Defendants-appellánts Richard Nutile and Joseph Indelicate were convicted by a jury on three counts of unlawfully and willfully possessing United States Treasury checks stolen from the mails, 18 U.S.C. § 1708, 1 three counts of uttering and publishing as true the same United States Treasury checks with an intent to defraud the United States, 18 U.S.C. § 495, 2 and of aiding and abetting on all counts, 18 U.S.C. § 2. 3 Defendants appeal their convictions, alleging the commission of various errors by the district court during the course of their joint trial. We affirm.
The Indictment
The indictment handed down by the grand jury contained nine counts alleging unlawful activity by three persons: appellants Indelicate and Nutile and Anthony Costa. Costa pleaded guilty to Counts V and IX, which pertained only to him, recеived a sentence of two years probation and testified against appellants at their trial. Count I, a conspiracy count, was eliminated from the consideration of the jury when the district court dismissed it for failure of the government to present evidence to support its allegation that the checks were stolen from a receptacle owned and maintained by the Post Office.
The Facts
At trial, a stipulation was put in evidence which stated that sixty-eight United States Treasury checks were mailed to the named payees at various times throughout the fall and winter of 1974 and the spring of 1975, and that, if called to testify, the payees would testify that they neither received nor endorsed the checks. During the course of the trial, the government put in evidence the sixty-eight checks, all of which had been negotiated and presented for payment *380 to the United States. The checks had been negotiated by one or more of three small grocery stores in Massachusetts: the Green Apple, located on Gainsborough Street in Boston; the Mini Mart, located on Beacon Street in Boston; and a store owned by Costa located in Randolph, Massachusetts.
The government introduced the following evidence to connect appellants with the checks. Several vendors and jobbers of groceries in the Boston area testified that they serviced the Green Apple and, on the basis of that experience, believed that the store was owned and/or operated by Nutile. They testified further that on numerous occasions they were paid for goods delivered to the Green Apple with Treasury checks which later bounced, and identified these checks as being among those alleged in the indictment to have been stolen from the mails. Henry Boch, one of the jobbers, testified that Nutile endorsed a Treasury check payable to Anne E. Flanagan with the words “Green Apple” and paid him for goods with it. Agent Artone of the United States Secret Service testified that fingerprints on two of the Treasury checks enumerated in the indictment and negotiated by the Mini Mart were identical to Nutile’s fingerprints. Other vendors testified that they believed Nutile operated the Green Apple in partnership with another person.
Suppliers and creditors of the Mini Mart testified that Indelicato owned and operated the store, and that Indelicato paid them for goods and services purchased by the Mini Mart with Treasury checks enumerated in the indictment. One supplier testified that he received Treasury checks enumerated in the indictment from Indelicato at both the Mini Mart and the Green Apple. Several suppliers testified that when the enumerated Treasury checks received from Indelicato began to bounce, Indelicato agreed to make the checks good. Agent Artone identified a fingerprint on one of the enumerated Treasury checks negotiated by the Green Apple as that of Indelicato.
The most damaging evidence against appellants was provided by the testimony of Costa, the alleged coconspirator who pleaded guilty to possessing and uttering as genuine twenty-four of the sixty-eight checks specified in the indictment. Costa testified that he met Nutile through Indelicato, a lоngtime friend, and that the meeting started Costa’s involvement in the use of his store for the passing of Treasury checks. Costa testified that during a visit by Indelicato and Nutile to his store in Randolph, Nutile asked him as a favor to cash a Treasury check payable to Annie Tiso (Item No. 2 in the indictment). After the check bounced, Costa called Indelicato in an effort to reach Nutile. Indelicato assured him the checks would be taken care of and promised to call Nutile. Nutile subsequently called Costa and gave him similar assurances. Shortly thereafter, a man known only as the “Gypsy” appeared at Costa’s store. Costa testified that the Gypsy told him he had been sent by Nutile to take care of the bad check and gave Costa additional Treasury checks (listed in the indictment). Cos-ta testified further that the Gypsy brought him many checks over the next few months, saying each time he had been sent by Nu-tile. After all the checks bounced, Costa told the Gypsy that he would cash no more checks. Within a short time, Nutile, himself, appeared at Costa’s store and urged him to continue cashing the checks. When Costa persisted in his refusal, Nutile showed him a bulge in his coat and said pointedly, “You have a family.”
The only evidence presented by either appellant was a hospital record introduced by Nutile showing that he had been an intensive care patient at the Milton, Massachusetts Hospital from October 23, 1974, to November 1, 1974, and an inpatient in the same hospital from November 2, 1974, to November 9, 1974. This evidence was introduced to show that Nutile could not have endorsed the Flanagan check over to Henry Boch at the Green Apple on or about November 6, 1974, as Boch had testified.
