United States v. Anthony La Vecchia
513 F.2d 1210
2d Cir.
1975
Check Treatment

*3 Before LUMBARD, HAYS and MUL- LIGAN, Circuit Judges.

LUMBARD, Judge: Circuit Vecchia, Anthony Bogan, Edward Kurshenoff, and Nicholas An- Herbert appeal by conviction driotis from their of various coun- an Eastern District terfeiting offenses. U.S.C. 371, 472, Bogan Vecchia and 473.1 La §§ claim that several remarks of the trial judge unsupported by were so unfair and require the evidence reversal of as to single con- their convictions and that spiracy alleged was not in the indictment addition, proven. La Vecchia asserts improperly was in- that some evidence it was obtained troduced at trial because automobile, of his illegal an search the affidavit in while asserts that support of the issuance of the warrant of his business authorizing the search premises legally insufficient materially false statement. contained a both claim and Andriotis Petris, David A. De Asst. Atty., U. S. to estab- proof that the was insufficient (David Eastern District of New York conspiracy G. in a to membership lish their of one count of .La Vecchia was convicted Kurshenoff was convicted on conspiracy possess and distribute counter- to count and was sentenced to six months notes and four counts prison $10 feit Federal Reserve to be followed twelve months on possession of such notes. probation. and distribution He $750. was fined four-year concurrent sentenced He Andriotis was convicted on $5000. and fined terms on each count and of one receiving count of counterfeit mon- ey. He was sentenced on the concurrent convicted sentences year eight distributing months of counter- count and of one count which was sus- — pended put probation money. years. to concurrent feit He was sentenced for two four-year count. terms on each attempted af- money. negotiate We counterfeit sale of counter- distribute feit They Andriotis. were unable to firm. agree on a sales price, and McMillan case government’s heart charge took the negotiations former by two testimony consisted reached a satisfactory agreement with distributors, McMillan John counterfeit $10,000 Andriotis for the sale of a pack- Russo, been who liad Dominic age. Russo testified that Andriotis told money by selling counterfeit caught him to drive down 44th Street give testified McMillan agents. government package to “Paul” when he stops you $300,000 in in June you and asks if have a package for me. *4 other individuals six and Russo feit to a agent. Secret Service Martino tes- Russo prices. various times for ous arranged meeting a between Russo and $20,000 total of bought a he tified agent and Russo sold a pack- $5000 and that McMillan from counterfeit age government to the agent, after several persons, to other it he sold which Russo was arrested. implicat- He passing arrested later whom ed McMillan as his source and McMillan money. counterfeit was arrested in January of 1973. Russo and McMillan In June At point government this arranged counterfeit obtaining further discussed an elaborate scheme in an attempt to La contacted McMillan thereafter and catch La Vecchia red-handed. On Feb- counter- $25,000 in bought and Vecchia ruary 13, 1973, McMillan contacted La He de- notes. Reserve Federal $10 feit and Vecchia said he wanted to buy a he testified who to Russo these livered $25,000 package and take delivery on $15,- about and to sold $5000 February 15th, 15.3 On the McMillan remaining Martino. Phil to one met with La Vecchia at Beacon Discount attempt to enough good not *5 may plate, and on one been negative, and sev- factually inaccurate and that it was Lafayette. eral notes found at unfair A comment. We disa- gree. government expert The testified that statement was accurate, at least negatives at 270 insofar as Lafayette had been there is evidence in the record to produce support used to the counterfeit involved it. government’s The fingerprint 1971, 1972, in in the arrests and 1973. witness indicated in his testi- mony that simple act of touching an The convicted all four defendants object does not always produce finger- question and no is concerning raised prints object.6 sufficiency of the evidence on the sub- stantive counts. take issue La Vecchia also Bogan and initially there were remark that judge’s