McLaughlin, Adams and Gibbons, Circuit Judges. Adams, Circuit Judge (concurring). Gibbons, Circuit Judge (dissenting).
GERALD McLAUGHLIN, Circuit Judge.
This appeal centers on the question of whether or not sufficient evidence was presented at trial to sustain appellant's conviction, which was decided solely on Count II of an indictment. That indictment contained three counts pertaining to the utterance of counterfeit $100 bills at two locations situated a very short distance from each other, within a time-span of approximately one-half hour on December 19, 1970. The first count alleged that appellant Finnerty had wilfully, knowingly, and with intent to defraud uttered a counterfeit $100 Federal Reserve Note in violation of 18 U.S.C. § 472. This transaction allegedly took place at the Mertz store through the purchase of some teflon pots which were paid for with a bogus bill. There was approximately $80 in change from this transaction. The trial judge dismissed Count I on the ground that there was insufficient evidence to adequately identify appellant as the one who had passed this bill. The court instructed the jury that evidence from the Mertz store transaction was not to be included when considering the other counts of the indictment. Although the trial judge stated that testimony concerning the Mertz store transaction was not to be considered for "any purpose," not even to show knowledge and intent when examining the second and third counts, obviously he meant to note that evidence pertaining to guilt in Count I, was not to be passed upon by the jury in deciding Counts II and III, since Count I had already been dismissed. The pertinent law is basically that although the government would be precluded in a subsequent trial from introducing evidence that had been the basis of a prior charge on which the defendant had been acquitted, United States v. Pappas, 445 F.2d 1194 (3 Cir. 1971), cert. den. 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368, this doctrine "(res judicata) can have no application to separate counts tried together under a single indictment," United States v. King, 373 F.2d 813, 815 (2 Cir. 1967), cert. den. 389 U.S. 881, 88 S. Ct. 120, 19 L. Ed. 2d 174; United States v. Maybury, 274 F.2d 899 (2 Cir. 1960). Acquittal on Count I did not decide the question of Finnerty's knowledge and intent on Count II. Beyond doubt it is permissible to use such evidence under certain circumstances and these will be discussed later.
Count II dealt with the second transaction which was the attempted purchase of a bathrobe at the Beverly store, a short distance from the Mertz store. This alleged that appellant Finnerty possessed the counterfeit note and went to the Beverly store with intent to wilfully and knowingly defraud by passing a falsely made obligation of the United States in violation of 18 U.S.C. § 472. Count III was dismissed, basically because it was included in the other two counts, and was not a separate offense. It was at the Beverly store that appellant was stalled by the sales people and taken into custody by police officers to whose attention the bogus bill had been brought by suspicious Beverly employees. Admittedly appellant did attempt to pass a $100 bill at said Beverly Shop and it has been determined that this bill was counterfeit. It becomes necessary then to prove only that appellant had knowledge that the bill in his possession was counterfeit, which would demonstrate intent and wilfulness on the part of appellant and confirm his guilt on this count. A necessary element of the crime before us is knowledge on the part of defendant that the note was counterfeit, United States v. Meisch, 370 F.2d 768 at 771 (3 Cir. 1966). Knowledge, in this instance, is to have wilful intent or reckless disregard of the truth inherent in the circumstances. It is also the law that "the mere passing of these counterfeit bills is not sufficient to show knowledge on the part of the defendant that they were counterfeit." United States v. Litberg, 175 F.2d 20, 23 (7 Cir. 1949). However, United States v. Carlson, 359 F.2d 592 (3 Cir. 1966), while conceding this point, soundly held that nevertheless, "the question of guilty knowledge and especially the intent to defraud * * * may be shown by other than direct evidence." Definitely the jury is given the right to scrutinize the entire situation and circumstances at or near the time when the actual passing of the counterfeit notes was being accomplished, to determine the question of knowledge. Therefore anything concerning the passing of counterfeit $100 bills on that day in the particular Scranton area would be relevant to that probing action. More specifically, the fact of the passing of an identical bill, within the same half hour or so and only a few blocks away must be available to the scrutiny of jury (especially since not precluded by United States v. King, supra) as well as all the facts from the Beverly store itself, in order to resolve the problem of knowledge. Evidence concerning the fact that someone passed a counterfeit bill at the Mertz store on the same day, and not mentioning appellant's presence at the Mertz store, is relevant, necessary, and admissible to reach a proper determination under Count II of this indictment.
The undisputed facts are that on December 19, 1971, appellant Finnerty attempted to pass a counterfeit $100 bill at the Beverly store by purchasing a woman's bathrobe. One of the employees had seen Finnerty standing outside the store, thought him suspicious, and so had his $100 bill, which was offered in payment for a bathrobe, examined during a short period while Finnerty was kept in the store under the pretense of waiting for change. In the Beverly store, appellant talked briefly with other store employees. He mentioned to one of them that this robe was for his girl friend as a present; that he had been given the bill as payment for playing in a band; and that he was from New Jersey. A short time earlier on that day at another nearby place, the Mertz store, someone, of a description very similar to that of appellant, passed an exact duplicate and counterfeit $100 bill which even had the same serial number as the one at the Beverly store. The person in passing that one mentioned that he was from New Jersey where he played in a band and that this was the way in which he had obtained the bill. There is no mention of a nervous attitude on the part of the individual at the Mertz store, and it was also stated that appellant showed little nervousness at the Beverly store -- at least not until he had been forced to stand around awaiting his change.
