Lumbard, Chief Judge, Anderson, Circuit Judge, and Dooling, District Judge.*fn*
Anthony Guidice, Anthony Fontana and Joseph Marulli were indicted in ten counts for the sale, possession, and passing of counterfeit money on three occasions, and for conspiracy, in violation of 18 U.S.C. §§ 472 and 2, and 371. At the conclusion of their jury trial in the Eastern District of New York, Judge Judd dismissed the three counts charging passing of the notes. Guidice was convicted on all of the remaining seven counts: three counts of sale of counterfeit notes and three counts of possession of counterfeit notes corresponding to three transactions proved by the government, and one count of conspiracy. He received concurrent sentences of five years' imprisonment on each count. Fontana was convicted on the conspiracy count and one count of sale of counterfeit notes; he received concurrent sentences of one year's imprisonment on each count. Marulli was convicted of one count of possession of counterfeit notes, and was sentenced to imprisonment of one year.*fn1 They appeal on the ground that the trial judge committed errors during trial and in his charge to the jury. We affirm the convictions.
The government's case rested primarily on the testimony of an undercover agent of the Secret Service, Richard Ward, who testified that he purchased counterfeit money from Guidice on three occasions -- June 13, July 1, and July 3, 1968, at or near the Blue-and-White taxi stand, a one-room business operated by Guidice in Port Jefferson, New York.
Ward was introduced to Guidice as "Pete Meyers" by an unidentified informer. After some preliminary conversation Guidice asked Ward if he "knew the story about the notes" and then told him that the price was $40 per $100 of face value for the counterfeit money. Ward also stated that Guidice told him that he had no notes available then, but that Ward could telephone ahead and come and pick them up.
On June 12, Ward called Guidice, but Guidice refused to talk about notes over the telephone. He told Ward to come to the taxi stand, and Ward went there on the following day, June 13. When he arrived, Fontana was "in and around" the taxi stand. Guidice asked Ward how much he wanted to spend, and Ward replied that he had $200 to spend for counterfeit. During the next hour, Guidice left the taxi stand and returned, received several phone calls, and left a second time. Before leaving the second time, Guidice told Ward to soak the notes in coffee to simulate age and thus make them easier to pass. Guidice finally returned in his car -- a Ford station wagon -- and picked up Ward. The two men drove around Port Jefferson, and Guidice gave Ward a brown paper bag containing eight counterfeit tens; he told Ward that the price was $35. Ward paid Guidice and they returned to the taxi stand.
According to Ward, the second sale occurred on July 1, 1968, after Ward had called Guidice on June 27 to arrange a meeting. When Ward arrived about 10 a.m., Fontana and Marulli were both present; they told Ward that Guidice would be back in a few minutes. Marulli then said that Guidice was driving his car, meaning Marulli's gray 1963 Lincoln Continental. Shortly thereafter, Guidice drove up in the gray Lincoln, entered the stand, greeted Ward and the others, and asked how much Ward wanted. Ward told him that he had $160 to spend, and Guidice answered that that would buy $400 worth.
During this conversation, Fontana left the stand and started to drive away in "the car"; the jury could infer that this testimony referred to Marulli's gray Lincoln, since there was no testimony about any other car being present at the stand on that day. As Fontana started to drive away, Guidice ran out of the stand, waved to Fontana to stop, and walked over to the car. At this point, Guidice and Fontana were out of Ward's sight for thirty seconds; at the end of this period Guidice returned to Ward and Marulli in the stand, locking the door after he entered. He carried a brown paper bag, and after sitting down at a table, he removed a stack of ten dollar notes "three or four inches thick" from the bag. Ward, because of his training as an agent of the Secret Service, was able to identify the money as counterfeit. At this time Marulli was standing behind and to the left of where Guidice was seated. Guidice exchanged $400 worth of ten dollar notes from his stack for $160 which Ward gave him. There was a sizable stack of counterfeit notes remaining, since Ward estimated that the original pile of bills contained $4000 to $5000 in counterfeit tens. Guidice handed the remaining stack of counterfeit notes to Marulli, saying "count the rest of these." Marulli began to count the notes on the table. Guidice told Ward to call him if he needed more, Ward replied that he would, and before he left the taxi stand, Ward said, "Save the rest of those. I'll be back in a couple of days for the rest of the counterfeit." Marulli was present in the stand -- a small, one-room building -- during this conversation.
On July 2, 1968, Ward again called the stand. Guidice told him to come out, and on July 3 Ward, carrying genuine currency bearing serial numbers which had been recorded at his Secret Service office, went to the taxi stand around 9:00 a.m. No one was present, but Fontana soon arrived, opened the stand, and said that Guidice would be there in a few minutes. Guidice arrived and asked how much Ward wanted. Ward asked for $400 or $500. Guidice then left Fontana and Ward, who were in the office, but he returned within two minutes, locked the door, and began counting out counterfeit ten dollar notes on the table. Guidice stated, "There's 39 notes. How much would that be?" Fontana said, "$120," and Guidice said "No. They are $40 a hundred." Fontana then said, "Oh. Then they'd be $160." Since that price was still not correct for the odd number of 39 notes, Ward and Guidice agreed that Guidice would owe Ward one counterfeit note.
Upon leaving the taxi stand, Ward gave a prearranged signal and Guidice and Fontana were arrested by other agents of the Secret Service and Suffolk County Police. The lawmen simulated an arrest of Ward as well. The recorded government currency was recovered from Guidice, and the 39 counterfeit notes were found on Ward. Marulli was arrested over a month later.
There was ample evidence to support the convictions of the three appellants.
I. Guidice's Defense of Entrapment
Guidice testified at the trial, admitting that he had furnished Ward with counterfeit money on two or three occasions. However, he claimed that he did so only because he was constantly pressured and solicited to do so by Ward. His sole contention on appeal is that the trial judge erred in two respects in charging the jury on the defense of entrapment.
Judge Judd's charge regarding the circumstances in which entrapment would be fatal to the prosecution was given exactly as requested by defendant Guidice's trial counsel, and no objection was made to its form or content by any of the parties. Thus, the defects, if any, in the charge must rise to the level of "plain errors * * * affecting ...