with the argue that certain of the trial judge’s objecting, In prints.” latent “only seven remarks at the close of the trial consti finger- stated that counsel defense improper tuted comment on the evidence only were “there that print expert stated It the case. long recognized has been meaning seven dif- prints, latent seven that a federal trial judge may comment not seven fingerprints, types ferent Quercia on the evidence. v. United added) (emphasis prints.” individual States, 289 U.S. testimony expert’s review Our (1933). L.Ed. 1321 The issue here is meant that that us to conclude leads challenged whether the comments were How- prints. individual seven he found so unfair and unwarranted as to require the trial since ever, immaterial this is reversal of defendants’ convictions. prints, say individual seven judge did The first comment to which de language that the same used but fact object fendants the finger concerned expert used asserted the defense counsel print evidence. Both La Vecchia’s and prints.” latent —“seven 6. After both the witness and attorney defense They might Q. not be? bills, handled some counterfeit Might attor- A. not be. ney asked: fingerprints might Q. Your be on the bills? [M]y fingerprints Might A. Q. be. are on these bills? necessarily. A. Not appears uncalled for. It the re judge the trial statements These judge’s mainder of the trial comments in the by evidence supported were sparked by his mistaken belief that improper were not or record, they suggested defense counsel had that since judge did not add comment. unfair businessmen, defendants they in the record. the evidence distort to or not be guilty. should While the Pinto, States Compare United would have better remarks been left un 1974).7 (2d Cir. said, we do not think that they preju diced defendants. The statement complaint Defendants’ second criminals white-collar should not receive improper judge an remark the trial special consideration unobjec is in itself judge’s statement concerned standing And tionable. alone the state “[tjhere suggestion by was a the de ment about La Vecchia’s associations you should fendants consider the with McMillan does not call for reversal the defendants fact are business of La Vecchia’s conviction. It consists of men and the witnesses are criminals. statement only one an otherwise prop problems One of the federal court charge. addition, er there was over trying have in to see that we do [is?] whelming and uncontroverted direct evi not deal with white-collar criminals on that La Vecchia dence was involved in a different basis from the crimes of counterfeiting operation. light working men.” record, the total we no find reversible judge later stated in a similar judge’s error comments on the vein, “If these guilty defendants are not Pinto, evidence. See United States acquit should you you them. If find supra; Birnbaum, they guilty beyond are a reasonable (2d Cir.), F.2d 250 doubt, the fact they are business- you is no might men excuse and consider argument Vecchia’s second that for all counsel said about Mr. character, improperly district court bad denied McMillan’s Mr. La Vecc- suppress his motion to prere talked with hia him for several hours on *6 government corded monies February 13th which were although you and 15th during a warrantless search asked to believe it nothing are had to do trunk of his automobile. The money with counterfeit.” part was of the $2500 advanced to by de- provoked comments These purchase for the McMillan of counterfeit attempt suggest to counsel’s fense money. remaining prerecord The in implicate attempt might McMillan money ed was found on La Vecchia’s in this counterfeit-, businessmen honest person when he was arrested. was afraid to operation because ing The necessity for a The basis of warrant in suppliers. real identify his these governed circumstances is testimony 49 suggestion U.S.C. 781-789 our §§ decision earlier connec- had had some United McMillan Francolino, v. States crime in 367 organized F.2d 1013 with members tion (1966), denied, cert. 386 Defense counsel U.S. 87 S.Ct. drug transaction. (1967), 18 L.Ed.2d 110 suppliers in this which McMillan’s noted recently most reaffirmed undertaking might be members United criminal Capra, v. 501 (2d States F.2d 267 