MOORE v. UNITED STATES

MEHAFFY, Circuit Judge.

Charles Myron Moore, appellant-defendant, was tried to a jury and convicted on three counts of passing counterfeit money with intent to defraud in violation of 18 U.S.C.A. § 472. We affirm.

The sole question raised by appellant's brief is the sufficiency of the evidence to sustain the convictions. Defendant at the conclusion of the Government's evidence moved for a judgment of acquittal. This motion was made orally and counsel concluded by saying "and the Defendant requests permission to submit a written motion to the same effect at the close of all of this case." The court responded as follows: "Permission is so granted to submit a written motion. Ruling will be reserved on this motion." Defendant did not press for a ruling at the time the motion was made, and from the language used, the court would have been warranted in interpreting the statement as defense counsel's intention to immediately offer evidence on defendant's behalf. This is what he did, but nevertheless on appeal he takes the position that Fed.R.Crim.P. 29(a) is mandatory in requiring a ruling at this stage of the proceeding; and that failure to then rule forced defendant to adduce evidence which supplied additional incriminating testimony. There is respectable authority, however, holding that there is no prejudicial error in the trial court's reserving ruling on defendant's motion for judgment at the close of the Government's case where evidence at the time the motion was made suffices to present a jury question as to defendant's guilt. United States v. Godel, 361 F.2d 21 (4th Cir. 1966); Weathers v. United States, 322 F.2d 566 (9th Cir. 1963). Additionally, the Second Circuit has recently ruled in United States v. Rosengarten, 357 F.2d 263, 266 (2nd Cir. 1966):

Aside from any waiver question, there could not be any prejudicial error if at the time the motion was made the Government had produced sufficient evidence to justify submission of the case to the jury. We will, therefore, initially summarize only the Government's evidence which, standing alone, in our opinion, is sufficient to sustain the jury's findings of guilt.

On the afternoon of October 22, 1965 between 4:30 and 5:30 p. m., defendant entered the Silhouette Lounge and ordered a scotch and water, paying for it with a ten dollar counterfeit bill. Mrs. Ambrose, who with her husband operated the Silhouette, gave defendant change for the bill. After defendant's departure, Mrs. Ambrose, being short of change, sent her fifteen year old son to a nearby supermarket to obtain change for the bill received from the defendant. The clerk at the supermarket refused to change the bill, telling the boy it was counterfeit. The boy then returned the counterfeit bill to his mother.

Defendant was seen to leave the Silhouette Lounge and walk across the street to Maylock's Delicatessen where he purchased a loaf of bread, a quart of milk and a Hostess "twinkle." He paid for these items with a ten dollar bill which he laid on the counter, face up, while Mrs. Maylock sacked the groceries. Mrs. Maylock gave defendant change but as she put the bill in the cash register she noticed it was dark green on the back. She asked another customer to note the direction of the defendant and turned the bill over to her husband for examination.

A week later on the evening of October 29, 1965, some time between 10:00 and 10:30 p. m., defendant entered the Krueger Bar in University City. As the bar was crowded, defendant stood behind the customers sitting on the stools and consumed two drinks of scotch and laid a counterfeit bill on the bar. The bartender put the change on the bar, which defendant retrieved and departed. The bartender noticed and testified that the bill had "a bad look and it just didn't feel like regular money," and he gave it to a police officer around 11:00 o'clock that night.

A description of the defendant and an arrest order had been put on teletype on the evening of October 22, 1965, but he was not apprehended until the latter part of January, 1966. Between the time of making the purchases with which he was charged and trial date, defendant had changed the color of his hair.

The three counterfeit bills passed by defendant were identical as to serial number, plate number and denomination. In each instance, defendant passed the bills for small purchases of about one dollar. The defects in the bills were evidently obvious, as Mrs. Maylock immediately noticed that the coloring on the bill was bad and both the bartender at the Krueger Bar and the grocery clerk immediately detected the spuriousness of the bills. In addition to this evidence, during cross-examination and in response to defense counsel's question whether defendant was charged with passing any other bills, a secret service agent replied that defendant was associated with but not charged with passing two other bills at the Pancake House and the Valley Farm at about the same time in October.

