplot in the Middle West, 50 counterfeit bills with similar serial numbers to those passed in Maryland. Harris told Nofplot that he had worked with others on a 50-50 basis; that he had recently been on a trip; that the trip had been successful and the `money\' had been accepted by the public."

Under its Conclusions of Law, the court stated:

"* * * I am satisfied beyond a reasonable doubt that in the District of Maryland, during the period between June 30 and July 7, 1959, Harris conspired (1) with Crouse and (2) with Kanthal or with someone who delivered the counterfeit bills to Kanthal after receiving them from Harris, to pass in Maryland the counterfeit bills described in the first count of the indictment in this case * * * and to transfer and deliver such bills. I further find that after Harris formed or joined the conspiracy, several of the overt acts were performed as charged, in furtherance of the conspiracy, including the passing of the two specified bills by Kanthal at Gambrills, Md., and Baltimore, Md., respectively, and the passing of the two specified bills by Crouse at Baltimore, Md."

There was testimony from which the court could have found additional facts, namely, that as a part of the plan to pass the counterfeit bills, purchases of small inexpensive items of merchandise would be made, the counterfeit bills presented in payment therefor and the remainder received in cash; that Kanthal was to receive $20, represented by purchased merchandise and cash, from each $100 counterfeit bill; that on the trip to Atlantic City with Crouse and others, Harris continued to use the assumed name of Alfred G. Hamilton.

In that portion of the memorandum opinion preceding the formal Findings of Fact, the trial court stated that all of the counterfeit notes referred to in the indictment and in the evidence are falsely made and counterfeited $100 Federal Reserve notes on the Federal Reserve Bank of Chicago, all of them bearing the serial numbers beginning with the letter "G" (designating Chicago), having the same first six numbers, 424378, and ending with two numbers between 01A and 49A, e. g., G42437807A, with face plate numbers K21 and L21 and back plate number 110. These recitals are fully supported by the evidence.

It is not the proper function of an appellate court to weigh evidence anew or to determine the credibility of witnesses at the trial. The verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.¹

Presently omitting from consideration the testimony of witness Nofplot hereinafter discussed, the case against Harris was wholly circumstantial since no witness affirmatively and directly testified that Harris was a party to the alleged conspiracy.

However, the law is well settled that a conspiracy charge may be sustained on circumstantial evidence standing alone.² As stated in Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680,

"Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a `development and a collocation of circumstances.\'"

The court in Madsen v. United States, 10 Cir., 1948, 165 F.2d 507, at page 511 said:

"It is rarely that a conspiracy is susceptible of direct proof. Men do not ordinarily reduce such unlawful agreements to writing or make them a matter of record. Ordinarily criminal conspiracies must of necessity be established largely by indirect and circumstantial evidence, and by inferences largely deductible from the acts and conduct of the conspirators."³

In summary review, there was direct evidence of a conspiracy between Smith and...