McMillan and that Cir. organized crime - -, possible to avoid the 95 be anxious might implicating them. consequences Sec 781(a) provides tion possible judge’s comment The shall be (1) unlawful to transport, La Vecc- [i]t drawn from to be implications carry, convey any or clearly contraband with McMillan was arti- meetings hia’s gan’s fingerprints placed on the bills at nothing sup- 7. There was in the record that police station. ported suggestion defense counsel’s that Bo- contraband, sale and there is no doubt in, vessel, any means of upon, or ele agents good reason to be aircraft; (3) ... vehicle, or or La lieve that Vecchia’s car was used to vehicle, vessel, any or aircraft use sale. complex facilitate the delivery . . . . sale facilitate plan adopted by La Vecchia and any contraband article. necessitated each of them travel defines “contraband” to in- The statute quickly city. about the La Vecchia’s use money, 49 clude U.S.C. part of his automobile was a necessary 781(b), authorizes the seizure § of the transaction. The car was used to used in violation of section vehicle Bogan to find consummate the deal. In 781. 49 Francolino autho- U.S.C. § deed, possession “token” contra search of rizes warrantless vehicles band was transferred in the car when subject to seizure under section 782. Bogan gave La key Vecchia the to the only requirement is that there be Penn Station locker and when La Vecc believe probable cause to that the vehicle Thus, gave hia later it McMillan. is seizable under section officers had sufficient reason to believe claims that Francolino is that La Vecchia’s car was used to facili inapplicable to this case for two reasons. tate transfer of contraband. First, argues agents that the Vecchia v. United States One 1957 Lincoln Pre probable had no cause to believe that the miere, (7th Cir.), 265 F.2d 734 cert. de transport car had been used to contra- nied, 4 L.Ed.2d agents While it is true that band. (1959); States One 1950 knew that the car was not used to trans- Sedan, (2d Buick 1956); F.2d 219 Cir. port directly the counterfeit money to United States v. One 1951 Oldsmobile McMillan, there was evidence in the Sedan, 126 F.Supp. 517 (D.Conn.1954); record that showed that counterfeiters United States One 1941 Pontiac Se carry money often “extra” counterfeit dan, F.Supp. 999 (S.D.N.Y.1948); buyer with them on the chance that Dodge One Coupe, 43 may persuaded purchase more than F.Supp. (S.D.N.Y.1942). Compare he had originally buy. intended to (One) (1) United States v. 1971 Chevrolet fact, agent hap- testified that Automobile, (5th Corvette 496 F.2d 210 pened in one of the transactions involved 1974); States, Howard v. United Moreover, during in this case. day (9th 1970). question La Vecchia had been to the address which believed to be the Second, La Vecchia next notes source the counterfeit and he that his car was never actually seized had met in his car with who whereas Francolino the car was seized $25,000 transported the in counterfeit *7 after it was searched. He then argues placed that was the Penn Station that Francolino apply should not when together, locker. Taken and in consider- the car is never seized. disagree. We agent’s ation of the knowledge of La Francolino, expressly rejected we the extensive counterfeiting Vecchia’s activi- argument that a vehicle must be seized ties, these facts were a sufficient basis before it can be searched. If a vehicle agents probable give to the cause to be- seizure, be prior can searched to the ac lieve that the car had being been or was tual act unimportant. of seizure is As transport to used contraband. See Unit- agents probable the had cause to believe Capra, v. ed 501 F.2d States subject that Vecchia’s car was to sei 782, they zure under section legally could that the if we concluded Even it. It say search makes no sense to that probable cause not have agents did some later action or inaction on had been their La Vecchia’s car that believe part contraband, would somehow void the Fran the transport theretofore used here. The valid search. The time of the apply still search is rule would colino time, the un critical and at 781 it that time the make of section clause third permissible warrantless search was the be- a vehicle to facilitate to use lawful

