Before FRIENDLY and HAYS, Circuit Judges, and ANDERSON, District Judge*fn* .
After a jury trial before Judge Bartels in the Eastern District of New York, appellants Gersh, Mugnola and Yuastella were convicted on a count charging that they knowingly and with intent to defraud kept counterfeit money in their possession in violation of 18 U.S.C. § 472 and on another count charging that they conspired to commit that crime in violation of 18 U.S.C. § 371.
The evidence showed that Gersh, the first of the three to become involved, along with his partner Russo, was approached by Ralph De Santis to procure purchasers for counterfeit bills. Gersh shortly told De Santis he had found a prospective buyer. A meeting was arranged at the boatyard of one Pokras, who, having previously been offered counterfeit for sale by De Santis, secretly advised the authorities of what was afoot. Gersh came to the boatyard with Mugnola and Yuastella and Michael Kane who was also convicted and is now a fugitive.Gersh reported that Mugnola and Yuastella, friends of his friend Kane, wanted to buy counterfeit and that Kane's cut would come out of Gersh's share. Kane announced in the presence of Mugnola, Yuastella, Gersh and De Santis that his friends were "ready to buy the money now," and Yuastella showed De Santis a shoebox purportedly containing $20,000 with which he wanted to do business that night. Not yet having procured the merchandise, De Santis could not comply, but he agreed to pick up Mugnola and Yuastella at the boatyard the next evening and to sell them $100,000 in counterfeit for $16,000 cash. The next morning De Santis instructed Pokras to reserve a room at a motel wherein to consummate the bargain. Pokras reserved two rooms, leaving one key for the Secret Service who hid personnel there. At a bar De Santis then purchased $100,000 in counterfeit for $13,000 on credit and drove off with Pokras to the motel. On seeing what he took to be a police car, he insisted on going to a different motel where he and Pokras counted and examined the counterfeit. There were fifty piles, each containing approximately one hundred twenty-dollar bills. Pokras and De Santis testified that the bills bore the same serial number, that they had a peculiar odor and that they left ink stains on the hands when crumpled. At the appointed hour, the two returned to the boatyard, picked up Mugnola and Yuastella and drove them to the motel. After some preliminary bickering over safeguards and procedure, all four went to the room, where the counterfeit was reposing in a drawer. Matters then took what for De Santis and Pokras was an unexpected turn. Producing revolvers, Mugnola and Yuastella forced them into the bathroom and commanded them to wait there for twenty minutes. When they emerged, Mugnola and Yuastella were gone and so, of course, was the counterfeit. De Santis later complained to Gersh that he would hold him responsible for the contretemps, but such efforts as Gersh and Kane made to find the absconders proved unavailing. The record contains much more, but the foregoing summary is sufficient.
Most of appellants' points require little or no discussion. The claim that Mugnola and Yuastella could not have conspired with De Santis et al. since the former intended to steal and the latter to sell verges on the ludicrous. The statute forbids possession of counterfeit with intent to defraud; the evidence amply warranted the jury in finding that appellants agreed to bring the counterfeit first into De Santis' possession and later into Mugnola's and Yuastella's. There was no less a meeting of the minds on this because, whether initially or later, Mugnola and Yuastella determined to deceive the deceiver. The Government's failure to produce the counterfeit, which admittedly is no bar to the conviction on the conspiracy charge, United States v. Agueci, 310 F.2d 817, 828 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963), is likewise no bar as to the substantive count in the light of the Government's inability to find the counterfeit and the substantial evidence offered in regard to it, United States v. Agueci, supra, 310 F.2d at 828; Lisansky v. United States, 31 F.2d 846, 850, 67 A.L.R. 67 (4 Cir.), cert. denied, 279 U.S. 873, 49 S. Ct. 514, 73 L. Ed. 1008 (1929); McDonald v. United States, 89 F.2d 128, 136-137 (8 Cir.), cert. denied, 301 U.S. 697, 57 S. Ct. 925, 81 L. Ed. 1352 (1937). Complaint is made that, in giving the usual cautionary charge, the judge referred to De Santis as an accomplice; this, it is said, prejudiced appellants by indicating a belief by the judge that De Santis had joined them in wrongdoing. The Government responds that Judge Bartels began this portion of the charge by characterizing De Santis as "a confessed accomplice" which he surely was, and that the jury must have understood the instruction to relate to the testimony of a person who had cast himself in that role. We are clear that the instruction sufficiently met the demands of nicety and could not have been considered by the jury as indicating any prejudgment by the court.
One matter requires more extended discussion. The jury, having deliberated since lunchtime, rendered its verdict at 10:45 P.M. on October 22, 1962, and was excused fifteen minutes later. After various motions had been made and decision on them reserved, the Government asked that the defendants be remanded in custody, which defense counsel naturally opposed. The following colloquy ensued:
"The Court: Well, I will tell you what bothers me here, Mr. Lewis, and I want all the defendants to hear that because I don't know just who is responsible, and that is this:
"Someone has made some phone calls, anonymous phone calls, to the witness Pokras; and someone has made some anonymous phone calls to the forelady of this jury - she reported them to me this morning - all yesterday without waiting for anyone to pick up the receiver and simply stopping as soon as the receiver was picked up, but then renewing the call every hour, beginning also this morning at 6:30.
"She had never received such calls before until she served on this jury, and of course there have been some phone calls to Pokras.
"Now, you know, Mr. Lewis, I would not stand for anything like that.If I ever found out who is responsible for that sort of thing, you know what I would do, don't you?
"Mr. Lewis: You would be entirely justified.
"The Court: But, of course, we have no one to pinpoint and consequently I have to be fair and openminded about it.
"Mr. Lewis: I can't conceive -
"The Court: But to whom it may concern, and I shall just issue a warning, that if I discover that anyone involved in this case is responsible directly or indirectly for such phone calls, I assure you that I would not ...