Defendant-Appellant Indelicato
We consider first the appeal of Indelicato. Should we find merit in his position, our decision would concurrently sweep *381 away the conviction of Nutile on the same counts. Indelicate alleges error by the district court in denying his motion for a directed verdict of acquittal as to Counts II, III, IV, VI, VII, and VIII, the substantive counts of the indictment. Indelicate contends that on each of the six substantive counts the government was required to prove that the checks were stolen from the mails, a burden he says the district court found the government had not met when it granted the motion for a judgment of acquittal as to Count I. If the evidence was insufficient as a matter of law to establish an essential element of the conspiracy count, so the argument goes, it was reversible error to permit the jury to render verdicts as to counts of the indictment that required the same element to be proven. However plausible this argument may at first glance seem, it fails, for it is premised on an incorrect assumption that equates the “receptacles owned and maintained by the United States Postal Department” element of Count I with the “stolen from the mail” element of the substantive counts of the indictment.
Count I of the indictment, the conspiracy count, specifically alleged that the Treasury checks in question had “been stolen from a receptacle owned and maintained by the United States Postal Department.” In granting the motion for a judgment of acquittal, the district court found
there was a part of the conspiracy that the defendants would receive checks drawn on the Trеasury, said checks having been stolen from a receptacle owned and maintained by the Postal Department and there has been no evidence were [sic ], in fact owned or stolen from a receptacle owned or maintained by the Postal Department. That calls for speculation. The Court is not willing to state it is sufficient for the purpose of allowing Count 1 to go to the jury.
Contrary to the assertions of appellant, neither the language of the substantive counts nor the statutes on which the counts were based required the government to prove that the checks were stolen from receptacles owned and mаintained by the United States Post Office.
Counts II, III, and IV each alleged unlawful and willful possession of check(s) “which had been stolen from the
mail’’
(emphasis added). The language of these counts clearly does not impose upon the government the same obligation imposed by Count I,
i.
e., to prove that the checks were stolen from a
receptacle
owned and maintained by the Post Office. While proof of theft of materials from a receptacle owned and maintained by the Post Office obviously would prove theft from the mails, it is equally obvious that proof of theft from the mails would not necessarily prove theft from a postal receptacle.
4
The statute on which Counts II, III, and IV were based reflects the more inclusive nature of the term “mail” by making unlawful the possession of materials stolen “from or out of any
mail,
post office, or station thereof, letter box,
mail receptacle ”
(emphasis added). 18 U.S.C. § 1708. This statute has been consistently construed so as not to require direct proof of theft or taking from the mails.
Blue v. United States,
Indelicate mounts the same challenge to his convictions on Counts VI, VII, and VIII of the indictment. We find even less substance to his claim in regard to these counts. Neither the language of Counts VI, VII, and VIII nor the statute on which they are based contain any reference to the mails or to receptacles owned and maintained by the Post Office. The statute prohibits the false uttering of writings with an intent to defraud the United States. 18 U.S.C. § 495. Counts VI, VII, and VIII flesh out this skeleton by specifying the actions of appellants which the government alleged to be violative of the statute. Since the government was not required to offer any evidence pertaining tо the mails to prove these counts, the refusal of the district court to grant the motion for judgment of acquittal was clearly correct. 5
Defendant-Appellant Nutile
Nutile alleges the commission of five errors by the district court.
1. The Failure To Dismiss the Indictment Because of Unnecessary and Unreasonable Delay in the Presentation of Charges Against Nutile to the Grand Jury
The indictment encompassed the period from August 9, 1974, to April 14, 1975, and was not returned until August 29, 1978, some forty months after the commission of the last acts alleged therein. Nutile acknowledges that the district court’s ruling was consistent with the standard enunciated by this court in
United States v. Daley,
[Pjroof of actual prejudice makes a due process claim concrete and ripe for adjudication . . . . [Pjroof of prejudice is generally a necessary but not sufficient element of a due process claim . [TJhe due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.
United States v. Lovasco, supra,
at 789-90,
2. The Admission of Hearsay Testimony
Nutile next contends that the district court committed prejudicial error by admitting hearsay evidence pertaining to the existence of a conspiracy without first making the determination required by
United States v. Petroziello,
The government’s contention that the district court properly instructed the jury to disregard the hearsay testimony has no basis at all. The district court merely instructed the jury that the conspiracy count had been removed from their consideratiоn and they were not to concern themselves with it. This can hardly be considered to be an instruction to disregard Costa’s testimony as to the statements of the Gypsy, or even to be a blanket instruction to disregard all evidence pertaining to the conspiracy count. This was not a case in which the court had drawn bright lines to distinguish the conspiracy count from the substantive counts for the benefit of the jury.
