Marson v. United States, 11617.

• Decision Date: 17 April 1953
• Docket Number: No. 11617.,11617.
• Parties: MARSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

203 F.2d 904 (1953)

MARSON v. UNITED STATES.

No. 11617.

United States Court of Appeals Sixth Circuit.

April 17, 1953.

William Cohen, Detroit, Mich., on the brief, for appellant.

Philip A. Hart, Joseph C. Murphy and Vincent Fordell, Detroit, Mich., on the brief, for appellee.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

Appellant was indicted with two others and convicted of passing counterfeit money, and of conspiring to commit an offense against the United States. He appeals, claiming that there was insufficient evidence to sustain his conviction; that the court erred in admitting certain evidence and in refusing to grant appellant's requests to charge the jury; and that the court committed reversible error in the manner in which it conducted the questioning of jurors on their voir dire examination, as well as in failing to interrogate jurors as to their knowledge of a prejudicial newspaper account concerning the trial while it was in progress.

Appellant, on August 6, 1949, attended a so-called Mardi Gras festival at Marine City, a small town in Michigan, with two men who were also indicted. At a place known as Smitty's Grill, appellant paid for a round of drinks with a $10 bill, which was counterfeit. It appears that in making such payment, appellant held out a wad of bills to the bartender, who took the $10 bill and returned change. The evidence further disclosed that the two other men passed counterfeit $20 bills at the same place, and that appellant accompanied them to other bars and stores where the two codefendants passed additional counterfeit $20 bills. Two counterfeit $10 bills were passed also at these other places, although it was not proved who had passed them. At the time of his arrest, upon being questioned, appellant denied he had passed the counterfeit $10 bill at Smitty's Grill, claiming that he had handed the bartender a genuine $50 bill instead. He also denied that he had been accompanied at Marine City by his codefendant, Meltzer, who had been identified by several people as being in the company of appellant, and as having passed several of the counterfeit $20 bills. Appellant later admitted he had been with Meltzer and explained that he had, at the time of his arrest, told a false story concerning this association, in order to protect Meltzer in some domestic complications which he was having with his wife.

It is true that the naked act of possessing and passing counterfeit money does not give rise to a legitimate inference of guilty knowledge. Price v. United States, 4 Cir., 70 F.2d 467. Knowledge or belief of the counterfeit character of the money is an essential element of the crime of passing counterfeit money; Zottarelli v. United States, 6 Cir., 20 F.2d 795; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; and the evidence of such knowledge has to be proved beyond a reasonable doubt; Gallagher v. United States, 1 Cir., 144 F. 87. In this case, however, there is evidence of more than mere possession and the passing of the counterfeit money on the part of appellant and his association with others who possessed and passed such money. The circumstances surrounding the conduct of appellant on the day in question are pertinent. He, with his two codefendants, attended this annual affair known as the Mardi Gras at Marine City, where local clubs and organizations conducted various concessions, games of chance, a gambling hall, wheels of fortune, and similar concessions. The celebration attracted a large number of people. From 20,000 to 30,000 men, women, and children attended this affair in a town, the normal population of which was 5,000. It was, as the government observes, a most favorable occasion to engage in the passing of counterfeit money without the apprehension of detection. Appellant's statement that he had paid for the first round of drinks at Smitty's Grill with a genuine $50 bill was contradicted by testimony that he had paid with a counterfeit $10 bill; and the credibility of the conflicting testimony was for the jury. Appellant's denial at the time of his arrest that he was present in Marine City with his codefendant, Meltzer, could be considered by the jury as an attempt to conceal his association and relations during that entire day with the man who was identified as having passed several counterfeit $20 bills at a number of different places. With this background of circumstances, the fact that appellant passed a counterfeit bill in the company of two other men who passed counterfeit bills at the same place, and the fact that he was seen at numerous other places in company with his codefendants who were identified as having passed other counterfeit bills at such places could be taken into consideration by the jury in arriving at a conclusion whether appellant had passed the counterfeit bill with guilty knowledge; and the circumstances above related and the testimony of government witnesses constituted sufficient evidence upon which a verdict of guilt could be sustained.

