Roberts v. United States

• Decision Date: 09 October 1969
• Docket Number: 25755.,No. 25708,25708
• Parties: Carl ROBERTS and Barbara Bookout, Appellants, v. UNITED STATES of America, Appellee. John COCCO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 1216 (1969)

Carl ROBERTS and Barbara Bookout, Appellants, v. UNITED STATES of America, Appellee.

John COCCO, Appellant, v. UNITED STATES of America, Appellee.

Nos. 25708, 25755.

United States Court of Appeals Fifth Circuit.

October 9, 1969.

Judith A. Brechner, Miami Beach, Fla., for appellants.

Morton Orbach, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.

SIMPSON, Circuit Judge:

We review on a joint record the appeals of Roberts, Bookout and Cocco from convictions in a joint trial for offenses with respect to counterfeit currency of the United States. We find it convenient to discuss and dispose of both appeals involving the three appellants in a single opinion.

The three appellants, Barbara Bookout, Carl Roberts, and John Cocco, were indicted on three counts: The first count charged the appellants with committing and aiding and abetting on April 4, 1967, the substantive offense of passing, uttering, and publishing a counterfeit twenty dollar bill at the Broward Drug Store. The second count charged a similar offense on the same date by passing two counterfeit twenty dollar bills at the Gulfstream Race Track, in violation of Title 18, U.S.C., Secs. 2 and 472. The third charged the trio with conspiring to pass, utter and publish the counterfeit currency in violation of Title 18, U.S.C., Sec. 371.¹ The appellants were tried to a jury and found guilty on all three counts.²

We recount the evidence viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1941); Ruiz v. United States, 5 Cir. 1967, 374 F.2d 619. The government's star witness was Pat Miller who had previously pleaded guilty to the conspiracy count. It appears clear from a careful review of the record that for the jury to reach guilty verdicts against the three appellants it was necessary for the jury to credit Miller's testimony over that of the appellants. The sequence of events related is based largely on Miller's testimony for this reason.

On the morning of April 4, 1967, appellants John Cocco and Carl Roberts arrived at the Hollywood, Florida house, 6312 Hayes Street, where Capatorto and his common law wife, Barbara Bookout, together with Pat Miller resided. Cocco and Roberts remained in the living room while Capatorto went into Miller's bedroom. There he took $2000 in counterfeit money from a plain white envelope and spread it out on Miller's bed. He and Miller then proceeded to wrinkle the money so that it would look used. While the pair was wrinkling the money, Cocco and an unidentified male entered the room and a discussion as to how to pass the money ensued. It was decided that the men would attempt to pass the money at the Gulfstream Race Track. Before leaving, Capatorto gave Miller ten twenty dollar bills and said he was going to the race track. Capatorto drove off in his car accompanied by Cocco. Roberts and the unidentified male also left in another car.

During the course of most of the activities in the Miller bedroom described above, Barbara Bookout was in the bathroom located across the hall. While the discussion in the bedroom was transpiring, Bookout walked into the room, combed her hair briefly at the dresser mirror and walked out. She said nothing to the participants except to exchange pleasantries.

After the men left, Miller and Bookout went into Fort Lauderdale, Florida, to go shopping. The women stopped at the Broward Drug Store where they ate lunch. After finishing the meal Miller told Bookout that she was going to try to pass the money. Bookout warned that she might get caught. Bookout paid for her meal with legal tender and Miller, ignoring Bookout's warnings unsuccessfully attempted to pass a counterfeit twenty dollar bill in payment for her own lunch. The store clerk recognized the money as counterfeit and summoned the police by telephone. Before the police arrived, Miller gave Bookout the nine remaining counterfeit bills. Miller stated, "I asked her to get rid of it for me. And I told her to leave because I didn't want — I didn't think she should be involved". Miller stated that Bookout left and later returned to inform her that she had burned the money.³ Miller was taken to the police station and Bookout appears to have been arrested later the same day.