The District Court must, as do we, in passing on this issue, view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the Government. Coon v. United States, 360 F.2d 550 (8th Cir. 1966).1

In Rood v. United States, 340 F.2d 506 (8th Cir. 1965), cert. denied, 381 U.S. 906, 85 S.Ct. 1452, 14 L.Ed.2d 287 (1965), this court sustained a conviction for violation of this statute where it was shown that the defendant passed two spurious twenty dollar bills within a period of twenty-four hours. We think the evidence in the instant case is stronger than that in Rood.2 As observed by counsel for defendant, each of such cases must stand on its own peculiar facts. The Government's case clearly presented a jury question as to defendant's guilt. If defendant had insisted on a ruling on his motion at the close of the Government's case, the trial court would have been compelled to reject the motion. It follows that no prejudicial error resulted from the trial court's action in taking the motion under advisement.

We have referred only to the evidence in the Government's case adduced prior to defendant's motion for judgment of acquittal. At trial defendant took the stand and admitted that he handled a lot of cash. He did not deny passing the counterfeit bills for which he was charged, but he did deny knowledge they were counterfeit. Probably the most damaging statement defendant made in testimony was his account of the Pancake House incident. There he was challenged for passing an allegedly spurious bill, whereupon he tore the bill in half and made restitution with a genuine bill. This is hardly the reaction to be expected from one innocent of knowledge that a bill he passed was counterfeit.

Although not raised at the trial below or in briefs, defendant, for the first time, in oral argument urgently contended that the court erred in giving the following instruction:

Preliminary, we note defendant failed to comply with Fed.R.Crim.P. 30, requiring an objection to the instruction. Compliance with this rule would have afforded the trial court an opportunity to either omit the instruction or change its language in such a fashion as to make it innocuous. Recognizing this, counsel insists that plain error exists affecting substantial rights which we can recognize under Fed.R.Crim.P. 52 (b).

This and other courts have criticized giving of this or a similar instruction in certain cases. We held in Imholte v. United States, 226 F.2d 585, 591 (8th Cir. 1955), that it is better not to give the instruction in a case where intent is not inherent in the act itself but its inclusion in a charge does not constitute prejudicial error where "* * * the charge considered as a whole correctly stated the law with sufficient clarity as not to be misleading." Accord, Sherwin v. United States, 320 F.2d 137 (9th Cir. 1963), cert. denied, 375 U.S. 964, 84 S.Ct. 481, 11 L.Ed.2d 420 (1964).

In Mann v. United States, 319 F.2d 404 (5th Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964), the court held the giving of this instruction was plain error requiring a reversal in an income tax conviction.

In United States v. Releford, 352 F.2d 36 (6th Cir. 1965), cert. denied, 382 U.S. 984, 86 S.Ct. 562, 15 L.Ed.2d 473 (1966), the court rejected the contention defendant makes here, reasoning that giving of the instruction was not reversible error where the proof of guilt was strong.3

In our opinion, the evidence in this case is strong and convincing. Defendant did not deny passing the counterfeit bills and the pattern used in passing them by one who handled a lot of money, as defendant admittedly did, amounts to strengthful proof of scienter.

The trial court clearly and plainly instructed the jury on defendant's presumption of innocence, the burden resting on the Government to prove defendant's guilt beyond a reasonable doubt, and specifically upon the two essential elements required in this type case, being the act of passing a counterfeit obligation and the doing so with intent to defraud. The court cautioned the jury in addition to defining the element of intent that, in order to find defendant guilty, they must find and believe that his acts were intentionally and knowingly done. Furthermore, the jury was admonished that it was their sworn duty to acquit defendant unless convinced beyond a reasonable doubt that defendant knew of the counterfeit character of the bills.4

Upon consideration of the charge as a whole, it would be unrealistic for us to assume that the jury was misled, confused or in any manner swayed or influenced by the giving of the instruction. Additionally, we are mindful of Fed.R.Crim.P. 52(a). In discussing this rule in our recent case of Gresham v. United States, 374 F.2d 389 (8th Cir. March 30, 1967), Judge Matthes aptly observed:

As has often been stated, a defendant is entitled to a fair trial but not a perfect trial. We are convinced on the record here that the defendant received a fair trial, free of prejudicial error, and the judgment is affirmed.