1217 agents 15, believed the car was Further- February cause on locker seizure. is later done been subject Bogan What had more, that it indicated the car is irrelevant. a counter- and premises arrested Trabucco, 1311, stamps v. 424 F.2d 1313 States and counterfeit note feit Cir.), dismissed, (5th cert. 399 that person, n. U.S. his and found been 2224, 918, (1970). L.Ed.2d 785 had been money in this case and printing offset produced we Finally, note that whether or and on time of the arrest at the agents the search was automobile offset seen occasion had earlier the admission of the improper, $2450 premises. presses printing money was harmless error. Part marked Bogan’s un- La Vecchia’s light money the marked had been found on premis- connections with questioned person question La Vecchia’s and no has presses type of the es, presence the. raised concerning admissibility. been its counterfeit, Bo- produced that part of the package premarked Since counterfeit, it as deliverer of role gan’s money was admissible and there evi was that counter- to believe reasonable was paid dence that had been to La found on plates would be monies feit Vecchia, admission of remaining part affi- Lafayette. at 270 premises package premarked money was sufficient; was there clearly davit beyond a harmless reasonable doubt. counter- that believe cause probable Calif., 18, 24, v. Chapman 386 U.S. 21 — paraphernalia counterfeiting feit 824, (1967); S.Ct. Har Lafayette. at 270 would rington California, 395 U.S. (1969); 23 L.Ed.2d 284 Cham S.Ct. Bogan also claim La Vecchia and Maroney, 42, 53, bers S.Ct. insufficient be the affidavit that (1970); 26 L.Ed.2d 419 materially false contained a cause it Bazinet, 988 n. 4 statement.8 Specifically, the affidavit Cir.), (8th alleged that La Vecchia doing busi 34 L.Ed.2d 303 ness as Beacon Discount Sales at 270 Lafayette Street and at 125 East 18th Third, Bogan La Vecchia and ar in partnership Street with Edward Bo gue authorizing warrant gan and that the two men also operated premises search of Beacon Dis Printing. Beacon The affidavit indi Printing count Sales Beacon at 270 that these cated assertions were based in Lafayette improperly Street was issued. part on an examination of a Dun and First, they suggest that the affidavit Bradstreet file on the businesses. It is support of warrant was insufficient conceded that file indicated probable it failed because establish was the owner of Beacon cause counterfeit notes and counter Printing. While the wording of the affi feiting paraphernalia would be found at ambiguous9 davit is it arguable address. We disagree. The affida allegation that La Vecchia owned provides vit reasonable basis for believ Printing Beacon was based entirely on ing major suppli was a the information incorrectly attributed to of counterfeit and that er Dun Bradstreet. However, since La had delivered counterfeit bills to La Vecchia was otherwise connected with past apparently and had Vecchia *8 premises10 we agree with Judge such bills in placed the Penn Station mants, solely and not no on the Dun and there was Brad- court noted that district The report. showing made street was that the false statement Indeed, intentionally. light of all the other is no claim 10. There that La Vecchia was im- four-page affidavit there detailed facts properly premises through connected to the agent certainly to make no reason for the was Beacon Discount. McMillan had told the respect. minor in this one statement false agents operated La that Vecchia Beacon Dis- alleging interpreted places count and that one of as could be his affidavit business Lafayette. co-ownership of Beacon sign A Beacon Vecchia’s Discount La that investigations general by agent had been observed Printing earlier was based an at 270 by Lafayette. infor- agents obtained by and information conclusion that state- Judd’s false Vecchia Bogan knew, or certainly As ment immaterial. indicated in known, should have that McMillan must of the our discussion affidavit’s suffi- have dealt with others in passing the there more ciency, ample were than counterfeit public. to the The workings issuing for grounds search warrant such counterfeiting operation are of La without consideration Vecchia’s al- analogous to those of a large narcotics leged co-ownership Printing. Beacon ring. While each member of the con Gonzalez, United States v. 488 F.2d spiracy may not know of others in dif (2d 1973). 836-38 levels, ferent certainly those at the top, are who aware of the scope of opera Bogan argue La Finally, Vecchia tion, know that its success depends on evidence did not establish that many persons ringleader, printer, single conspiracy of a as was existence — buyers, wholesale distributors. They con- charged in the indictment. Arroyo, States v. 494 F.2d judge incorrectly trial tend (2d Cir.), denied, cert. establishing a the evidence as viewed 42 L.Ed.2d 51 (1974). Thus, conspiracy between Vecc- horizontal La McMillan’s efforts distribution were Bogan spanning 1971 to 1973. hia and part of the La Vecchia-Bogan conspiracy contend print and distribute counterfeit. Evi they was no evidence that con- there dence concerning McMillan’s activities buyers with either or spired distribu- properly admitted. currency bogus and that tors of of their did not de- success performance of others un-

