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January 18, 1978



The opinion of the court was delivered by: CAHN


 Defendant Berrios was convicted by jury on December 15, 1977, of five counts of possessing and passing counterfeit currency. 18 U.S.C. § 472. *fn1" He now moves pursuant to Fed. R. Crim. P. 29(b) and 33 for a directed acquittal or a new trial on the grounds that (1) the evidence was insufficient to establish that he knew the bills he possessed were in fact counterfeit; and (2) the court erred in instructing the jury that it could infer guilty knowledge from false exculpatory statements defendant made to Secret Service agents after his arrest. Although the issues raised by the defendant are substantial, I believe that the weight of authority correctly supports the government's position. Accordingly defendant's motion is denied.


 There is no dispute that the government introduced sufficient evidence for the jury to infer that defendant possessed and passed seventy-two counterfeit $5 bills. The issues raised in defendant's motion relate to the evidence introduced to establish defendant's knowledge that the bills were not genuine. The evidence upon which the government relied to establish guilty knowledge consisted of:

(1) proof that defendant possessed at least seventy-two counterfeit $5 bills;
(2) proof that defendant passed these bills in several lots, mixed together with genuine currency;
(3) proof that defendant possessed collector's items of currency, such as a bill known as a "saddle blanket" and several silver certificates. A statement by defendant explaining this possession gave rise to a possible inference by the jury that defendant considered himself a currency collector;
(4) statements by the defendant made after his arrest to Secret Service agents. When questioned by the agents about where he had obtained the counterfeit currency, defendant first explained that he had received fifteen $5 bills as "change" for a third-party check which he had given to a supplier of defendant's "corner store" in payment of an invoice. After the agents informed defendant that more than fifteen bills had already been traced to him, he agreed that his prior statement was false and explained that he had received the money from an "unknown" Puerto Rican male as payment for a "win" in a numbers lottery.

 The first of defendant's exculpatory statements to the Secret Service agents was clearly false and the second was arguably so. *fn2" There is no dispute that, had defendant chosen to take the stand to present an explanation for his possession of the counterfeit currency, both statements would have been admissible as bearing on his credibility. Since defendant neither took the stand nor attempted to present any evidence on his own behalf, however, he asserts that his credibility was not in issue. In view of these circumstances, defendant contends that neither statement was admissible as affirmative proof of his guilty knowledge. Without these statements, defendant reasons that there is no evidence that he knew the nature of the currency. Alternatively, he claims that as a matter of law the statements alone were insufficient evidence to permit a jury to infer knowledge. Finally, defendant argues that even if the statements were admissible I erred in instructing the jury to consider them in determining the issue of defendant's state of mind.


 My charge to the jury concerning defendant's statements to the Secret Service agents was derived from 1 Devitt and Blackmar, Federal Jury Practice and Instructions § 15.12 at 466-7. The Court of Appeals for the Third Circuit has expressly approved this instruction as well as the admission into evidence of allegedly false exculpatory statements, such as defendant's, on which the instruction is based. In Government of Virgin Islands v. Lovell, 378 F.2d 799, 806 (3d Cir. 1967), cert. denied, 396 U.S. 964, 24 L. Ed. 2d 428, 90 S. Ct. 440 (1969), the court cited II Wigmore, Evidence § 278(2) at 120 (3d ed.), holding that

fabrication [as evidenced by false exculpatory statements] . . . is receivable against [the defendant] as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit.

 This reasoning was applied to affirm a criminal conviction in United States v. Lacey, 459 F.2d 86 (2d Cir. 1972), a case with facts extremely similar to those at issue here. In Lacey, the defendant was charged with possessing and passing a counterfeit $20 bill in a Woolworth store. When asked by the store manager where he had obtained the bill, he responded that he had received it "in his paycheck". He repeated this story to a police officer when he was arrested and a second counterfeit $20 bill was found in his possession. Subsequently, upon interrogation by the Secret Service, defendant recanted his prior explanation, stated that he had found the currency on the street, and insisted that he had never claimed to have received the money in his paycheck. After the jury heard a charge similar to the one I gave in the case at bar, it found that defendant knew that the currency was counterfeit. As in this case, the primary evidence supporting the jury's verdict was the possession and the exculpatory statements. The Court of Appeals affirmed the conviction, holding that "exculpatory statements, when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force." Id. at 89. In so holding, the court rejected each of the claims defendant raises here. See also, Wilson v. United States, 162 U.S. 613, 620-1, 40 ...

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