See, e. g., United States v. Richman,
We first examine the evidence and testimony not linked directly to Costa. Agent Artone testified, that Nutile’s fingerprints were found on three of the sixty-eight fraudulently negotiated Treasury checks enumerated in the indictment. Several deliverymen and salesmen testified that they supplied Nutile at the Green Apple and received Treasury checks in payment which subsequently bounced. Henry Boch testified that Nutile endorsed the Flanagan
*384
check with the words “Green Apple” on or about November 6,1974, and paid for goods with it. While this evidence brought Nutile into the picture, albeit sketchily, it was Costa’s testimony that put him clearly in the foreground. Costa testified that Nutile asked him to cash the Tiso check, despite the fact Nutile could have cashed it at his own storе. He testified further than when the Tiso check bounced, Nutile assured him over the phone that the check would be taken care of. Costa then testified as to the Gypsy’s appearance and to his hearsay statements implicating Nutile. The most damaging part of Costa’s testimony was nonhearsay; Nutile came to Costa’s store and threatened him if he did not continue to cash checks. Even without the hearsay statements, the jury could infer from the coincidence of the Gypsy’s appearance soon after Nutile promised to take care of the Tiso check that the Gypsy came to Costa’s store at Nutile’s behest. It cоuld also properly infer from Nutile’s appearance at Cos-ta’s store shortly after Costa told the Gypsy he would cash no more Treasury checks that Nutile was responsible for the Gypsy’s presence and knew the checks were stolen and fraudulently endorsed. The hearsay evidence did not justify any conclusions not already warranted by the nonhearsay evidence implicating Nutile. The failure of the district court to instruct the jury to disregard the evidence was, therefore, harmless error.
Harrington v. California,
3. Whether Nutile’s Motion for Judgment of Acquittal as to Counts II, III, IV, VI, VII, and VIII Should Have Been Granted
In assessing the correctness of a denial of a motion for judgment оf acquittal, we must review the evidence considered as a whole, including all inferences that may be reasonably drawn therefrom, in the light most favorable to the government.
United States v. Brown,
Counts II, III, and IV each alleged violation of the prohibition against the willful possession of materials stolen from the mails, knowing the material to have been stolen. 18 U.S.C. § 1708. To sustain convictions as to these counts, the government had to prove beyond a reasonable doubt that the checks enumerated in each count were stolen from the mails, that the appellant possessed them and that he knew they were stolen, although not necessarily from the mails.
United States v. Hines,
Counts VI, VII, and VIII each alleged the violation of 18 U.S.C. § 495,
*385
which prohibits the willful uttering and publishing as true any false, forged, altered or counterfeited writing in an attempt to defraud the United States. To sustain convictions on these counts, the government had to prove beyond a reasonable doubt that appellant attempted to circulate the enumerated checks as genuine, knowing them to have been falsely endorsed, in an attempt to defraud the United States.
United States v. Lonsdale,
Knowledge that checks have been falsely endorsed may be inferred from the circumstances of a case.
United States v. Calabro,
Each of the substantive counts also alleged that appellant aided and abetted Joseph Indelicate in the violation of the above described statutes. 18 U.S.C. § 2. To sustain a conviction on the aiding and abetting portions of these counts, the government had to prove beyond a reasonable doubt that appellant willfully associated himself in some way with the criminal venture and willfully participated in it as he would in something he wished to bring about.
Roberts v. United States,
a. Counts II and VI
Viewed in the light most favorable to the government, the evidence pertaining to Counts II and VI would justify a reasonable conclusion by a rational juror that Nutile was guilty beyond a reasonable doubt on each count. The stipulation stated that a check payable to Anne E. Flanagan was properly mailed but neither received nor endorsed by her. Henry Boch testified that Nutile endorsed the Flanagan check and paid him for goods with it on or about November 6, 1974. From this evidence, a rational juror could reasonably conclude that the Flanagan check was stolen from the mails, that Nutile possessed it and that he knew it was stolen. From these facts, a juror might also conclude that Nutile used the check to buy goods for the Green Apple and thereby attempted to circulate the check as genuine, knowing it was falsely endorsed, with an intent to defraud the United States.
b. Counts III and VII
The evidence as to Counts III and VII is as follows. The stipulation stated that a check was properly mailed to Annie M. Tiso but neither received nor endorsed by her. Anthony Costa testified that Nutile asked him to cash the Tiso check as a favor when Indelicate and Nutile visited his store. During this period, Nutile was, according to many witnesses, the operator of the Green Apple, where he might have cashed the Tiso check himself. This evidence would support a conclusion that the check was stolen from the mails and that Nutile knew it was stolen when he possessed it. This evidence would also support a conclusion thаt Nutile *386 attempted to circulate the Tiso check as genuine, knowing it to have been falsely endorsed, with the intent of defrauding the United States. This district court did not err in denying Nutile’s motion for judgment of acquittal as to Counts III and VII.