pend on only argument raised by They suggest they to them. known Andriotis and Kurshenoff is that the evi prejudiced by the admission of evi- dence was insufficient to establish that concerning dence McMillan’s and Russo’s they were members the conspiracy in because activities that evidence diverted volving Vecchia, La Bogan, McMillan, jury’s attention the careful and Russo. The evidence indicated that guilt consideration their or innocence. bought Andriotis one package of coun terfeit money from Russo in 1972 and La Bogan clearly Vecchia and pack two such conspired with other to print each ages in the same year. light In the nega distribute counterfeit. Since the their more limited involvement, the trial Lafayette at 270 tives found were used court instructed jury they could produce all of the counterfeit involved properly conclude that there were three case, their in this lasted at conspiracies shown the evidence—one twenty-month period least cover 1971, 1972, in each of and 1973—and that the indictment. The ed in amount of Kurshenoff and Andriotis were members they printed large counterfeit was so the 1972 conspiracy.11 that the success of their obvi ously depended on distribution of the previously We held: counterfeit others. McMillan’s con buying ($450,000 tinual of counterfeit single For a to be act sufficient a twenty-month pe five occasions within actor within the ambit of draw an riod) was more sufficient than to enable nar- the federal conspiracy to violate conclude he was a mem laws, independent must be cotics there Vecchia-Bogan conspiracy the La ber of tending prove the de- evidence bogus as a wholesale distributor of mon knowledge some fendant had ey- single act conspiracy, or the broader Moreover, purchases McMillan’s such from which must be one itself substantial so knowledge may inferred. permissi- from the indictment 11. A variance (2d *9 any prejudice the variance did not of since 959, ble 1013, 372 U.S. 83 S.Ct. 10 L.Ed.2d 11 Agueci, (1963). See United States v. the defendants.

