The opinion of the court was delivered by: WORTENDYKE
In a Federal indictment by the Grand Jury for the District of New Jersey filed in this Court on October 24, 1962 Dominick J. Natale and thirteen other individuals were charged with having violated 18 U.S.C. § 371 by conspiring with each other and with other unknown persons to violate §§ 2314 and 2315 of the aforesaid title. The unlawful objects of the charged conspiracy were stated to be the transportation in Interstate Commerce, to places in other states of the United States and to the Dominion of Canada, with fraudulent intent, of counterfeit coupon bonds of General Motors Acceptance Corporation, with knowledge of their counterfeit character. Among the overt acts charged against the defendant, Natale, was participation by him in the photographing, printing and counterfeiting of 3,000 21 year, 5%, 1980 Series General Motors Acceptance Corporation bonds, each bond in the principal amount of $1,000, between August 1, 1961 and December 20, 1961.
Some of the defendants who were charged with conspiring pleaded guilty to that offense. Others, including Natale, pleaded not guilty thereto and were tried in this Court with a jury between June 17 and July 9, 1965. Natale and all but one of the other defendants who stood trial were convicted by the jury's verdict.
Natale timely moved this Court for a new trial upon the following three grounds, viz.: (1) Insufficiency of the evidence to support the finding of Natale's guilt of the conspiracy charged; (2) Prejudicial comments made by the prosecution during its summation; (3) Error in the Court's charge resulting in coercion of the jury by instructions tending to limit the jury's deliberations.
In his brief in support of his motion Natale makes the following contentions, viz.: (1) The evidence against him was insufficient to sustain his conviction; (2) the Court charged the jury erroneously (a) by declining to charge Natale's theory of defense, (b) by charging that if defendants violated 18 U.S.C. § 2314 they could be found guilty; and (3) a new trial should be granted because prejudicial newspaper publications prevented a fair trial.
We recognize that, in multidefendant conspiracy cases the court should carefully scrutinize and separately weigh the evidence relating to each defendant to avoid inferences of guilt from evidence merely of association with other defendants as to whom the evidence of conspiracy may be substantial. At the same time we bear in mind the established principle that circumstantial evidence is sufficient to sustain conviction under 18 U.S.C. § 371, and that such circumstantial evidence need not be inconsistent with every conclusion save that of guilt; provided the evidence establishes a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Monticello, 3rd Cir. 1959, 264 F.2d 47; United States v. Giuliano, 3rd Cir. 1959, 263 F.2d 582; United States v. Olivo, 3rd Cir. 1960, 278 F.2d 415. We are further guided, in passing upon the sufficiency of evidence to sustain a conviction, by the directive that the evidence must be weighed in a view most favorable to the Government, and that if, when so viewed, the conviction is sustained by circumstantial evidence it must be upheld. United States v. Carlucci, 3rd Cir. 1961, 288 F.2d 691, cert. den. 1961, 366 U.S. 961, 81 S. Ct. 1920, 6 L. Ed. 2d 1253.
Of the several judicial decisions which the research of counsel and the court has discovered, United States v. Falcone, 1940, 311 U.S. 205, 61 S. Ct. 204, 85 L. Ed. 128; Ingram v. United States, 1959, 360 U.S. 672, 79 S. Ct. 1314, 3 L. Ed. 2d 1503; United States v. Carlucci, supra, and United States v. Gerke, 3rd Cir. 1942, 125 F.2d 243, cert. den. 1942, 316 U.S. 667, 62 S. Ct. 1033, 86 L. Ed. 1742, appear to be factually most suggestive of the circumstances disclosed by the evidence in the present case. A brief review of the facts disclosed in the opinions in these cited cases may serve to afford patterns against which the sufficiency of the evidence in the case before us may be appraised. In Gerke, supra, that named defendant and others were charged with conspiracy to import alcohol unlawfully into the United States. The operations of the conspirators by means of which the importation was accomplished involved the purchase and repair of an ocean going vessel (The Leffler) and the transfer of cargo therefrom to a place or places in the United States. The only evidence upon which the defendant Gerke could be found connected with the conspiracy was that which disclosed that at the time a vessel from which the Leffler obtained her cargo off the United States coast had been loading at Antwerp, Belgium, Gerke was on the quay in conversation with agents for a local distillery. Gerke returned from Europe to the United States shortly thereafter. He was again seen on the dock at Yarmouth, Nova Scotia, talking with the captain of another vessel as she was about to sail from that port. The latter vessel discharged a cargo of alcohol at night at an old brickyard on the Raritan River in New Jersey where Gerke came on board when the vessel arrived. He was seen at Nova Scotia ports when each of two other alcoholladen vessels sailed therefrom. In holding that the evidence was sufficient to support a verdict against Gerke for conspiracy, Judge Maris had this to say, 125 F.2d at page 245 of his opinion: "It is difficult to conceive that merely a succession of consequences was responsible for Gerke's presence in Halifax and Yarmouth (Nova Scotia), in New Jersey and in Antwerp, Belgium, just as cargoes of alcohol were either being loaded or unloaded upon the Reo 1, the Augusta and Raymond, and the Hillfern. The only credible explanation of his peripatetic activities is that he was directly concerned in the purchase of the alcohol and its transportation to and importation