Appeal from judgment of the Eastern District, Judd, J., entered after trial where defendants were found guilty of various counterfeiting offenses, asserting that trial judge made improper remarks to jury, that evidence obtained during searches was improperly admitted, and that evidence was insufficient to establish conspiracy charged.
Lumbard, Hays, and Mulligan, Circuit Judges. Mulligan, Circuit Judge (concurring).
Anthony La Vecchia, Edward Bogan, Herbert Kurshenoff, and Nicholas Andriotis appeal from their conviction by an Eastern District jury of various counterfeiting offenses. See 18 U.S.C. §§ 371, 472, 473.*fn1 La Vecchia and Bogan claim that several remarks of the trial judge were so unfair and unsupported by the evidence as to require reversal of their convictions and that the single conspiracy alleged in the indictment was not proven. In addition, La Vecchia asserts that some evidence was improperly introduced at trial because it was obtained by an illegal search of his automobile, while Bogan asserts that the affidavit in support of the issuance of the warrant authorizing the search of his business premises was legally insufficient and contained a materially false statement. Kurshenoff and Andriotis both claim that the proof was insufficient to establish their membership in a conspiracy to distribute counterfeit money. We affirm.
The heart of the government's case consisted of testimony by two former counterfeit distributors, John McMillan and Dominic Russo, who had been caught selling counterfeit money by government agents. McMillan testified that in June 1971 he bought $300,000 in counterfeit $10 Federal Reserve notes on consignment from La Vecchia for nine points (nine cents on the dollar), and that he sold all of the counterfeit to Russo and six other individuals at various times for various prices. Russo testified that he bought a total of $20,000 in counterfeit from McMillan and that he sold it to other persons, several of whom were later arrested for passing the counterfeit money.
In June 1972 McMillan and Russo discussed obtaining further counterfeit and thereafter McMillan contacted La Vecchia and bought $25,000 in counterfeit $10 Federal Reserve notes. He delivered these to Russo who testified he sold $5000 to Kurshenoff and about $15,000 to one Phil Martino. The remaining notes were not good enough to attempt to sell. McMillan testified that shortly thereafter he bought a second $25,000 package from La Vecchia. This time when he went to La Vecchia's house to pick up the money, he had to wait until someone brought the counterfeit to La Vecchia. McMillan gave the money to Russo and Russo testified that he then sold another $5000 package to Kurshenoff*fn2 and another $15,000 or so to Martino.
About the beginning of August, McMillan bought $100,000 from La Vecchia and delivered it to Russo, who sold $10,000 to Martino. In addition, Russo attempted to negotiate a sale of counterfeit to Andriotis. They were unable to agree on a sales price, and McMillan took charge of the negotiations and reached a satisfactory agreement with Andriotis for the sale of a $10,000 package. Russo testified that Andriotis told him to drive down 44th Street and give the package to "Paul" when he stops you and asks if you have a package for me. Russo followed these directions and made the delivery. Andriotis paid Russo $1400 for the package. Thereafter Martino was arrested when he sold counterfeit to a Secret Service agent. Martino arranged a meeting between Russo and the agent and Russo sold a $5000 package to the government agent, after which Russo was arrested. He implicated McMillan as his source and McMillan was arrested in January of 1973.
At this point the government arranged an elaborate scheme in an attempt to catch La Vecchia red-handed. On February 13, 1973, McMillan contacted La Vecchia and said he wanted to buy a $25,000 package and take delivery on February 15.*fn3 On the 15th, McMillan met with La Vecchia at Beacon Discount Sales, 125 East 18th Street, to consummate the transaction. McMillan was to pay La Vecchia $2500 and in turn receive a key to a Penn Station locker where the counterfeit would be placed. After finalizing these arrangements La Vecchia left 125 East 18th in his car and shortly thereafter government agents observed him entering 270 Lafayette Street, where Bogan's printing shop was located.*fn4 La Vecchia left shortly after entering the building. Meanwhile, Bogan arrived at 125 East 18th shortly after La Vecchia had left. He received a telephone call and left. He was followed by agents*fn5 who observed him meet with La Vecchia in the latter's car. La Vecchia then drove to 125 East 18th, picked up McMillan, and gave McMillan the locker key in return for $2500 in genuine currency, the serial numbers of which had been recorded by government agents. Thereafter, the $25,000 package of counterfeit was found in the Penn Station locker. At this point La Vecchia and Bogan were arrested.
At the time of his arrest, $50 of the prerecorded purchase money was found on La Vecchia's person, and the remaining $2450 was found in the trunk of his car. Subsequent to the arrests, a warrant search of 270 Lafayette was conducted. Some $650,000 in counterfeit notes was found along with the plates and negatives used to print them. Bogan's fingerprints were found on the wrappings of the Penn Station package and on one plate, one negative, and several notes found at 270 Lafayette. A government expert testified that the negatives at 270 Lafayette had been used to produce the counterfeit involved in the arrests in 1971, 1972, and 1973.
The jury convicted all four defendants and no question is raised concerning the sufficiency of the evidence on the substantive counts.
La Vecchia and Bogan initially argue that certain of the trial judge's remarks at the close of the trial constituted improper comment on the evidence in the case. It has long been recognized that a federal trial judge may comment on the evidence. Quercia v. United States, 289 U.S. 466, 77 L. Ed. 1321, 53 S. Ct. 698 (1933). The only issue here is whether the challenged comments were so unfair and unwarranted as to require reversal of defendants' convictions.
The first comment to which defendants object concerned the fingerprint evidence. Both La Vecchia's and Bogan's counsel stressed in their summations that only a few of Bogan's fingerprints had been found on the thousands of bills and the plates and negatives seized at 270 Lafayette. They both suggested to the jury that the prints might have been made at police headquarters, hinting that perhaps the prints resulted from the agents handing Bogan several bills at that time. In his summation of the evidence, the trial judge remarked:
I did not hear any testimony about what is necessary to produce clear fingerprints but I was impressed by the fact that after examining all this counterfeit money Mr. Ball [the fingerprint expert] found only seven latent prints besides those that were on, so apparently fingerprints do not show up every time.
Defendants claim that this statement may have been factually inaccurate and that it was unfair comment. We disagree. The statement was accurate, at least insofar as there is evidence in the record to support it. The government's fingerprint witness indicated in his testimony that the simple act of touching an object does not always produce fingerprints on the object.*fn6
Bogan and La Vecchia also take issue with the judge's remark that there were "only seven latent prints." In objecting, defense counsel stated that the fingerprint expert stated that "there were only seven latent prints, meaning seven different types of fingerprints, not seven individual prints." (emphasis added) Our review of the expert's testimony leads us to conclude that he meant that he found seven individual prints. However, this is immaterial since the trial judge did not say seven individual prints, but in fact used the same language that defense counsel asserted the expert used - "seven latent prints."
These statements of the trial judge were supported by evidence in the record, and they were not improper or unfair comment. The judge did not add to or distort the evidence in the record. Compare ...