1219 the from which An- judgment affirm Noia, 979, v. De United States 451 F.2d Noia, appeals. De at 451 F.2d (2d driotis 1971) (per curiam). Cir. 981 The evi- justify must sufficient “an dence

inference that he knew [a defendant] Kurshenoff, As to we little have enterprise was involved in a criminal of affirming his conviction for hesitation scope.” substantial 451 at 981. F.2d Andriotis, conspiracy. negotiat Like he in terms price points. the sale ed Since Andriotis and Kurshenoff Moreover, large packages he to pass intended or sell counterfeit the ($5000 each) from Russo on counterfeit they bought they bills were Russo fact, Russo him two occasions. called in fact in the involved distribution receiving his up immediately after money. counterfeit question batch of counterfeit from McMil second whether record contains sufficient of 1972 told lan in the summer facts from which the jury could infer coming over right Kurshenoff he was knowledge their or the criminal broader by could with some. This action enterprise involved in this case. The jury that lead to believe that fact Andriotis and Kurshenoff dealt a regular become participant with one or two of this members of counterfeit. Kurshenoff distribution counterfeiting conspiracy pre does not persons must have known that other finding they clude a members supplying Russo with counterfeit conspiracy charged of the in the indict On money. the basis of information Agueci, v. ment. United States 817, jury properly could infer Kursh (2d denied, 826 372 Cir. cert. knowledge” enoff had “some 10 L.Ed.2d 11 broader and that Kurshenoff he was “in a en knew involved criminal Examining the evidence Noia, scope.” terprise substantial De we fact Andriotis’ involvement think the F.2d at 981. also United States he with dealt both Russo Rizzo, (2d 1974). Cir. McMillan is evidence from which We have considered the other conten- he jury could infer that knew that he raised them appellants tions and find in a broad enter involved criminal without merit. to be Moreover, prise. negotiated Andriotis price Affirmed. “points” suggesting in terms of familiarity counterfeiting some with the MULLIGAN, Judge (concur- Circuit trade a which often is conducted on ring): large many persons scale with involved. majority opinion I Rizzo, (2d except concur United States 492 F.2d 443 1974); Dono, agree I cannot the evidence United States v. (2d Cir.), adduced trial this case was F.2d 204 establish that Herbie (1970); sufficient Gonzalez-Carta, guilty single Kurshenoff was United States charged in (2d 1969). chain the indict- F.2d 548 of An The size ($10,000) ment. There was a variance in the purchase driotis’ was sufficient which at ly large jury proof best established that the could infer that he guilty separate of a con- he Kurshenoff was engaged must known that event, pur- spiracy Russo for sale and operation. in a substantial of the This chase bills. the evidence to convict Andriotis charged in the indict- was not crime was clearly substantive count sufficient. - ment, theory of the Govern- sentences received concurrent Since appeal case on and not ment’s below or substantive conspiracy charged jury to the counts, conviction the substan valid time, as we the court.1 At the same provides tive counts sufficient basis conspiracy charged judge ex- if it 1. The the indictment The district instructed June, February separate conspiracies 1972 and tended from *10 recently have noted in that they States v. believe exist as functioning (1975): Miley, 513 F.2d operatives in a continuing criminal en- terprise how can he be said to have —else This, does not however, automatically a stake in and to adopted have appa- the require reversal. Where the indict- ratus of their venture? charges ment one but the- jury: judge charged The one, proof than a shows more variance necessarily fatal. the counterfeit you is not “The true in- If find that all quiry printed plates is made ... not whether bills were from there proof, negatives been a variance same that were has in but from the Lafayette whether there has been Street on such vari- found in night Bogin ance as to ‘affect and Mr. La Vecc- Mr. substantial [sic] arrested, rights’ can that it Berger you the accused.” hia were find States, single conspiracy. United 629, 630, was a 55 S.Ct. (1935).