into the United States." Accordingly the judgment against Gerke was affirmed. With respect to two of the other alleged conspirators, the Court, relying upon United States v. Falcone, supra, reversed the judgments against them. The Falcone rule was stated in Gerke to be that: "* * * [Evidence] of the furnishing of supplies to an illicit distiller with knowledge that they were to be used illicitly was not sufficient to convict the one who furnished the supplies of membership in a conspiracy to which the distiller was a party, but of which the supplier was not shown to have had any knowledge." The Gerke opinion also states (same page) that "* * * the finding that these defendants [whose convictions were reversed] for profit sold a vessel to persons who they knew intended to and later did use it in an illegal enterprise will not support their conviction for the offense with which they are charged in the third count of the indictment. For there is no evidence that they participated in the conspiracy or knew of its existence." The opinion in Falcone (311 U.S. p. 210, 61 S. Ct. p. 207) states that, "The gist of the offense of conspiracy * * * is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy." The Court adds that "Those having no knowledge of the conspiracy are not conspirators (citing cases); and one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge." Falcone is not completely apposite here however. The facts in that case simply did not indicate criminal involvement. Rather, as the Court decided, they fell on the innocent side of that shadowy, elusive line which separates conspiracy from overlapping forms of cooperation, criminal or otherwise. In Falcone the defendants made sales, otherwise legitimate, to illicit distillers knowing "that the materials would be used for illicit distilling * * *" ( Falcone, 311 U.S. p. 208, 61 S. Ct. p. 205). "But it could not be inferred from that or from the casual and unexplained meetings of some of the respondents with others who were convicted as conspirators that respondents knew of the conspiracy", ( Falcone, 311 U.S. at 210, 61 S. Ct. p. 206).
In the instant case the indictment charges that the conspiracy alleged had for its object the substantive offense of interstate transportation of counterfeit corporate securities. Such an offense would violate 18 U.S.C. § 2314. The gist of the offense proscribed in § 2314 is the transportation in interstate commerce, with fraudulent intent, of counterfeit securities knowing them to have been counterfeited. Here the facts are quite different than in Falcone. We have a direct response that Natale, as well as the other defendants tried, was "actually responsible for making the bonds or made them." This testimony was by the Government's paid informant, upon whose testimony the jury obviously had to rely to a great extent, since it constituted a very necessary element of the Government's case against the other convicted defendants. The evidence is virtually compelling that Natale knew that he was counterfeiting bonds. An almost inescapable inference from the work he performed - work which necessitated repeated close observation of the bonds or images of the bonds - is that he read the words on the bonds which indicated they were printed by the American Bank Note Company and were to be cashed in New York. Also, here there were no "* * * casual and unexplained meetings * * * with others who were convicted as conspirators * * *", such as the meetings in Falcone. Natale was selected by the Mattia people to do this work. The evidence indicated that while the counterfeiting operation was in progress, he worked in their building, at night, for the most part, on this job, in their company, and under their supervision for a period of weeks.
There was testimony in the present case that Natale, during nighttime hours, participated with employees of the Mattia Company in the counterfeiting of GMAC Bonds. The counterfeiting process was described in detail by an expert witness and amply explained by the use of exhibits on the trial. Natale, testifying in his own behalf, generally denied participation in the counterfeiting operation. His association with the employees of the Mattia Company is inferable from the testimony of a former employee of the company (who became a paid informant of the Government) that Natale was seen by him in the company of the Mattia employees during nighttime hours at the Mattia plant while the counterfeiting process was in progress.
Although there was other evidence pending to negate the effect of the evidence noted above, for the purposes of this motion, we must view the evidence in the light most favorable to the Government.
There was sufficient evidence to justify inference that Natale participated with Mattia employees in counterfeiting GMAC Bonds. There was ample evidence in the form of legends upon the bonds, and upon their coupons, that, in order to realize upon the bonds financially their transportation in interstate commerce would be required. That Natale knew that the bonds were being counterfeited, and that they would probably be transported in interstate commerce, is reasonably inferable from the proofs.
A person may be guilty of a conspiracy even though he is absent when the crime which is the object of the conspiracy is committed. His knowledge as to the scope of the conspiracy may be limited; he need not know the details of the plan or operations in furtherance thereof. Knowledge of membership in the conspiracy, the part played by each of the members and the division of the spoils is immaterial. He must know the purpose of the conspiracy, however, otherwise he is not guilty. Marino v. United States, 9th Cir. 1937, 91 F.2d 691, 696, 113 A.L.R. 975. "Once the existence of a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it." ...