Before CLARK, WATERMAN and MOORE, Circuit Judges.
Appellant was charged in a seven-count indictment with having passed on April 11 and 12, 1961, with intent to defraud, over 25,000 counterfeit U.S. Treasury bearer coupons purporting to be coupons from certain U.S. Treasury notes.*fn1 Two others were jointly indicted with him, one Gersh who presented the counterfeit coupons to a bank which paid some $192,000 therefor, and one Blaustein, an employee of the defrauded bank. Prior to trial Gersh pladed guilty to three of the seven counts, 3, 4 and 7, with an understanding that the remaining four would not be pressed as to him. During trial Blaustein changed his not guilty plea and pleaded guilty to three of the seven counts, counts 3, 5 and 6, with a similar understanding. Mentesana stood trial and after the court had dismissed counts 5 and 6 a jury found him guilty on the five remaining counts, 1, 2, 3, 4 and 7. From the judgment of conviction upon this verdict Mentesana appeals on two grounds, first that the evidence presented at trial was insufficient to warrant conviction, and second that the jury was confused because the court first charged:
"Now, * * * I read Counts 1, 2, 3 and 4, and 7, and I am going to instruct you that in order to convict the defendant under any one or more of those Counts, it is not necessary for the Government to prove that Mr. Mentesana had knowledge that the coupons passed at the Meadowbrook National Bank were actually counterfeit."
"In the first place, I want to correct an error I made. I charged you that in order to convict the defendant on the Counts 1, 2, 3, 4 and 7, it is not necessary for the Government to prove that the defendant had knowledge that the coupons passed at the Meadowbrook National Bank were counterfeit. That is true with respect to Counts 3, 4 and 7, but it is not true with respect to Counts 1 and 2, because the Government has to establish that Mr. Mentesana knew that they were counterfeit at the time of the passing of the particular coupons."
Gersh testified for the Government. He testified that he received the counterfeit coupons from Mentesana and that after money had been obtained for them from the bank he and Mentesana had repaired to the apartment of Mentesana's daughter and had divided the money according to pre-arranged percentages. His testimony on direct examination was convincing and was meticulous in detail. It was unshaken on crossexamination.
Though Mentesana took the stand in his own defense his daughter did not testify. One De Santis also testified for the Government. His testimony was that a few months prior to April 11, 1961, upon being approached by appellant, he had purchased from him ten thousand dollars' worth of counterfeit twentydollar bills for fifteen hundred dollars. Two U.S. Secret Service men testified to having purchased counterfeit twenty-dollars bills from De Santis, and, without objection, bills so purchased were put in evidence.
The court painstakingly charged the jury that the testimony of Gersh, being the testimony of an admitted accomplice, should be scrutinized very carefully; and that the testimony of De Santis, if believed, did not show that appellant had committed the crimes for which he was then standing trial but that the De Santis testimony was only offered for the purpose of showing that there could be a likelihood that Mentesana had an intent to pass counterfeit Treasury coupons because he had dealt with counterfeit money.
Under all the circumstances we hold that the submission to the jury of the question of appellant's guilt was not erroneous. Nor was the case improperly or confusedly submitted. The court's explanation of the change he was making in his charge was a most lucid one and was the first statement made to the jury upon its return to the box after a recess prefaced by the following:
"The Court: * * * Now, ladies and gentlemen, I have a few final instructions to give you.
"I am going to excuse you for a few moments so I can confer with counsel.
"I will call you back for a final instruction in about five ...