79 L.Ed. 1314 This, view, my is error since there is in nothing in the record link Kurshenoff Finding prejudice, no such I am com- Although and La Vecchia. Bogan with pelled to The spill-over concur. claim fact bought originated in bills here is not compelling and did ap- not malefactors, did principal with the how proach the danger of transference of any nexus of the Government establish guilt persuasive in Kotteakos v. complicity between them and intentional States, majority urges The here Kurshenoff? that, 1239, 90 L.Ed. (1946).2 See United large two since Kurshenoff v. Miley, supra, 513 F.2d at 1209. sep- bills on quantities two Russo, negotiated arate occasions my view, there is no evidence to points, price the sale in terms support a reasonable inference a jury prior the second sale advised engaged Kurshenoff was in any on- sell, more to there were that he had going venture with Vecc- to alert sufficient facts Kurshenoff hia, printers promoters supplying others were Russo. None of bogus bills. It is conceded that he never facts, is singly aggregate, or in the these any met the alleged conspirators knowledge. of such probative Russo, who, except for in the summer of I error here is think basic 1972, made two sales of counterfeit bills equating the sale of counterfeit to Kurshenoff in his wig Manhattan em- trafficking. drug with In numer- illegal porium, Esquire.3 Mr. While their total cases, has ous this court described $10,000, face value Kurshenoff’s in- w.as functioning drug chain typical vestment was Although $1900. the court of im- progressive steps properly charged that a defendant need —the adulteration, drugs, portation of raw not know identity of his fellow con- wholesaling and eventual packaging, spirators, he must know or have reason then conspiracies against “transactions two King statements in 1971 and against 1973 could not Raleigh be used interrupted, been discovered. Mr. ad- Andriotis dressing jury: Mr. you, Gentlemen, pray “I connection re- with the sales to alleged charged them that I member am not with . been priests.” made in the responded summer of 1972.” treason of the Coke opinion concern of treasons, is not Sampson’s foxes, with the that all time these “like joined but alleged together tails, rather with the though link at the their between Bowen, Kurshenoff and La heads were severed.” Vecc- C. The Lion and hia. origin Throne of the term “spoke” conspiracy? recognition 2. The at a admission trial of several defendants evidence of another con- spiracy particular with Since which the actual defendant sales occurred in Manhat- tan, York, associated is inimical the Southern to his District of interests is not New charged new. Kurshenoff was not the treason trial Sir Wal- substan- Raleigh, ter tive Sir Edward crime Coke reminded Eastern District. the' *11 I believe time —I cases, very these the second retailing. In then street And had I told him and of Herbie up the circumstances the sales and size called over coming I per various levels more at distribution some continuing existence a some. suasive knowing partic conspiracy and the chain since argues Government in the at each level of the actors ipation illiterate —he practically Russo v. United ongoing venture. See States stu- grade third aof reading skills 1206-1207; United supra, at Miley, known have should dent —Kurshenoff 513 F.2d v. Tramunti him- money States make did not Russo (2d 1975); States United print- Cir. 1105-1107 sequitur. non is a This self. (2d 1323, 1340 F.2d Sperling, 506 vo- a hardly v. is ing of Mallah, 1974); v. States United Cir. educa- classical a demands which cation 1974); (2d 983-84 is 503 A counterfeiter prerequisite. aas tion Arroyo, 494 F.2d States United presuma- copier, a but author an not Cir.), (2d for- any bills duplicate could bly he (1974); L.Ed.2d SiCt. being polylingual.4 currency without eign Bynum, 495-97 on (2d vacated remanded principal separate A reason this 903, 94 grounds, 417 U.S. other recently is this court opinion has view, my 41 L.Ed.2d two separate involving said on occasions are necessar considerations not the same drug conspiracies that it has become all counterfeiting venture in the ily present bring too common for the Government to negatives plates us. few before A against indictments numerous defend- phony ten dollar alone furnish here could single ants claim of a a continuing a basis. The size of bills when criminal acts could more rea- is type of this not indicative purchase sonably sensibly regarded two as assuring steady supply a organization an conspiracies. or more See United States simply equipment in a back room but Miley, supra, 10; 513 F.2d at 1207 at n. of cus on meet demands turned Sperling, supra, States v. reason could not tomers. Kurshenoff drug F.2d at 1340-41. The cases are that he have ably supposed case, here applied counterfeiting to a customer; imag why he have but should which, out, we pointed as is a dis- top above in a echelon others ined tinguishable undertaking. criminal not clear were also involved is prove drug it is a single easier to Since me. single than it is to show a purposes, for other criminal at a the bills that he The fact warnings our to the Government become anything establish not does discount a case one. especially relevant in like this transactions than sinister more perukes sum, purveyor I Even do themselves. not think that the evi- are bills bogus dence in understand this would case was sufficient to show Al- value. at face purchased to be connection between Kurshenoff and he after Kurshenoff the criminal though Russo called enterprise run by the princi- McMil- shipment pal malefactors, second received nor do I believe that transcript nothing anything lan, is there Kurshenoff’s dealings with receiving had mentioned Russo would he justify indicate court in finding testimony party. His a third it from Kurshenoff must have known of a criminal participation beyond was: that suggests Strangely enough, real This a licensed Russo was either possesses that Russo ex- managed ceptional extrasensory perception, He testified that estate salesman. or that being techniques to read examination employed able his license without to obtain need to be examination, tightened by guessing questions proctoring process reviewed. ability multiple questions. Russo’s choice to count unchallenged. the answers was no stran- While Kurshenoff Russo. regular calling, his spurious ger to on his showing expertise

there is no attempted. extension

part product

However, prejudice to I can find no require as to so serious *12 of his conviction.

reversal BREWER, Individually,

Frank C. similarly

on behalf all others

situated, Plaintiffs,

REPUBLIC STEEL CORPORATION et al., Defendants-Appellees, Rights Commission, Appli-

Ohio Civil Intervention-Appellant.

cant for

No. 74-1998. Appeals, States Court of

Sixth Circuit.

