United States v. Johnson

• Decision Date: 11 October 1972
• Docket Number: No. 72-1108 and 72-1109.,72-1108 and 72-1109.
• Parties: UNITED STATES of America, Appellee, v. James Arthur JOHNSON, Defendant, Appellant. UNITED STATES of America, Appellee, v. John P. CAMPBELL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

467 F.2d 804 (1972)

UNITED STATES of America, Appellee, v. James Arthur JOHNSON, Defendant, Appellant.

UNITED STATES of America, Appellee, v. John P. CAMPBELL, Defendant, Appellant.

Nos. 72-1108 and 72-1109.

United States Court of Appeals, First Circuit.

Heard September 8, 1972.

Decided October 11, 1972.

Certiorari Denied January 22, 1973.

Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for James Arthur Johnson, appellant.

Lawrence F. O'Donnell, Boston, Mass., with whom Francis X. Aylward, Boston, Mass., was on brief, for John P. Campbell, appellant.

Henry H. Hammond, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

Certiorari Denied January 22, 1973. See 93 S.Ct. 963.

McENTEE, Circuit Judge.

These are appeals from two convictions entered upon a two count indictment for selling and conspiring to sell counterfeit currency. Count I of the indictment charged appellant Johnson and one McGovern with selling counterfeit Federal Reserve notes in violation of 18 U.S.C. § 473 (1970).¹ Count II charged appellant Campbell with conspiring with Johnson and McGovern to sell counterfeit notes in violation of 18 U.S.C. § 371 (1970). After trial by a jury all three defendants were found guilty as charged. Only Johnson and Campbell appeal.

On Friday, November 13, 1970, Secret Service Special Agent Daniel Marchitello and Edward Callahan, a government informant, drove to a cafe in Charlestown, Massachusetts. They entered the cafe at 12:30 p. m. and found appellant Johnson inside. Within Marchitello's hearing Callahan asked Johnson, "Have you got the stuff?" Johnson replied, "No. I haven't seen the guy but I'll have it for you tomorrow at approximately 12:30 p. m." Shortly thereafter Marchitello and Callahan left the cafe.

The next day Marchitello and Callahan returned to the cafe at approximately 12:30 p. m. Johnson, who was there, engaged Callahan in a brief private conversation. When Callahan walked back to Marchitello, he gave him three counterfeit $10 Federal Reserve notes which he said Johnson had just given him. Marchitello then left the cafe and returned to the car. A few minutes later Callahan and Campbell emerged from the cafe and approached Marchitello. Campbell told Marchitello that these counterfeit notes were very "hot" in Boston because they were being dipped in coffee to give them a used appearance and because merchants were detecting them as counterfeit because of the coffee smell. Campbell suggested that Marchitello use cigarette ashes and starch to age the bills. He said that the price would be $20 per hundred and promised a lower price if Marchitello purchased in large quantities. He then asked the agent how many notes he wished to buy. Marchitello told him that he wanted to purchase $2,000 in counterfeit bills and Campbell promised to have the consignment ready at 3 o'clock that afternoon.

At approximately 3:05 p. m. Marchitello and Callahan returned to the cafe. They went in and sat down at the bar. Johnson and McGovern were present. After a brief conversation between Callahan, Johnson, and McGovern the latter approached Marchitello. He told him that the price would be $175 per thousand and asked Marchitello how much money he wanted to purchase. Marchitello said he wanted $2,000 in counterfeit currency and indicated that in the future he would place orders by calling the cafe and using the words "dresses or sweaters" to mean counterfeit money. McGovern agreed that the use of a code word was a good idea and said that he could be contacted by calling the cafe and asking for either himself or "Barney" (referring to Johnson). McGovern then walked over to Johnson and returned with a small brown paper bag. He told Marchitello that the bag contained $3,000 in counterfeit currency and again asked him how much currency he wanted. Marchitello told him $2,000. McGovern then removed one package of bills from the bag and handed the bag to Marchitello, whereupon the latter left the cafe and counted the bills. He discovered a shortage of $20, returned to the cafe, and told McGovern of this shortage. McGovern walked over to Johnson and returned with two more counterfeit $10 notes. Marchitello then paid McGovern $350.

McGovern promised Marchitello a lower price in future transactions if he bought in larger quantities, and offered specially printed serial numbers if the agent bought $100,000 worth. Marchitello gave McGovern an undercover phone number at the New York Secret Service office where he could be reached and left the cafe.

Thereafter on approximately six other occasions from December 1970 through March 1971 Marchitello called the Charlestown cafe. On each occasion he spoke to "Barney" (Johnson), and asked him whether any "sweaters" were available. Johnson said no "sweaters" were available and on one occasion stated that he had Marchitello's phone number and would call if any turned up.

At the close of the government's case all of the defendants rested and moved for judgment of acquittal on both counts. The court denied these motions and submitted the case to the jury. The defendants were found guilty as charged.

On appeal Johnson urges three grounds on which his convictions should be overturned. He argues first that the trial court erred in admitting into evidence without any limiting instructions hearsay declarations of his codefendants, second that the evidence was insufficient to warrant sending the case to the jury, and third that the trial court erred in instructing the jury with respect to the government's failure to call the informant Callahan as a witness. Campbell attacks his conviction on the latter two grounds raised by Johnson.

Specifically Johnson first argues that the jury may not consider statements made by his codefendant in his absence against him unless there is independent evidence offered which establishes that in fact Johnson was an active participant in the alleged conspiracy. He raises this contention with regard to the admission of Marchitello's conversation with Campbell in the early afternoon of November 14, 1970, and with regard to Marchitello's conversation with McGovern in the cafe later that same afternoon. The record demonstrates that Campbell's remarks were admitted without limiting instructions and that while the court initially gave the limiting instructions with regard to McGovern's conversation, it later reversed itself and told the jury that it might consider this conversation with respect to all of the defendants. For reasons stated below, we find this contention without merit as to both conversations.

Little need be said with regard to the admission of Marchitello's conversation with Campbell without limiting instructions because this evidence could not possibly have been prejudicial to Johnson. The latter was neither mentioned nor referred to in any manner in this conversation, nor did he raise any objection to the admission of this testimony at trial.

The admission of Marchitello's conversation with McGovern without limiting instructions was also proper. The declaration of one co-conspirator is inadmissible against a second alleged co-conspirator who was not present when the declaration was made, absent independent proof that the second co-conspirator is connected with the conspiracy. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Once such independent evidence of participation in the conspiracy has been established, however, the hearsay declaration becomes admissible against the alleged co-conspirator. Gorin v. United States, 313 F.2d 641, 651 (1st Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963). Discretion is vested in the trial court to determine whether sufficient credible independent evidence has been offered to render the hearsay declarations admissible. The independent evidence need not establish the alleged co-conspirator's participation beyond a reasonable doubt. Such statements are admissible if the trial court finds the independent evidence credible and sufficient to support a finding of concerted action. United States v. Ragland, 375 F.2d 471, 477 (2d Cir.), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968).

We find ample independent evidence in the record to support the court's conclusion that Johnson was a participant in the conspiracy and thus to render McGovern's declarations admissible as to Johnson. Johnson promised on November 13, 1970, to have the "stuff" ready the next day about 12:30 p. m. When Marchitello and Callahan returned to the cafe at that time, Callahan delivered three counterfeit $10 notes to Marchitello after a short conversation with Johnson. Also, after the initial transaction on November 14, 1970, Marchitello and Johnson spoke to each other several times by phone and discussed counterfeit money using...