In addition to Miller's testimony, the government produced as witnesses two employees of the Gulfstream Race Track located in Hallandale, Florida, who stated that James Capatorto attempted to pass two twenties and was apprehended by them and turned over to state officials. He was later delivered to federal custody. Further the government introduced a plain white envelope which Miss Miller described as similar to the one which contained the counterfeit money when it was spread on the bed in her room. Testimony showed that the envelope was found on top of the toilet tank in the bathroom of the Capatorto home. A fingerprint on the envelope was identified by expert testimony as that of appellant Roberts.

Finally, the government introduced oral statements made by Cocco and Roberts to Secret Service Agent Howell after their arrest and following full Miranda-type warnings. As related by Howell, Roberts made the following incustody statement to him:

"Mr. Roberts stated that when he was there at the house an amount of counterfeit money — $20 bills — had been spread out on a bed and that the other defendants had wrinkled and crinkled this money in an effort to make it appear old. He stated that he himself did not wrinkle any of it. He stated that his purpose for going to the house was to go there to pick up counterfeit money, but when he arrived, he had seen Mr. Capatorto and the two women who he was not known to, and had some reservations about dealing with people that he was not acquainted with well. So that after about five minutes at the house he then departed and then returned later that evening and met with Mr. John Cocco, where he obtained approximately $600 of this same counterfeit money which he had secreted in the home of a friend."

The substance of the Cocco statement as testified to by Agent Howell was:

"He (John Cocco) stated that he had been at a house located at 6312 Hayes Street in Hollywood, Florida, on 4-4-67 at approximately noon time; that while at this house he met with several other individuals and that he observed approximately $2,000 in $20 notes spread out on a bed in the bedroom; that these other individuals were wrinkling and crinkling up the money; that some time later he departed this house in the company of another individual and proceeded to Gulfstream Race Track.

"He stated that while at Gulfstream Race Track he borrowed an undetermined amount of money off of the other individual in the denominations of tens and twenties, and that while at the track he observed the other individual being apprehended; that upon observing this, he fled from the track in an automobile."

Each of the defendants took the stand. Their testimony differed in all respects material to guilt from that related by Miss Miller. James Capatorto was called as a witness by Cocco's attorney and his testimony if believed would absolve the appellants of any wrongdoing.

The essence of this appeal centers around the conspiracy count because it is clear that Bookout and Roberts had no connection with the race track incident. Likewise it is obvious that Roberts and Cocco had no connection with the events which occurred in respect to the Broward Drug Store. However, the jury was properly instructed that if they found that the defendants conspired to pass the counterfeit "it had the right to convict any defendant * * * of the substantive offenses charged in Counts 1 and 2, even though they did not directly participate in the substantive offenses or have knowledge of them, provided you find that the acts referred in the substantive counts were committed in furtherance of the unlawful conspiracy or object of the unlawful conspiracy". Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Gradsky v. United States, 5 Cir. 1967, 376 F.2d 993. Thus the sufficiency of the evidence to prove the conspiracy count must be carefully examined.⁴

I. BARBARA BOOKOUT

From careful study of the 800 page record before us we are convinced that the evidence was insufficient to link Bookout with the conspiracy.

Viewed in the light most favorable to the government, the evidence shows only that Bookout knew of the conspiracy, associated with guilty parties, and destroyed counterfeit money. Bookout's knowledge that there was a plan to pass the counterfeit could reasonably be inferred from two incidents. First, she entered the room while the discussion as to how to pass the bills was occurring. From this the jury was entitled to infer that Bookout had knowledge that there was counterfeit money spread out on the bed and that plans were being made to pass it. Second, Miller testified that Bookout warned her against attempting to pass the bill. This, of course, is further evidence of the fact that Bookout knew of the plan and knew that the money was counterfeit.

Miller's testimony that Bookout destroyed the balance of the counterfeit given to her by Miller no doubt weighed heavily against Bookout with the jury. It seems a reasonable assumption that the jury drew the inference that the destruction of the money demonstrated Bookout's agreement to enter the conspiracy. Essentially then, our task is to determine if this inference was reasonable.

It is elementary that neither association with conspirators nor knowledge of illegal activity constitute proof of participation in a conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The elements of a conspiracy are an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by one...