April Brown, Ohio, William J. Atty. Gen. Simmons,

Stephen Ruzicho, J. Andrew J. Columbus, Ohio, plaintiffs. Rudd, Lybarger, Karl, Leonard F. Sheerer, Lybarger Campbell Co., & L. P. A., Cleveland, Ohio, for Brewer. DeMarco, Sennett, Victor James C. Jones, Day, Reavis, Cleveland, Cockley & Ohio, Rudolph Milasick, L. Carl B. Frankel, Pa., Pittsburgh, Melvin S. Schwarzwald, Metzenbaum, Gaines, Fin- ley Stern, Cleveland, Ohio, & for defend- ants-appellees. PHILLIPS,

Before Judge, Chief LIVELY, MILLER and Judges. Circuit PHILLIPS, Judge. Chief presents This case the question wheth- er Rights Ohio Civil Commission notes Reserve Federal $10 counterfeit Russo followed these directions nine consignment made the delivery. paid Andriotis dollar), and cents (nine points for the package. Thereafter Mar- all he sold tino was arrested when he sold counter- at vari-

Notes

notes Sales, Street, 125 East 18th to consum- shortly testified McMillan sell. to mate the transaction. McMillan was to $25,000 bought a second he thereafter pay La Vecchia and $2500 in turn re- time This Vecchia. La from package key ceive a to a Penn Station locker to house Vecchia’s to La went when where the counterfeit placed. would be wait until to he had money, up the pick finalizing After arrangements these La to La counterfeit brought someone Vecchia left 125 East 18th in his car and money to gave McMillan Vecchia. shortly government thereafter agents he then testified Russo and Russo observed him entering Lafayette Kurshe- package $5000 another sold Street, Bogan’s where printing shop was $15,000 to Marti- or so another and noff La located.4 Vecchia shortly left after no. entering the building. Meanwhile, Bo- August, gan arrived at beginning 125 East shortly 18th aft- About Vecc- $100,000 La er La Vecchia had left. He received a McMillan Russo, who sold telephone call it to and left. He was followed delivered hia addition, by agents5 who observed him meet $10,000 Martino. agent 4. An premises had visited package these 2. Both times Russo sold a Kurshe- week noff, before and signs had noted reading McMillan testified that he waited in the “Bea- displayed con Press” and “Beacon Sales” were place car downstairs in front of Kurshenoff’s there. of business. present 5. McMillan was still at 125 East 18th 3. On both the 13th and the 15th McMillan was arrived, agents by when and he told the transmitting outfitted with a radio device so recognized Bogan’s radio that he voice as the arrangement of the sale was overheard person voice of the who delivered the counter- government agents. feit to La Vecchia’s house in 1972. Bogan’s counsel stressed in their summa- in the car. La Vecc- latter’s only tions that Bogan’s few of finger- 18th, picked to 125 hia then drove East prints had been found on the McMillan, thousands gave McMillan the up of bills the plates negatives genuine return for key locker $2500 Lafayette. They seized at 270 both sug- currency, the serial numbers of which gested prints to the that the might government had been recorded have been police headquarters, made at Thereafter, $25,000 agents. package hinting perhaps prints resulted of counterfeit was found Penn from the agents handing Bogan several At point locker. this Yecchia Station bills at that time. In his summation of were arrested. evidence, the trial judge remarked: arrest, At the time of his $50 I did hear any testimony about prerecorded purchase money was found what necessary produce clear fin- person, on La Vecchia’s and the remain- gerprints I but was impressed by the ing was found in the trunk of his fact that after examining all ca,r. arrests, Subsequent to the a war- counterfeit Mr. Ball fin- [the Lafayette rant search was con- gerprint expert] seven la- $650,000 ducted. Some prints tent besides on, those that were along plates notes was found with the apparently so fingerprints do not show negatives used print them. Bo- up every time. gan’s fingerprints were found on the Defendants wrappings of the Penn claim package Station this statement