The description of the man in the Mertz store, though found to be inconclusive as to a hundred per cent Mertz identification, did fit appellant Finnerty's appearance on that day to a far more than casual degree. The jeans and jacket, hair style and color, height and body build all were the same or closely similar to that of Finnerty when he was picked up at the Beverly store.
Appellant presents a story which asserts that another individual passed the first counterfeit bill at the Mertz store. Supposedly that person knew that Finnerty was going to buy a robe, had happened to come to Scranton in the middle of winter on a casual ride with appellant, had played in a band, and had supplied appellant with the counterfeit bill as payment for a marijuana sale between Finnerty and this person known only as "Tom".
Appellant cites United States v. Litberg, 175 F.2d 20 (7 Cir. 1949) which relies on the rule that "while the trier of facts is entitled to draw all reasonable inferences from the circumstances in proof, a court of review is charged with the responsibility of determining the reasonableness of such inferences." (Emphasis supplied). It went on to decide, and appellant asserts its applicability in this litigation, that "an inference may not properly be relied upon in support of an essential allegation if an opposite inference may be drawn with equal consistency from the circumstances in proof." (Emphasis supplied). Appellant would have it that this is that sort of "equal inference" situation and argues accordingly.
Appellant's singular testimony in his own behalf does no more than create a tale purporting to offer an equally possible "other inference". Finnerty says that he had known this "Tom" for a couple of months, yet didn't know his last name. He took about a three hour ride from southern New Jersey with "Tom" in the middle of winter, which happened to end up in Scranton, Pa., yet he didn't know where or how to find "Tom" again. He had carried out an illegal business transaction with "Tom" concerning the sale of marijuana but never attempted to discover anything about "Tom's" background. In light of these peculiar circumstances, appellant would have us believe that he did tell "Tom", while riding to Scranton, that he intended to buy a bathrobe for his mother; that while he left the car to obtain the robe, "Tom" went to the Mertz shop and passed another bogus $100 bill and mentioned to that clerk that he later intended to buy a robe for his girl friend. At this Mertz store, however, the passer of the bogus bill also said that he played in a band which is what even appellant thought "Tom" actually did. It seems highly inconsistent that if this "Tom" were attempting to cover up or confuse his identity by mention of the robe, that he would thereafter mention a fact accurate about himself. That is, that he played in a band. Furthermore, Finnerty at the Beverly store, claimed that he played in a band as an explanation of why he possessed the $100 bill, and was there attempting to buy a bathrobe with the bill. The identity of these two factors in the separate transactions, plus the inconsistencies in the far out explanation given for them by Finnerty, casts serious doubt on his testimony. Furthermore, Finnerty's vague description of "Tom" seems to have been well calculated. He described him to have been of average height, weight, and build, and as having longish brown hair and some form of facial hair. This could also be used to fit appellant and numerous other people. Then appellant relies on some very slight variations in the description testimony of all the witnesses involved, as he endeavors to show that there were two different individuals at the two stores. It cannot be denied that the transactions had taken place about one and a half years prior to the trial and did result in some inconsistencies in witness descriptions as might be expected. In light of these vague and contradictory areas of appellant's story, it is impossible to give credence to it as a true account.
The only evidence in support of appellant's proclaimed theory is a statement by a Michael Hunter, appellant's close friend, that he had seen this person known as "Tom" give a $100 bill to Finnerty in payment for some marijuana.
Other factors calling for examination were that appellant acknowledged (Tr. p. 83) that he had pleaded guilty twice in the past to charges of obtaining property by false pretenses. It is sound decisional law that "evidence of prior fraudulent transactions are * * * admissible, not to prove the conspiracy charged, but to show some other material fact such as an absence of mistake, motive, opportunity, intent, preparation, plan or knowledge." United States v. Jones, 425 F.2d 1048, 1051 (9 Cir. 1970), cert. den. 400 U.S. 823, 91 S. Ct. 44, 27 L. Ed. 2d 51. For testimony of prior acts to be acceptable some relevancy must exist between the said prior acts and those charged. Those convictions are relevant in this instance since each offense is based on obtaining something by false pretenses. This was another solid factor for the jury in weighing the inference pertinent to guilt and innocence.
Appellant points out that he possessed neither pots and pans not other money and claims this to be indicative of the fact that he was not the person who passed the $100 bill at the Mertz store. That result is most inconclusive since appellant could easily have disposed of the goods between the two transactions and probably would have. By such actions, he might well have projected the idea at the Beverly store that he had to break the second $100 bill for lack of other funds. These are the elements that the jury had open with regard to appellant's guilty knowledge.
To propose that said evidence was insufficient to allow the jury to decide that Finnerty knew the $100 bill to be counterfeit, or that his story was equally believable and so had met the Litberg standard, would brashly presume upon the gullibility of this court and the jury.
The weight of the overall circumstances gives strong support to the finding of the jury on this appeal. We are satisfied that there was enough legitimate evidence before the jury on the whole case to warrant its finding that Finnerty knew that the second ...