Waterman and Friendly, Circuit Judges, and Zampano, District Judge.*fn*
Appellant Gloria Padgent appeals from a judgment of conviction, rendered after a jury trial. She was found to have passed four five-dollar counterfeit bills in violation of 18 U.S.C. §§ 472 and 2.*fn1 The sole issue she raises on this appeal is whether the trial court committed reversible error by a ruling which curtailed defense counsel's attempted impeachment of appellant's alleged accomplice who testified as a government witness. We hold reversible error was committed and, accordingly, we reverse and remand for a new trial.
The success of the Government's case depended upon a favorable resolution of the factual issue of whether appellant had "guilty knowledge" that she was involved in the passing of counterfeit money. On the basis of the evidence at trial, the jury could have found that on the evening of December 15, 1967, appellant and a friend, Carol Daniels, who was then residing at appellant's apartment, met with another mutual friend, Vernon Seymour, and drove to a bar in Queens called the Hat Box Lounge. While Seymour remained in his car, a Thunderbird, the two women entered the bar and ordered drinks, each paying for her own with a five-dollar bill. Before leaving the bar about fifteen minutes after their arrival, the bartender changed two additional five-dollar bills upon the representation that the women needed the change for use in a poker game. Previous to these last transactions, Officer Burke, an off-duty policeman who was a patron of the Hat Box Lounge while the two women were there, was also asked by Miss Daniels to change a bill, but he could not oblige her.
After the women left, Officer Burke, acting upon suspicion, asked the bartender to let him inspect the fives the two women had passed. He discovered that the serial numbers were identical, concluded that the bills were counterfeit, and informed the bartender. The bartender then went to the door and, observing that the women were entering Seymour's car, closed the bar and drove with Officer Burke in the direction that Seymour's car had taken. A short drive away the pursuers spotted the Thunderbird parked in front of Flash's Lounge. As at the Hat Box, Seymour had remained in the car while the women went into Flash's. The authorities were quickly notified, and appellant, Miss Daniels, and Mr. Seymour were arrested shortly thereafter. Four five-dollar counterfeit bills were passed in Flash's Lounge. The bills passed in the Hat Box and Flash's Lounge, eight in all, were the only counterfeit bills found by the authorities.
Miss Daniels testified that the evening's episode began with a telephone call from Seymour to appellant at appellant's apartment informing her that he was coming over with some counterfeit money. The two women agreed to help him dispose of it and Seymour picked them up and drove them to the Hat Box Lounge. Her testimony was that appellant received the bills from Seymour, hid them in her brassiere, doled a few fives out to Daniels at a time, and each of them passed two of the bills in the Hat Box Lounge and two more in Flash's Lounge.
Appellant took the stand on her own behalf. She testified that Miss Daniels convinced her to go out for the evening, and, as appellant was short of cash, Miss Daniels agreed to pay for everything. Although Miss Daniels had agreed to pay for the evening, appellant called Seymour, a mutual friend of both women, in order to borrow some money. They met Seymour on the way to the Hat Box Lounge where he lent them money. Appellant's testimony was that Miss Daniels paid for the drinks at the Hat Box Lounge, but appellant picked up the four singles, the change for her own drink. They then went to Flash's Lounge where Miss Daniels again paid for the drinks. Appellant denied having any knowledge that any of the money was counterfeit until told that it was by the police and secret service agents after her arrest.
Officer Burke and the bartender testified as to the women's actions in the Hat Box Lounge but there was no testimony other than that of appellant and Miss Daniels as to their activities in Flash's Lounge. Appellant was found guilty on the count charging the passing of counterfeit bills at the Hat Box Lounge and was acquitted on the count relating to Flash's Lounge.
As can be readily seen, there was a direct conflict in the testimony as to appellant's mens rea ; Miss Daniels testified that appellant had full knowledge of what she was doing and intended to do it, while appellant testified that she was an innocent victim of circumstances. As evidenced by the verdict of guilty returned on the first count, the jury must not have completely disbelieved Miss Daniels' testimony. On the other hand, the acquittal on the second count indicates that the jury must have harbored some doubts about the story she told.
Inasmuch as Miss Daniels was appellant's alleged accomplice and had been charged as a codefendant in the indictment, defense counsel naturally inquired on cross-examination into the circumstances which motivated her to testify on behalf of the Government. In response to counsel's questions Miss Daniels revealed that she had pleaded guilty three days prior to the commencement of appellant's trial, but she denied discussing her decision so to plead with her own attorney or with the prosecuting attorney except to notify them that she intended to do so and intended to testify for the Government. She further testified that no comments were made to her about her intentions by any of the attorneys involved in the case. At one point during her cross-examination defense counsel asked:
Q. Miss Daniels, you are still on bail, are you not? A. Yes.
Q. You are on bail in connection with this case? A. Yes.
Q. How much bail are you out on?
A. I was let out on my own ...