APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Criminal No, 178-73.
Van Dusen, Gibbons and Hunter, Circuit Judges.
This is an appeal from a conviction on all six counts of an indictment for passing and possessing counterfeit bills in violation of 18 U.S.C. § 472.*fn1 The first five counts charged the defendant with passing either one or two $100 counterfeit bills on five separate occasions. The sixth count charged possession of two $100 counterfeit bills with intent to defraud. After the jury returned its verdict of guilty, appellant was sentenced on count I to a six-year term of imprisonment and was fined $2500. However, execution of the sentence of imprisonment was suspended, and appellant was placed on probation for a period of five years. Sentence was also suspended with respect to the remaining five counts, and appellant was placed on a five-year period of probation for each of those counts, the probationary periods to run concurrently with each other and with the probationary term on count I. We reverse in part and affirm in part.
Appellant challenges her conviction on count I as unsupported by the evidence. This count charged that on February 20, 1973, appellant passed two $100 counterfeit bills at Crouse's Dairy Store*fn1a in Somerset, New Jersey. The only witness who testified to this transaction was Fred Frankel, an employee of Crouse's, who stated that on the evening of February 20, a woman in her late forties or early fifties*fn2 purchased some groceries and a $170 money order. The purchases were made with two $100 bills which were proven to be counterfeit. Frankel, however, was unable to make a courtroom identification of the woman who passed the bills, even though his attention was specifically directed to the defendant (N.T. 72-73).
Frankel was then shown five photographs and asked if he had seen them before. He said that he recalled seeing them in March 1973. The direct testimony was as follows:
Q: Do you recall making some response to any question as to whether or not you recognized a person? Were you asked?
A: I was asked a question, "Of these pictures, which one looks most like the person that you think passed these two one hundred dollar bills?"
Q: Yes, exactly. And did you indicate that one of the pictures looked more like the person?
Q: Could you indicate by letter -- this is A, B, C, D and E -- which ...