U.S. v. Noble

Citation754 F.2d 1324
Decision Date22 February 1985
Docket NumberNo. 83-1997,83-1997
Parties17 Fed. R. Evid. Serv. 455 UNITED STATES of America, Plaintiff-Appellee, v. Stuart Steven NOBLE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Carl M. Walsh, Chicago, Ill., for defendant-appellant.

Canella E. Henrichs, Dan K. Webb, U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before BAUER and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge. *

COFFEY, Circuit Judge.

The defendant, Stuart Noble, was convicted of conspiracy to distribute counterfeit Federal Reserve Notes in violation of 18 U.S.C. Sec. 371, distribution of counterfeit money in violation of 18 U.S.C. Sec. 473, and aiding and abetting such distribution in violation of 18 U.S.C. Sec. 2. The defendant now raises numerous grounds for reversal on appeal, including his assertion that two conspiracies were demonstrated at trial rather than the single conspiracy charged in the indictment, and thus he was prejudiced by the admission of evidence concerning the second conspiracy. He also asserts that the use of his prior counterfeiting conviction to impeach his credibility unduly prejudiced the jury. Finally, Noble argues, through newly substituted counsel for this appeal, 1 that he was ineffectively represented at trial and that his original counsel had a conflict of interest which prejudiced his case. The defendant was sentenced to two consecutive six-year terms followed by five years of probation. We affirm.

I.

The evidence discloses that in early 1980, the defendant Noble contacted a Bennett Handelman, a social and business acquaintance 2 and asked Handelman if he would participate in a scheme to manufacture and distribute counterfeit Federal Reserve Notes. Handelman agreed with Noble to act as a partner in the counterfeiting scheme and during the months that followed the two planned the counterfeit operations including frequent telephone communications.

Subsequently, in late 1980 Noble purchased a printing business in Los Angeles, California known as Argold Press. The evidence discloses that during this period of time the defendant was a close acquaintance of one Jack Catain, the owner of Fox Brothers Leasing, an automobile leasing business. At trial, an employee of Argold Press testified that she had observed Catain visiting Argold Press weekly and then later on a monthly basis after it had opened for business. In the late spring of 1981, Noble telephoned Handelman requesting a loan to buy the equipment needed to print the counterfeit money; Handelman complied and advanced approximately $5,500 to Noble. Records of wire transfers of money from Handelman to Noble corroborated this testimony. Handelman recalled at trial that in late May of 1981 Noble again called and told him that he had obtained the necessary equipment and that one of his employees, a Jon Luce, had agreed to help in the manufacture of the counterfeit money. The government also introduced records of numerous phone calls during this time between Argold Press and the Fox Brothers, the business owned by Jack Catain.

In June of 1981, Handelman testified that he traveled to Argold Press in California and remained in southern California for approximately four weeks, frequently staying after working hours with Noble and Luce. It was at this time that Noble repaid Handelman the $5,500 loan. In August of 1981, Noble flew to Chicago and made an initial delivery of $250,000 in counterfeit notes to Bennett Handelman at his residence in Skokie, Illinois. Handelman distributed this counterfeit money to his contacts who passed the bogus money onto the public. After the distribution was completed, Handelman sent approximately $20,000 of genuine currency to Noble via Federal Express as his share in the profits of the distribution. In October of 1981, Handelman asked Noble to send additional money with different serial numbers and a different Federal Reserve Bank inscribed thereon because in his opinion the first package's bills were becoming too well known in the Chicago area. The defendant responded by sending a second package of counterfeit bills with different serial numbers via Federal Express. Shortly thereafter, on October 19, 1981, Bennett Handelman and another individual were arrested while delivering approximately $33,750 in counterfeit money to undercover agents.

In addition to his involvement with Handelman, Noble also was involved in counterfeit activity in the southwestern part of the United States. In late October of 1981, Jack Catain met with another individual, a Raymond Cohen, in a Los Angeles hotel and asked Cohen if he was interested in distributing counterfeit money. Cohen initially declined the offer after observing that the counterfeit notes did not appear to be of good quality; however, after a new printing of counterfeit notes Cohen agreed on December 5, 1981 to participate in the scheme. After Catain told Cohen that he would give him approximately $756,000 in new counterfeit notes Noble, Cohen and another individual went to Catain's office at Fox Brothers where Noble turned over approximately $1.7 million in counterfeit notes, consisting of approximately $1 million in old and $700,000 in new counterfeit bills. Since the new bills had a strong odor Noble instructed Cohen on how to eliminate the smell by drying the bills.

