United States v. Kelley, 10241.

• Decision Date: 24 January 1951
• Docket Number: No. 10241.,10241.
• Citation: 186 F.2d 598
• Parties: UNITED STATES v. KELLEY.
• Court: U.S. Court of Appeals — Seventh Circuit

186 F.2d 598 (1951)

UNITED STATES v. KELLEY.

No. 10241.

United States Court of Appeals Seventh Circuit.

January 3, 1951.

Rehearing Denied January 24, 1951.

T. Ernest Maholm, Indianapolis, Ind., for appellant.

Matthew E. Welsh, U. S. Atty., Maurice W. Graston, Asst. U. S. Atty., and Marshall E. Hanley, Asst. U. S. Atty., all of Indianapolis, Ind., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

This is an appeal from a judgment entered upon a jury verdict convicting the defendant of all of the three counts of an indictment charging him with (1) passing and uttering a certain counterfeit $10 Federal Reserve Note, (2) possessing twenty-nine counterfeit $10 Federal Reserve Notes, and (3) receiving the same thirty counterfeit $10 Federal Reserve Notes, in violation of 18 U.S.C.A. §§ 472 and 473.

The defendant contends that error was committed by the district court in denying the motion for a continuance, to provide for additional time within which to prepare the defense, and further in failing to grant defendant's motion for a judgment of acquittal, because the evidence was insufficient to prove that the counterfeit notes were passed, uttered, possessed, or received by the defendant with the necessary intent on his part to defraud, and with the requisite knowledge on his part that they were counterfeited.

The district court directed the sentence imposed upon Count 1 and upon Count 2 to be served consecutively. Under the circumstances of this case we think the sentence was rather severe, but as the combined sentence on Counts 1 and 2 was within the statutory limit which might have been imposed on either count, there is no error in this respect. United States v. Sorcey, 7 Cir., 151 F.2d 899, 902.

As this is a case where the defendant's guilt has not been overwhelmingly established, Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 79 L.Ed. 1314, and recognizing that the question of the defendant's knowledge and intent is of critical importance, we have carefully read all of the testimony as appeared in the typewritten transcript. However, before considering the case on the merits we turn to the defendant's contention that it was prejudicial error for the court to deny his counsel's motion for a continuance.

Defendant argues that he was deprived of his rights under Amend. VI, U.S. Const., to have counsel assist him in his defense, contending that the right to counsel carries with it the right that counsel have adequate time in which to prepare the defense, citing Powell, et al. v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158.

The facts are that the defendant was arrested in the early morning of October 26, 1949. On that same day, accompanied by his personal attorney, he appeared before the U.S. Commissioner. On November 21, 1949, he posted bond in the sum of $7,000 and was at liberty on bail from that day until the day of trial. The grand jury returned the indictment on March 20, 1950. Four days later defendant was arraigned and when defendant informed the court that his attorney could not be present, the court appointed counsel to appear for him at the arraignment. Defendant entered a plea of not guilty and the trial date was set for May 26, 1950, the court informing the defendant that it would be necessary for him to be ready for trial on that day. On April 28, 1950, the trial judge, on his own motion, reset the trial date for June 20, 1950. On June 15, 1950, defendant's present counsel, who had shortly theretofore been retained, filed a notice of appearance and requested the district court to grant the defendant a short continuance, saying that he knew nothing about the facts and that five days was an insufficient period to prepare the defense properly. The court refused to grant the continuance and the trial commenced on June 20.

Considering the length of time elapsing between the date of arrest and also the date of arraignment and the date of the trial, we do not think defendant's constitutional rights were violated nor that the denial of the requested continuance was an abuse of the court's discretion. United States v. Cook, 7 Cir., 184 F.2d 642; Gaudio v. United States, 4 Cir., 179 F.2d 300. We think that the defendant had a fair trial. Although he did not personally testify, several witnesses appeared in his behalf on the merits of the case, as well as three character witnesses. Defendant's counsel showed skill in his cross-examination of the government witnesses and ably represented the defendant. We hold that the refusal of the request for a continuance was not error.

Defendant insists that the evidence was not sufficient to support the judgment of conviction, especially as to scienter, and points out that the burden was on the government to prove beyond a reasonable doubt that the counterfeit notes were passed or possessed with intent to defraud and with knowledge that they were counterfeited. Defendant relies heavily upon United States v. Litberg, 7 Cir., 175 F.2d 20, a counterfeiting case, where this court reversed the conviction. But in that case we stated, 175 F.2d at page 21 the well established rule, as follows:

"* * * we must keep in mind the oft repeated rule that the weight and credibility to be attached to testimony of the witnesses is a matter for the trier of the facts and that we are required to take that view of the evidence most favorable to the government. * * *

* * * * * *

"* * * we must accept the proof most favorable to the government's theory, even though some of it is of doubtful validity and open to serious dispute. * * *"

The charges in the indictment are based upon certain of the defendant's acts at the Sportland Tavern at Indianapolis, where during the late hours of October 25, 1949, and some short space of time thereafter, he and one Aiken, both apparently men of middle age, visited after a drinking tour of several other Indianapolis taverns. Defendant's truck had been their means of transportation from tavern to tavern. Defendant and Aiken, who had been acquaintances of 20 years standing, met that day at some tavern about 3:30 P.M. After half an hour they went to another tavern where they stayed about an hour. They then went to Aiken's home where Aiken procured $300, to wit, fifteen $20 bills. Aiken loaned defendant an undetermined amount between $35 and $50. After visiting three more taverns they arrived at the Sportland Tavern about 9:30 P.M. Although then somewhat under the influence of liquor, they continued drinking. They also played shuffleboard. In these activities they were joined by several men and women among the twenty-five to thirty patrons present. Defendant and Aiken had two tables placed together. Minnie Vitone, waitress, waited upon them.¹ Lying loose and exposed on the tables used by the defendant and Aiken was about $185 in bills and other currency which Aiken testified belonged to him and represented the balance of his $300, less spendings therefrom and the amount he loaned defendant.

Cecil Witham, who served as bartender at the Sportland Tavern on the night in question, testified that after the defendant and Aiken had arrived, waitress Vitone turned over three $10 bills to him as proceeds of sales of drinks, and that he noted at the time each had the same serial number, occasioning him to conclude that they were counterfeited. He further testified that he showed the three bills to Mike Vitone and William Gibbs, who, testifying in turn, stated that the three bills shown to them by Witham had the same serial number. Mike Vitone, at Witham's request, put in a telephone call for police assistance.

Witham further testified that shortly after Vitone made the telephone call the defendant approached the bar and spoke to him, saying that he (Witham) was going to be "short" because the waitress had mistakenly given him too much change, in the amount of about $5, and offered to pay same; that he informed the defendant that the waitress had given him a $10 bill; that he did not take the money offered by defendant and said nothing further to him on the subject; that the defendant, after stating that he wished to purchase a...