United States v. Mucherino

• Decision Date: 07 December 1962
• Docket Number: No. 8591.,8591.
• Citation: 311 F.2d 172
• Parties: UNITED STATES of America, Appellee, v. Carl Eugene MUCHERINO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

311 F.2d 172 (1962)

UNITED STATES of America, Appellee, v. Carl Eugene MUCHERINO, Appellant.

No. 8591.

United States Court of Appeals Fourth Circuit.

Argued September 26, 1962.

Decided December 7, 1962.

Michael A. Querques, Newark, N. J., for appellant.

Daniel W. Moylan and J. Hardin Marion, III, Asst. U. S. Attys. (Joseph D. Tydings, U. S. Atty., on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and JOHN PAUL, District Judge.

JOHN PAUL, District Judge.

This is a companion case to United States v. Wenzel, 4 Cir., 311 F.2d 164, in that the appellant here was convicted along with Wenzel in the District Court on an indictment charging them, along with others, with conspiracy to violate the laws relating to counterfeit money (18 U.S.C. §§ 472, 473). The indictment (Count 3) also charged appellant with the substantive offense of selling, exchanging, receiving and delivering the counterfeited notes. He was one of the three (out of eleven) conspirators who went to trial, and he was convicted on both the conspiracy count and on Count 3.

The appellant's first assignment of error is broken into two parts: (1) That the proof at the trial established the existence of numerous conspiracies and not the single conspiracy charged in the indictment; and (2) that the evidence at the trial failed to prove that appellant was a party to the conspiracy charged in the first count.

Both of these matters have been dealt with in our opinion in the Wenzel case. We there set out the substance of the evidence by which the conspiracy was proved including that which showed the part played by this appellant. It is true that appellant sought to prove that he was not in Maryland on December 22, 1960, at which time, according to the Government's evidence, he had come to collect payment for the bogus money which he had supplied. But the evidence by which he sought to support his alibi was shown, in substantial part, to be fabricated; and evidently the jury believed no part of it.

In the Wenzel case we also discussed this contention as to multiple conspiracies and nothing needs to be added here, except to quote the following excerpt from the case of Lefco v. United States, (C.C. A.3) 74 F.2d 66, 68, which we cite as a statement of the settled law.

"There is nothing new in this defense of multiple conspiracies and nothing uncertain in the law arising from such a defense. Of course, to sustain a verdict on an indictment charging one particular conspiracy the evidence must establish the conspiracy charged. Evidence that establishes another conspiracy or several other conspiracies will not sustain the verdict. From this statement of law defendants, when in extremity, commonly resort to the contention that, not knowing all the conspirators or not knowing all the others were doing, they are responsible only for what they themselves were doing when caught, and as that usually is only a part of the conspiracy, they say, the part being less than the whole, it is different from the whole and in consequence is not the conspiracy alleged in the indictment and, for lack of proofs, they should be acquitted.

"Common design is the essence of conspiracy. The crime may be committed whether or not the parties comprehend its entire scope, whether they act separately or together, by the same or different means, known or unknown to some of them, but ever leading to the same unlawful result. Allen v. United States (C.C.A. 7) 4 F.2d 688, 691; McDonnell v. United States (C.C.A. 1) 19 F.2d 801; Capriola v. United States (C.C.A. 7) 61 F.2d 5, 9; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L. Ed. 278; Pierce v. United States, 252 U. S. 239, 243, 40 S.Ct. 205, 64 L.Ed. 542. All conspirators need not be acquainted with one another, nor need they have originally conceived or participated in the conception of the conspiracy. Those who come on later and cooperate in the common effort to obtain the unlawful results become parties thereto and assume responsibility for all done before. Van Riper v. United States (C.C.A. 2) 13 F.2d 961; Coates v. United States (C.C. A. 9) 59 F.2d 173. Nor does the mere fact that conspirators individually or in groups perform different tasks to a common end split up a conspiracy into several different conspiracies. United States v. McConnell (D.C.) 285 F. 164; Wilson v. United States (C.C.A. 2) 190 F. 427."

Appellant's next complaint is that the Court limited the re-cross examination of the witness Morris (Sonny) Anglin, Jr.^* Anglin was one of the conspirators who had pleaded guilty and testified for the Government. According to his testimony he, at the urging of Agresti, provided the means for satisfying the demands of Mucherino for payment for the counterfeits when the latter came to Maryland on December 22.

On cross-examination counsel for appellant asked this witness, who admitted to a number of felony convictions, if he had ever received psychiatric treatment in any hospital or while an inmate of any prison. When the witness replied in the negative he was asked if he had ever had a psychiatric examination while in prison. To this the witness replied that it was routine procedure in prisons to give everyone committed to such institutions a psychiatric examination within a day or two after his incarceration; and he stated that he had had several dozen of them. The examination of this witness went no further.

Some days later, after the Government had finished its case and the defense was being presented, counsel for the appellant offered to put in evidence a certified copy of an order entered in the United States District Court for the District of Columbia in April, 1951. A criminal proceeding was then pending in that Court against Anglin and the order recited that upon motion of his counsel it was ordered that Anglin be committed for examination and report as to his mental condition, such examination to be conducted either at Gallinger Hospital or at the Washington Asylum jail. In offering this document counsel stated that it was for the purpose of contradicting the statement of Anglin made when, in his testimony some days before, he was questioned about experiences with psychiatrists.

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