Cohen was arrested on December 11, 1981 in Las Vegas while attempting to distribute the counterfeit money and he immediately agreed to cooperate with the government. That same day he placed a recorded phone call to Catain's residence to arrange a meeting between Catain and an undercover agent the following day. During the meeting with Catain, Cohen wore a body recorder. The transcript of the conversation reveals that Catain referred to the "guy from Chicago" in alluding to an earlier distribution of the counterfeit money and also periodically mentioned a person named "Stuie" (Noble's first name is Stuart). Catain also agreed to meet Cohen's buyer (the undercover agent). During the meeting Catain negotiated a deal for an exchange of $100,000 in genuine currency for $200,000 in counterfeit notes. After the undercover agent stepped away from the conversation, Catain instructed Cohen on how to set up the deal, since he (Catain) wanted no direct involvement in the counterfeit transfer. Catain stated that he would send "Stuie", or some other person who knew how to detect counterfeit, to insure that the buyer's money was genuine. Catain, however, had a change of heart since he was present during the transfer of the counterfeit bills made at a Los Angeles restaurant on December 15, 1981. Catain was arrested immediately thereafter.

Approximately one week later, on December 21, 1981, a Secret Service agent in Chicago had Bennett Handelman's wife place a call to the defendant Noble. 3 During the conversation the Secret Service agent posed as an interested buyer who wanted to continue the operation. During the conversation, the defendant made four or five exculpatory statements and denied any knowledge of Handelman's involvement in the counterfeiting scheme. At trial, Noble's attorney presented the recorded conversation as part of his defense. The government introduced and the district court allowed Noble's prior counterfeiting conviction into evidence to impeach Noble's credibility as to his claimed lack of counterfeiting knowledge under the Federal Rules of Evidence Rules 806 and 609(a)(2).

In April of 1982, Handelman agreed to cooperate with the government and turned over the second package of counterfeit money he had received from Noble. It should be noted that at the trial it was brought out during Handelman's cross-examination that he had offered to testify for Noble for a price, but that Noble refused the offer. Although Handelman was upset with the government over his earlier treatment by government agents, 4 he was evidently more upset with Noble and thus complied with the government's request to testify on their behalf. Handelman's testimony was offered by the government to establish that a conspiracy continued to exist up to and including the time of Handelman's arrest. Cohen's testimony was offered to demonstrate that the same conspiracy was still in existence and continued through Catain's arrest. Finally, the government's expert witness was able to establish that the counterfeit notes in California and in Chicago were the products of a single printing operation from the same negatives or plates.

II.
A. The Conspiracy.

The indictment charged that a single conspiracy existed to distribute counterfeit notes from early 1980 until the date of the indictment. The defendant, on the other hand, contends that the evidence at trial established not one single conspiracy, but rather two separate conspiracies with the "Noble-Handelman" conspiracy ending in October of 1981 when Handelman was arrested and the "Noble-Catain" conspiracy commencing thereafter and ending with the arrest of Catain. Thus, the defendant argues that it was prejudicial error for the court to admit into evidence under the co-conspirator hearsay rule Cohen's testimony regarding Noble's delivery of $1.7 million in counterfeit notes to Cohen and the taped conversation between Cohen and Catain contining references to Noble's later involvement in the counterfeiting operation after Handelman's arrest.

In order to establish the crime of conspiracy, the government must prove that there was an agreement between two or more persons to commit an unlawful act, that the defendant was a party to the agreement, and that an overt act was committed in furtherance of the agreement by one of the co-conspirators. See, e.g., United States v. Madison, 689 F.2d 1300, 1310 (7th Cir.1983), cert. denied, 459 U.S. 1117, 103 S.Ct. 754, 74 L.Ed.2d 971 (1983); United States v. Roman, 728 F.2d 846, 859 (7th Cir....

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