We are also of the view that there was sufficient evidence to sustain appellant's conviction on the conspiracy count. As has been said, he passed a counterfeit note while he was with his codefendants who, in the same place, passed several other counterfeit notes; and appellant continued his association with the other men who kept on passing counterfeit notes in one place after another during the remainder of the day. This evidence of concert of action, together with appellant's denial that he had passed the counterfeit $10 bill, and his further denial that he had associated with one of the codefendants during the day in question, permitted the jury to draw inferences of an unlawful plan or agreement in furtherance of a common design, and constituted evidence of the conspiracy charge. See United States v. Nelson, 7 Cir., 185 F.2d 758; United States v. Holt, 7 Cir., 108 F.2d 365. With respect to the admission in evidence of a statement of one of appellant's codefendants, such statement was properly admitted against the codefendant and explicitly limited by the district court in its admonition to the jury that it was not in any way to be considered evidence against appellant. Nor was it error to admit into evidence the two counterfeit $10 bills which were passed at certain of the concessions, although there was no proof as to who passed them; for it was clearly competent for the government to negative innocent intent by proof of repetitions of instances, including anonymous instances, of the occurrence of similar things in similar places. It is the repetition of the instances that tends to negative innocence of intent and the probability of coincidence. Carrullo v. United States, 8 Cir., 184 F.2d 743.

We come, then, to what appears to us to be the crucial questions in this case. The district court conducted the voir dire examination of the jurors under the provisions of Rule 24(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Counsel for appellant had prepared a list of questions to be asked the jurors by the court as to whether they had any information with respect to any of the defendants and whether they had formed any opinions as to them.¹ The particular questions requested evidenced careful preparation on the part of counsel. Before the jurors were called for the voir dire, the district court referred to this list of questions in the course of discussing the pertinence of certain of them. The following colloquy then took place:

"Mr. Fitzpatrick (Counsel for Appellant): Twenty-eight through thirty-three. I again urge, your Honor, that you ask each individual juror have they read about it, or heard about it from their friends or over the air. Have they heard these names or formed any opinions. That is the tenor of those questions, your Honor.

"The Court: Well, if you think they are important to you I will ask the question of each individual juror.

"Mr. Fitzpatrick: I submit they are most important, your Honor, in view of the factual situation with reference to at least two of these defendants who have been, or are on trial in other places. So then your Honor will ask twenty-eight through?

"The Court: I will repeat the names of the defendants and ask them if they have heard about their alleged law violation activities.

"Mr. Fitzpatrick: Now, your Honor, that is not in those questions. I would ask, your Honor, in making the request to follow the language of the questions, and not to ask the jury if they have heard of any illegal activities on the defendants\' part.

"The Court: I said I would dramatize that a little bit so that you might have a little more time to think about it. * * * I might dramatize it a little bit more. I might say this case has been discussed in the newspapers, and in that connection not only with the Federal Court for the Eastern District of Michigan, but also the Recorder\'s Court, and you have a great opportunity to get some ideas about these defendants from reading the newspapers, if you haven\'t already read the newspapers."

Counsel for appellant immediately protested that this would be most prejudicial to his client, and in reply, the court said: "All right, I won't make that preliminary statement." Thereupon, the jury was called and returned to the jury box, and the following proceedings took place:

"The Court: I have asked you all collectively whether you had ever read or heard the names of Thomas Marson, Harry Meltzer, Witold Curlanis in connection with criminal activities.

"I will now repeat to you, Mrs. Mann, have you ever read anything in the newspapers about the alleged criminal activities of any of the named defendants?"

The juror so questioned replied that she had not, and had not heard their names on the radio or heard anything about them. The court then proceeded to question another juror who stated that if there had been anything in the papers about the defendants, he may have read it, but he didn't...