Lumbard, Chief Judge, Friendly, Circuit Judge and Ryan, District Judge.*fn*
Defendants appeal from judgments of conviction for conspiracy to violate and for violation of the currency laws of the United States (Sections 371, 472 and 473, Title 18, U.S.C.).
Both appellants, along with a co-defendant Cepero, were convicted of conspiracy to counterfeit one million dollars in United States currency (Count I); and with two other defendants, Castanera and Castro, who did not stand trial, of unlawful possession of $304,000 counterfeit United States currency (Count VI). Appellant Carta, with Castanera and Castro, was also convicted of unlawfully selling $100,000 counterfeit United States currency (Count II).
Cepero, who was given a suspended sentence, has not appealed. Appellant Carta received a five year prison sentence and a ten year suspended sentence; and appellant Carril received a three year prison sentence and an eight year suspended sentence.
The principal error urged by Carril on the appeal is that the trial judge failed to charge that the Grand Jury testimony of Government witnesses might be considered as affirmative evidence and not merely as prior inconsistent statements impeaching their trial testimony. Additionally, Carril contends that he was prejudiced by the receipt of evidence not properly admissible against him, in that multiple conspiracies were proved.
Appellant Carta argues as a sole ground for reversal that the trial evidence is insufficient as a matter of law to sustain his conviction on any of the three counts -- the conspiracy, the unlawful sale or the possession of counterfeit United States currency on which he was sentenced.
The record establishes that the evidence was more than adequate. The Government's proof came principally from two witnesses -- Castanera and Castro.
Castanera, a printer, and Carril, a former Cuban Government official, had been associated with a defunct newspaper, El Mundo Americano; with equipment from this newspaper, they had gone into the photo offset business. Carta, a former Cuban Government official, was a friend of Carril and joined with Castanera and Carril to discuss the possibility of going into the business of printing counterfeit Dominican Republic pesos. Castanera was to do the printing; he priced the cost of a printing press and Carta gave him $350.00 toward its purchase. At this point, Carta informed one Castro, a mutual friend of appellants, of the plan and later introduced him to Castanera. It was contemplated that Castro was to replace Carril, for Carta was beginning to have doubts as to Carril's reliability. Castanera reported to Carril that he was not interested in continuing to work on the photo offset business and Carril told Castanera that he could take the equipment, which Carril had paid for and which was worth $1500, to Castanera's home. When the counterfeiting of the Dominican Republic pesos proved unsuccessful, the three -- Castanera, Carta and Castro -- agreed to counterfeit United States dollars. They told Carril that they intended to raise money for Cuba and asked Carril for financial backing, which he agreed to provide, but he was apparently never called upon to do so. Castanera was not to know that Carril was involved. With the printing press purchased by Carta and the other equipment donated by Carril, Castanera manufactured two editions of counterfeit $20, $50 and $100 bills and one edition of $20 counterfeit bills -- aggregating $840,000; and gave them to Carta and Castro, who sold them to Cepero and another. In December, 1966, Castro met with Carril, reminded him of their earlier plan to counterfeit and asked him if he could dispose of some of the counterfeit money. This Carril agreed to do and took some samples. Shortly thereafter, Carta left the enterprise, giving his share of the money to Castro, and Castro and Castanera continued into a fourth edition of $20 bills, amounting to $100,000, part of which they sold and the rest of which they divided. Then the two split up. Castanera then told Carril of his activities and asked him to help him hide his share of the counterfeit currency. Carril, after requesting samples, gave Castanera the keys to an apartment and instructed him where to hide the money. When Castanera was taken into custody, $304,000 in all denominations was found in the apartment. When Castro was arrested, it was Carril who informed and warned Castanera not to leave any evidence in his house. Even after Castro's first arrest, Carril made a further purchase on credit of $20,000 in bills from Castro, for which he never made payment. When Castro was arrested the second time, he had in his possession $80,950 in counterfeit bills of the three denominations.
This, in sum, was the testimony of Castro and Castanera after their plea of guilty. Apparently, it is the contention of Carta that his acquittal should have been directed because the proof of the conspiracy rested on the testimony of Castanera, who had given perjurious testimony before the Grand Jury, and because proof of possession and sale by Carta had not been established beyond a reasonable doubt.
The testimony we have set forth above fixed Carta along with Carril as one of the major operators of the conspiracy. Carta brought Castro into the venture; he introduced him to Castanera; and he financed the purchase of the printing press. Carta, as a witness, admitted knowing that Castanera and Castro were in the counterfeiting business, but denied any participation in it and denied that he had lived in the hotel at which Castro and Castanera testified they had regularly met with him during this time. In rebuttal, the Government established his residence at the hotel by the hotel manager. It was for the jury to determine whether Castro was to be believed, or whether he had perjured himself hoping thereby to obtain some consideration from the Government. The trial judge properly so charged.
Although Carta left the enterprise around the end of 1966, he was found guilty of possessing with the others the counterfeit money found in the apartment in March, 1967, on the evidence that he had given his share of the counterfeit money to Castro and had agreed to contribute to the rent for the apartment where it was stored; and had initially supplied the samples and the printing press on which was printed the fourth edition which followed his disagreement with Castro.
The charge of the Court was concise and clear. The jury was reminded of Carta's departure from the conspiracy before the fourth edition of counterfeit bills had been printed. It was instructed that it could not find Carta guilty of unlawful possession in March, 1967, unless it found that he had been a member of the conspiracy, that part of the counterfeit money found in March, 1967, was printed in furtherance of the conspiracy, and that some of it had been printed before Carta's withdrawal. It was correctly charged that, by leaving his share of the counterfeit money with Castanera and permitting its storage in the apartment, even if Carta otherwise had parted company with the group, it might be found that he was furthering the continuing object of the conspiracy, i.e., the disposal of the currency (United States v. Borelli, 336 F.2d 376 (1964, 2d Cir.); Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114 (1912)).
As for Carril's argument that there were several conspiracies, the evidence supported a finding of one conspiracy, and the jury was so charged. The purpose of the conspiracy was at all times the manufacture, ...