United States v. Christy, 20405.

• Decision Date: 29 June 1971
• Docket Number: No. 20405.,20405.
• Citation: 444 F.2d 448
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Howard CHRISTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.2d 448 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. George Howard CHRISTY, Defendant-Appellant.

No. 20405.

United States Court of Appeals, Sixth Circuit.

June 29, 1971.

James L. Jones, Knoxville, Tenn. (court appointed), on brief for defendant-appellant.

W. Thomas Dillard, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., on brief.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and McALLISTER, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

Appellant, George Howard Christy, together with a codefendant, was charged under a two-count indictment with passing and aiding and abetting the passing of two counterfeit $20 Federal Reserve Notes, in violation of 18 U.S.C. §§ 2 and 472. Upon a jury verdict of guilty as to both counts, appellant was sentenced to two concurrent ten year sentences.

The first count of the indictment charged that appellant passed or aided and abetted the passing of a counterfeit $20 bill at a drive-in ice cream stand in Alcoa, Tennessee. Appellant's codefendant, Grady Winkler, pled guilty to that count, and his testimony showing appellant's participation in the offense, including an arrangement for the division of the proceeds from the pass, was the basis for appellant's conviction under the first count. Except for the District Court's instruction to the jury on the issue of reasonable doubt, discussed below, appellant raises no issues on appeal as to his conviction under that count.

The second count involved the passing of an allegedly counterfeit $20 bill at a Stuckey's Pecan Shop in Bean Station, Tennessee. A conflict in the evidence concerning whether appellant or his codefendant actually passed the bill to the Stuckey's cashier is the basis for the first issue on appeal. Two employees of the Stuckey's shop, the cashier and another clerk, testified that appellant's codefendant, Grady Winkler, actually passed the questioned bill. Winkler, however, testifying as a government witness, insisted that appellant passed the bill to the cashier. In light of the inconsistencies in the government's evidence, and placing particular reliance on the fact that the government's only disinterested witnesses testified that Winkler, not appellant, actually passed the second bill, appellant contends that there was not sufficient credible evidence to submit the issue of his guilt on the second count to the jury and that the District Court erred in denying his motion for judgment of acquittal with respect to that count.

Whatever persuasive effect this argument might have had if the appellant had been charged only with the passing of the second bill, the argument falls in light of the fact that appellant was charged with aiding and abetting as well as with the actual passing. As indicated above, Winkler, appellant's codefendant testified that by prior arrangement the proceeds of each pass were to be divided between the two. Moreover, Winkler further testified that he and the appellant each received a part of the merchandise purchased at the Stuckey's shop with the questioned bill. Such evidence, if believed by the jury, would have been sufficient to sustain a conviction as an aider and abettor since it clearly establishes appellant's participation in the crime as something which he wished to bring about. See Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Bradley, 421 F.2d 924 (6th Cir. 1970). Thus we are in agreement with the government's theory at trial and its contention on appeal that it was immaterial whether appellant or his codefendant actually handed the bill to the Stuckey's cashier.

A more troublesome issue concerning the second count involves the identification and admission into evidence of the $20 bill which was the basis of that count. The bill, which by subsequent testimony of a Secret Service agent was shown to be counterfeit, was first identified at trial by Mr. Clyde West, the proprietor of the Stuckey's shop, on...