Moore and Feinberg, Circuit Judges, and McLean, District Judge.*fn*
This appeal is from a judgment of conviction in the United States District Court for the Southern District of New York, after a seven day non-jury trial before Robert C. Zampano, United States District Judge for the District of Connecticut, sitting by designation. In a detailed opinion, 273 F. Supp. 977, Judge Zampano found both appellants guilty on 34 counts charging fraudulent use of the mail or interstate wires, 18 U.S.C. §§ 1341, 1343, and of one conspiracy count, 18 U.S.C. § 371; in addition, appellant Sheiner was found guilty of the sale and possession, and appellant Piacentile of the sale, of fraudulently altered pennies in violation of 18 U.S.C. § 331. Appellants were each sentenced to three months imprisonment on one count of the mail fraud charges, to be followed by two years probation on all the other counts. On May 21, 1968, Judge Zampano denied appellant Sheiner's motion to set aside his conviction. In this appeal Piacentile primarily questions the sufficiency of the evidence that the coins in question were fraudulently altered or that he knew that they were. Appellant Sheiner argues only that his representation by the same trial attorney as Piacentile was so prejudicial as to deny him the effective assistance of counsel.*fn1 A review of the relevant facts indicates that these claims are without merit.
In April 1965, Piacentile began advertising and selling "multi-struck" 1964 pennies to coin collectors and dealers. He alleged that he had discovered the coins in several sealed Federal Reserve bags of pennies which he had purchased for purposes of speculation apparently because of a coin shortage. The coins were impressed with multiple images of Lincoln on their heads; some of them also had a double impression of the date and the word "Liberty." The metal on the "tail" sides of the coins bulged but carried no multiple images. In May 1965, Piacentile approached Sheiner, the owner of a retail coin store, who agreed to help him distribute the coins.
Apparently in reaction to controversy in the coin world about the authenticity of the pennies as mint errors, appellants advertised and held a demonstration on May 23, 1965, at a coin convention in a New York hotel. Before an audience of about 100 people, Sheiner displayed a sealed Federal Reserve bag which he announced had not been opened previously. A coin dealer present pointed out that such bags could be opened without breaking the seal and started to demonstrate, but Sheiner snatched the bag back from him before he could finish. Sheiner then cut open the bag, examined the coins in it, and found three of the multi-struck pennies among them. At trial, one of the Government's witnesses demonstrated that a Federal Reserve bag could be opened and closed without breaking the seal. As the Government noted at trial, it is difficult to imagine how appellants could have known in advance -- or even hopefully expected -- that some of their multi-struck pennies would actually be in a particular Federal Reserve bag, unless they had previously opened it themselves or knew that it had been opened. Yet their advertisements of the show announced with great confidence: "We are opening a new bag containing them [multiple struck pennies]."
In the following weeks Sheiner and Piacentile wrote to a number of coin journals reporting the events of the convention demonstration in several versions. In one such report Federal Reserve personnel at the show were alleged to have authenticated the event; in others it was claimed that Secret Service agents had been offered the bag at the convention, either to determine its authenticity or for confiscation, but had refused to take it. According to the uncontradicted testimony of the Government's witnesses, none of these allegations was true. In the three months following the coin show Sheiner sold over 100 of the coins at prices ranging from $40 to $75 each. Appellants continued to advertise the pennies extensively in the New York Times and on Sheiner's teletype wire to other dealers until their indictment in June 1966.
The record below amply supports the trial judge's finding that the pennies were not true mint errors but had been artificially altered to appear multi-struck after they left the mint. The chief government witness, an Assistant Technical Consultant to the Director of the Mint, demonstrated in detail that it would have been physically impossible for the federal mint machinery to have produced the type of multiple impressions found on the Piacentile pennies. In addition, he testified that the coins were too large in diameter to have come from the mint but might have been enlarged by being restruck on some other press, and that the bulge on the tail side of the coins would be a natural result of striking the head after the coin had been removed from its original die, but could not have been caused by multi-striking in the original. Although the defendants, neither of whom took the stand, produced four expert witnesses who testified that they thought the coins were genuine mint errors, none offered a satisfactory explanation of how the mint equipment could have produced the multiple strikes.
Piacentile argues that the conclusion that the coins were artificially altered was merely an "inference" and was impermissibly based on the opinions of the Government's witnesses, rather than on established facts. A persuasive showing that the multi-striking could not have been caused by the mint machinery, however, is substantial proof that they were tampered with after leaving the mint. The Government's expert witness presented a description of the technical operation of the mint as a factual basis from which to determine the source of the multi-striking. His opinions, based on that factual presentation, were clearly admissible.
When the subject matter is of such a technical nature that the proper conclusion to be drawn from the facts depends upon professional or scientific knowledge or skill, qualified experts may express their opinions as to the proper inference to be drawn from a given set of facts, as an aid to the jury in reaching their own conclusion in the case before them.
Richardson, Evidence § 387, at 378-79 (9th ed. 1964); see 2 Wigmore, Evidence § 557 (3d ed. 1940).
Piacentile also asserts that the trial judge completely disregarded the opposing testimony of the defense witnesses and the cross-examination of the Government's witnesses. There is no indication that the judge failed to evaluate this evidence. Indeed, he specifically took defense testimony into account when he held that "no reasonable explanation was given, even by defendants' experts," of how the coins could be mint errors. 273 F. Supp. at 982. His conclusion must be sustained "if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942). On the record before us that standard is satisfied.
Piacentile next argues that no proof was evinced that defendants knew or should have known that the coins were altered after leaving the mint, that finding being merely an "inference built upon another inference," which could establish no more than a suspicion of guilt. As we noted above, the finding that the coins were illegally altered outside the mint was virtually a corollary of the finding that they were not multi-struck by the mint. While knowledge is a necessary element of the crime of ...