c. Counts IV and VIII
Counts IV and VIII, unlike the previous pairs of counts, did not mirror each other perfectly. Count IV alleged that Nutile possessed sixty-seven Treasury checks which had been stolen from the mails, knowing them to have been stolen. Count VIII alleged that Nutile uttered and published as true forty-two of the sixty-seven Treasury checks, knowing them to have been falsely endorsed, with the intent of defrauding the United States. The checks included in Count IV but not included in Count VIII were those negotiated by Anthony Costa. Viewed in the light most favorable to the government, the evidence would support a reasonable determination by a rational juror that Nutile was guilty on both counts beyond a reasonable doubt. The stipulation stated that the sixty-seven checks were properly mailed to the named payees but neither received nor endorsed by them. Each of the checks was subsequently negotiated by one or more of the following stores: the Mini Mart; the Green Apple; and Costa’s store. A number of vendors testified they received several of the enumerated Treasury checks from the Green Apple and that they believed the store was operated by Nutile. Secret Service Agent Artone testified that fingerprints found on two of the checks endorsed “Green Apple” matched those of Nutile. Vendors also testified that Nutile refused to make good on Treasury checks passed by the Green Apple when they bounced. From this evidence, a juror might properly conclude that the checks were stolen from the mails, that Nutile possessed at least two of them and that he knew they were stolen.
The testimony of several vendors established that Nutile either owned or operated the Green Apple and that the others at the store worked for him. Many оf the Treasury checks enumerated in Count VIII were received by suppliers from the Green Apple in payment for goods. Nutile’s fingerprints were found on two of the Treasury checks. Several vendors testified that Nutile refused to make good on Treasury checks passed by the Green- Apple that bounced. A juror could conclude from this evidence that Nu-tile attempted to circulate some of the checks enumerated in Count VIII as genuine, knowing them to have been falsely endorsed, with an intent to defraud the United States.
4. Whether the District Court Erred in Admitting Evidence of Nutile’s Refusal To Pay Back Money to Vendors Who Were Given Fraudulently Endorsed Treasury Checks
Nutile contends it was error to allow two vendors to testify that he refused to make good on Treasury checks that bounced because there was no evidence Nu-tile gave either vendor any Treasury checks. We think that appellant, in addition to misconstruing the facts, urges too narrow a view of the relevancy of the vendors’ testimony. Although only one vendor, Henry Boeh, testified that he saw Nutile endorse a check enumerated in the indictment, there was a considerable amount of circumstantial evidence that could be found to prove that Nutile operated the Green Apple and was responsible for tendering third рarty checks negotiated by the store in the purchase of goods.
The first vendor, Robert Walsh, an employee of West Lynn Creamery, testified that Nutile never made good on a bad check given to the Creamery. Frederick Trecartin, the Creamery route driver responsible for the route on which the Green Apple was located, testified that the checks about which Walsh testified all came from the Green Apple. The second vendor, Dexter Segal, an employee of the Broadway Tobacco and Candy Company, testified that he frequently sold goods to Nutile at the Green Apple, received bad checks in pаyment for some goods and believed Nutile owned the Green Apple. The testimony of
*387
both vendors was relevant to show Nutile’s knowledge that the checks were falsely endorsed, his intent not to pay and, therefore, to defraud the United States, and the existence of a common plan or scheme to pass falsely endorsed Treasury checks through the Green Apple to suppliers of the store. Fed.R.Evid. 404(b);
see United States v. Rajewski,
5. Whether Nutile’s Motion for a New Trial Should Have Been Granted
Motions for a new trial are directed to the broad discretion of the trial judge, who may weigh the evidence and evaluate the credibility of witnesses in considering such a motiоn.
United States v. Leach,
Affirmed.
Notes
. 18 U.S.C. § 1708 provides:
Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or
Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or
Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—
Shall be fined not more than $2,000 or imprisoned not more than five years, or both.
. 18 U.S.C. § 495 provides:
Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, - contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain оr receive from the United States or any officers or agents thereof, any sum of money; or
Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; or
Whoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited—
Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
. 18 U.S.C. § 2 provides:
(a) Whoever, commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
. The term “mail” is clearly more expansive than the term “mail receptacle,” as those terms are used in § 1708. The mail theft statutes must be read in light of the “realities of delivering and receiving mail in a modem urban environment[.]”
Smith v. United States,
. Both appellant Indelicato and the government have discussed the аpplication of the principles of res judicata and collateral estoppel to a multiple count criminal indictment in some detail. We do not reach these issues, since we have found the elements underlying the conspiracy counts and the substantive counts to be factually different. The principles of res judicata and collateral estoppel can apply only when the ultimate facts underlying separate legal premises are the same. See
Sea-Land Services, Inc. v. Gaudet,
. The court instructed the jury on Count I as follows: “Count One of this indictment has been withdrawn from your consideration and so you are not able to concern yourselves with it.”