Lumbard, Chief Judge, and Anderson, Circuit Judge, and Dooling, District Judge.*fn*
The indictment in seven counts, charged John Dono, Fred Dono, Michael Bonaguro and Frank Digiamo with passing, attempting to sell and fraudulently possessing on July 19, 1968, two hundred and fifty counterfeit twenty dollar Federal Reserve Notes (Counts Two, Three and Four), with passing, attempting to sell and fraudulently possessing another two hundred and fifty counterfeit Federal Reserve Notes on August 2, 1968 (Counts Five, Six and Seven), and with conspiring to possess and conceal, and to pass, utter, publish, and sell counterfeit twenty dollar Federal Reserve Notes. The outline of the offense, as the Government had evidently planned to prove it, was that Michael Bonaguro was a source of the counterfeit bills, that he passed them to John and Fred Dono, that they in turn passed them to or through Frank Digiamo to Emilio and Meliton Cubeiro, and that the Cubeiros passed the bills. Apparently because of the unwillingness of Emilio Cubeiro to testify, little evidence relevant to the July 19, 1968, transaction was available and the court dismissed Counts Two, Three and Four at the close of the Government's case. 294 F. Supp. 750. The case as to the four remaining counts, on which the appealing defendants were both convicted, came principally from the testimony of Meliton Cubeiro and that of the Secret Service agents who, having arrested Meliton Cubeiro on July 31st when he was attempting to pass $1,400 in counterfeit Federal Reserve Notes to a Secret Service agent, induced him to carry through under Government surveillance a further "buy" of counterfeit from his suppliers.
The evidence warranted the jury in drawing the following conclusions about the facts:
Michael Bonaguro was engaged in business as Caton Scrap Metal Corporation, of which he was president, on Staten Island. John and Fred Dono were engaged in the operation of a gasoline station in Brooklyn, and John Dono lived with his family on Staten Island near Frank Digiamo. Frank Digiamo had long known Emilio Cubeiro, and Emilio and Meliton Cubeiro also lived on Staten Island a few blocks from where John Dono and Frank Digiamo lived. Some time before July 29, 1968, Emilio Cubeiro had obtained for $750 from a source apparently not known to Meliton Cubeiro five thousand dollars of counterfeit twenty dollar Federal Reserve Notes, and Emilio and Meliton Cubeiro each took twenty-five hundred dollars of the counterfeit notes. Before July 29th Meliton Cubeiro had disposed of his $2500 in counterfeit notes and had taken over from his brother Emilio a further $1400 of the notes. While he was attempting to sell these last notes to a Secret Service agent on the evening of July 31, 1968, Meliton Cubeiro was arrested, and undertook to "cooperate" with the Secret Service.
Before his arrest, on July 29, 1968, Meliton Cubeiro had met his brother Emilio with Frank Digiamo at his brother's house. Meliton and Emilio Cubeiro had earlier that day talked to one another about getting more counterfeit money, and Meliton raised with Digiamo and Emilio the matter of Digiamo's seeing whether he could get another $5,000 of counterfeit notes for Meliton Cubeiro. But Meliton Cubeiro was arrested on July 31st and he brought about his brother's arrest on the same night. The two were evidently to cooperate with the Secret Service; both were released without bail by the Commissioner the night of their arrest, and they returned home with the understanding that they would attempt to follow through on the purchase of the further $5,000 of counterfeit money under surveillance.
On the next evening, August 1, 1968, Meliton and Emilio Cubeiro met Frank Digiamo at Meliton Cubeiro's house around seven or seven thirty in the evening and talked. Meliton asked about the additional $5,000 of counterfeit money that he had spoken of two days earlier.
The earlier purchase of $5,000 worth of counterfeit had been managed by Emilio, and Meliton Cubeiro did not know from whom Emilio had bought the counterfeit; Meliton now pressed Frank Digiamo to introduce him directly to the supplier. The three men then drove to the house of John Dono in Frank Digiamo's car, and, after waiting about for Dono to appear, finally the three approached Dono in the driveway of his house, and Frank Digiamo introduced Meliton Cubeiro to Dono as Emilio's brother. Meliton asked John Dono about getting $5,000 in counterfeit twenties, and Dono said he would order them for Cubeiro for $750 and would let him know when he could have them. Something was said about a cheaper price later on, and Dono said that he would let Meliton Cubeiro know if he could get them any cheaper on the next buy. Cubeiro told Dono that he already had the $5,000 that he was ordering sold and wanted to buy another $5,000 right after that. No date for such a future delivery was then fixed.
The next morning Meliton Cubeiro ran into Frank Digiamo, and Digiamo told Meliton that John Dono had the money at his house, that he was leaving for work and that Meliton should go there and pick the money up. At that point Meliton returned to his house and telephoned the Secret Service. He waited until a Secret Service man came for him in a car. The two drove in the Agent's car to John Dono's house. The Agent searched Cubeiro and made sure that he had no counterfeit currency on him; Cubeiro was not supplied with any government money to pay for the counterfeit. Cubeiro then went up John Dono's driveway alone to the back door of Dono's house, knocked, was admitted, and was handed an envelope by John Dono which he saw at a glance contained money. Dono suggested that Cubeiro count the money, but he declined to do so. He said that the money was out in his automobile and that he would take the counterfeit and go and get the money. Dono acquiesced, and Cubeiro went out to the car and showed the money to the agent. Other agents were present in other vehicles; they converged on the house, satisfied themselves that the money was indeed counterfeit, and promptly placed Cubeiro and Dono under arrest.
John Dono was taken to 90 Church Street and when he was searched there was found in his wallet a business card of Caton Scrap Metal Corp., Michael Bonaguro, President, with an address in Staten Island and a telephone number. John Dono agreed to make a telephone call to the number indicated on the business card, and the Agents recorded the ensuing conversation while one Agent listened to the conversation on an extension with John Dono's assent. The Agent testified that while he had never heard Michael Bonaguro's voice before either in face to face conversation or over the telephone, he became acquainted with his voice in consequence of arresting Bonaguro later and of hearing him talk at his arraignment and on another occasion. The telephone conversation, as it appears from the record and appellants' brief started with a sufficient exchange to indicate that it was a conversation between someone called Mike and another one called John. Assuming that the two were John Dono and Michael Bonaguro, the conversation went on as follows:
Dono: Did you give that to my
Dono: Yeah. Did he tell you
Bonaguro: Yeah. I couldn't get in
Bonaguro: He wasn't there ...