United States v. Barham, 72-1402.

• Decision Date: 16 October 1972
• Docket Number: No. 72-1402.,72-1402.
• Citation: 466 F.2d 1138
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bradley Sisson BARHAM, also known as Bradley Anderson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.2d 1138 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Bradley Sisson BARHAM, also known as Bradley Anderson, Defendant-Appellant.

No. 72-1402.

United States Court of Appeals, Ninth Circuit.

September 5, 1972.

Rehearing Denied October 16, 1972.

Howard Lonergan (argued), Benhardt E. Schmidt, Portland, Or., for defendant-appellant.

Mallory C. Walker, Asst. U. S. Atty. (argued), Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee.

Before JERTBERG, KOELSCH and TRASK, Circuit Judges.

JERTBERG, Circuit Judge:

Appellant appeals from judgments of conviction pronounced upon him following a jury trial on a three-count indictment charging in Counts One and Two that with intent to defraud he passed and uttered forged and counterfeited obligations of the United States, which he then knew to be forged and counterfeited, in violation of Title 18 U.S.C. Sec. 472; and in Count Three that with intent to defraud he possessed and concealed forged and counterfeited obligations of the United States which he then knew to be forged and counterfeited in violation of Title 18 U.S.C. Sec. 472.

He was sentenced to the custody of the Attorney General for a period of ten years on each count, all sentences to run concurrently.

The only issue presented for review, as stated by appellant, is: "Was there evidence that defendant knew the money was counterfeit?"

The essential facts, stated in a manner most favorable to the Government, may be summarized as follows:

On the morning of June 29, 1971, the appellant purchased a money order at the Commercial Bank in Newberg, Oregon, made payable to Bradley Anderson in the amount of $250.00, in exchange for twelve $20.00 bills and one $10.00 bill. The name signed to the application for money order by appellant was Bradley Anderson. Nine of the $20.00 notes were counterfeit.

After leaving the Commercial Bank, appellant paid a $363.00 truck repair bill, incurred by him under the name of Bradley Anderson, with the $250.00 money order and six counterfeit $20.00 notes. Appellant was given a receipt in the name of Bradley Anderson, in the form of a final work order marked "Paid."

On June 30, 1971, appellant was arrested for passing counterfeit notes. An examination of his wallet, voluntarily handed to a Secret Service Agent, revealed eighteen counterfeit $20.00 notes of the same type that were passed to the bank and to the garage. The counterfeit money was all together in the wallet, together with $162.00 worth of genuine currency, consisting of a $100.00 bill, several $10's, and a $5.00 and two $1's.

Of the thirty-three (33) counterfeit notes, including nine (9) passed at the Commercial Bank, six (6) passed at Bob's Auto Company, and eighteen (18) found in the appellant's wallet, seven (7) contained the identical serial number B 07896834 A; seven (7) contained the identical serial number B 91618342 A; seven (7) contained the identical serial number B 77853003 A; six (6) contained the identical serial number B 41838060 A; four (4) contained the identical serial number B 81011259 A; and two of them contained the identical serial number B 81128913 A.

On July 14, 1971, appellant appeared with his attorney and gave a voluntary statement to the Secret Service Agents. Appellant said that a month prior to his arrest (about May 31, 1971) he picked up a hitchhiker. En route to Portland, Oregon, the hitchhiker asked appellant if he knew where the hitchhiker could obtain some marijuana. Appellant told the hitchhiker he thought he could get some for him, and they reached an agreement on the price while riding to Portland. The hitchhiker got out of appellant's car at a restaurant; the appellant drove away and later returned with four kilos of marijuana. The hitchhiker was waiting. After briefly examining the marijuana, the hitchhiker took out a roll of twenty-dollar bills. He counted out forty-five (45) notes ($900), gave them to appellant, and departed with a shopping bag full of marijuana.

At the trial appellant testified that he obtained the marijuana from a person who owed him approximately $800. He refused to name him. Appellant described the hitchhiker as about five foot nine, one hundred thirty-five pounds, dirty blonde hair, a beard and a wispy moustache, who had an unkempt appearance and appeared to be "one of the street people."

Appellant stated that he knew nothing about the hitchhiker's background or identity.

He stated he was using the alias "Bradley Anderson" because he was living in common-law marriage with his girl friend and did not want her parents to know.

He stated that he purchased the $250 money order instead of paying cash for the repairs at the garage because he had been cautioned about carrying large sums of money on his person, and he bought the money order instead of paying the repair bill with cash, so he would have a receipt.

It is conceded by appellant that he possessed and passed the counterfeit currency charged in the indictment. A jury, under instructions which are not questioned by appellant, returned verdicts of guilt thereby impliedly finding beyond a reasonable doubt, as facts, that, with intent to defraud at the time of such possessing and passing, appellant had knowledge that the currency was counterfeit.

In our review the evidence must be taken in the light most favorable to the jury verdict; that it is the exclusive function of the jury to determine the credibility of witnesses; to resolve evidentiary conflicts, and draw reasonable inferences from proven facts. We must assume that the jury resolved all such matters in a manner which would support the verdict. See United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969).

The jury was not bound to accept appellant's testimony that he did not know that the currency was counterfeit. It was not bound to accept, as true, his account of the circumstances of the acquisition of the counterfeit currency which, to say the least, borders upon incredulity. It was not bound to accept his explanation of the use of the alias. All of such circumstances were reasonably susceptible to the drawing, by the jury, of inferences adverse to appellant's contentions.

"A trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be drawn." United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971).

See also United States v. Randolph, 456 F.2d 689 (9th Cir. 1972).

We are satisfied that the evidence before the jury, with reasonable inferences to be drawn therefrom, was sufficient to justify it in finding beyond a reasonable doubt that appellant, with intent to defraud, knew that the currency possessed and passed by him was counterfeit.

The judgment appealed from is affirmed.

KOELSCH, Circuit Judge (dissenting).

I respectfully dissent. Granted, an appellate court reviewing a conviction must view the evidence in a light most favorable to the government Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); but this record reveals no evidence, substantial or otherwise, tending to prove the conclusion, let alone prove beyond a reasonable doubt, appellant's scienter.

Knowledge can, of course, seldom be proven directly, and in the great majority of counterfeiting cases, the prosecution offers circumstantial proof from which the jury can infer the requisite knowledge. See, e. g., United States v. Bean, 443 F.2d 17, 18-19 (5th Cir. 1971); United States v. Knight, 426 F. 2d 818 (4th Cir. 1970); Ruiz v. United States, 374 F.2d 619 (5th Cir. 1967). "Of course either direct or circumstantial evidence may fail to...