311 F.

2d 164

UNITED STATES of America, Appellee,

v.
Edward Lester WENZEL, Appellant.
.no. 8612.

United States Court of Appeals Fourth Circuit.

Argued Sept. 26, 1962.
Decided Dec. 7, 1962.
1

Charles W. Bell, Rockville, and Herbert W. Jorgensen, Takoma Park, Md.,

(Edward A. Palamara, Rockville, on brief), for appellant.

Daniel W. Moylan and J. Hardin Marion, III, Asst. U.S. Attys. (Joseph D.
Tydings, U.S. Atty., on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and JOHN

PAUL, District Judge.

JOHN PAUL, District Judge.

An indictment was returned in the District of Maryland containing five counts

in one of which (Count No. 1) eleven persons including the appellant were
charged with conspiracy to violate sections 472 and 473 of Title 18 United
States Code, which relate to the possession, sale, utterance, etc., of counterfeit
money. The remaining counts of the indictment charged various ones of the
conspirators with substantive offenses growing out of their conspiratorial
activities. Appellant was charged in Count 2 with possessing and in Count 3
with transferring and delivering counterfeit money.

When brought to trial six of the alleged conspirators pleaded guilty; one was a
fugitive, and one had been killed prior to the trial. The remaining three,
consisting of the appellant, one Carl Mucherino and one Ernest Clifford
Anglin, Jr., stood trial. Appellant was found guilty under both the conspiracy
and the substantive counts. Mucherino was convicted on the conspiracy count
and on Count 3. Anglin was found not guilty.

On this appeal the appellant appears not to question the force of the evidence

On this appeal the appellant appears not to question the force of the evidence
against him, but charges that the trial court committed error in the following
respects:

(1) In not granting appellant's motion for acquittal, or for a new trial, on the
ground that the indictment charged a single conspiracy whereas multiple
conspiracies were proved.

(2) In admitting in evidence an incomplete confession of appellant .

10

(3) In refusing to interrogate the jury as to whether they had read newspaper
articles relating to the trial.

11

(4) In refusing to give to appellant's counsel parts of reports made by agents of

the U.S. Treasury Department to their superior officers concerning their
investigation of the case.

12

We find no merit in any of these assignments of error. We take them up for

discussion in order:

13

The Conspiracy.

14

The evidence produced by the Government tended to show that on December

6th or 7th, 1960, about $45,000.00 in counterfeit $20.00 Federal Reserve notes
was brought from Newark, N.J., into Maryland by Carl Mucherino or by some
one acting for him and at his direction, and that the counterfeits were delivered
to a man named Agresti.

15

On the afternoon of December 7th Agresti met at his home with a group of his
associates, including the appellant, E. C. Anglin and Charles Eugene Lockett,
at which time the counterfeits were displayed and counted and plans discussed
for passing them. Later on the same day a further meeting was held at the
apartment of Agresti's girl friend at which there were present the same four
persons and also Carl Wenzel, a son of the appellant. At this meeting it was
decided that Lockett should be given a portion of the counterfeit notes and,
accompanied by Carl Wenzel, should embark on a trip for the purpose of
putting them in circulation. When the meeting broke up a package containing
some of the counterfeit notes was given to the appellant by Agresti to be held
by appellant until Agresti should later pick it up. A day or so later this package
was called for by Agresti or by one of his associates.

16

Lockett and Carl Wenzel left the same night, going first to Pittsburgh; thence to
Akron, Ohio, and then on to Cleveland, in all of which communities they
passed some of the money. Carl Wenzel left Lockett in Cleveland and returned
to Maryland. Lockett remained in Cleveland a short while and while there met
one Jerry Powell, who assisted him in passing more of the money in that city.
At this time Lockett also talked with Powell about going to Atlanta, Georgia;
and a few days thereafter, when Lockett had returned to Maryland, Powell
telephoned him and they completed arrangements to meet in Atlanta, which
they did a few days later.

17

After getting rid of some of the spurious notes in Atlanta they went up to
Powell's home-town in North Carolina, where they enlisted the aid of Wayne
Powell, an uncle of Jerry's. The trio then visited various cites in North and
South Carolina, in all of which they uttered some of the counterfeits. During the
time they traveled in an automobile in which Lockett had driven to Atlanta and
which was owned by Agresti.

18

On December 18th appellant was present at another meeting at Agresti's home

attended by several other of the latter's associates. On leaving this meeting
appellant, at Agresti's request, again took a bundle of the counterfeit notes to be
held until called for.

19

On December 22nd Carl Mucherino again appeared in Maryland. The

testimony supports the inference that Mucherino had not until then been paid
for the counterfeits which he had supplied and that he came down for the
purpose of either getting payment or retrieving such of the notes as Agresti still
had. Early in the morning of December 22nd William Joyce, another of the
conspirators, went to appellant's home to pick up the package that Agresti had
entrusted to appellant on the 18th. Joyce told appellant that Agresti had sent
him to get the package and that 'he was sending the money back.' After
receiving the package (which contained $30,000.00 of bogus notes) Joyce,
following instructions from Agresti, proceeded to a previously designated
meeting place where he met Mucherino and delivered the package to him.

20

On the same morning Agresti had a talk with Morris (Sonny) Anglin in which
he induced Anglin to arrange to satisfy the financial demands of Mucherino, in
return for which Anglin was to receive the $30,000.00 of counterfeit notes.
After Agresti had met Mucherino and the latter had agreed to the proposed
arrangement, Agresti, Anglin, Joyce and Mucherino met the same afternoon in
Anglin's apartment at which time Mucherino, after having his demands
satisfied, turned the package of $30,000.00 over to Anglin. On receiving the

counterfeits Anglin called a friend of his, one Roberts, in the city of

Washington and later this same afternoon this pair started passing the notes in a
large suburban shopping center. In the course of this attempt Anglin and
Roberts escaped arrest only by running when a clerk in one of the stores
suspected the character of the notes and called the police.
21

There appears no further passing of any of the counterfeits and the various
members of the conspiracy were apprehended and taken in custody in the
weeks following. Appellant was arrested on February 1, 1961.

22

It is difficult to see upon what appellant bases the argument that the evidence
disclosed a number of conspiracies rather than the single one set out in the
indictment, and neither his brief nor oral argument illuminates this contention.
Reference is made to various meetings or activities in each of which some, but
not all, of the conspirators participated; and the argument apparently is that
each of these represented a separate conspiracy comprising only the individuals
present or participating. There is plainly no merit in this. It is fundamental that
it is not necessary that every act undertaken in carrying out the object of a
conspiracy should be participated in by every member of the conspiring group.
In carrying out the purpose of a conspiracy it will be found that in practically
every case different groups played different parts. To unite them in a single
conspiracy it is only necessary that the activities of each individual or group be
directed toward accomplishing a single criminal objective. See Blumenthal v.
United States, 332 U.S. 639, 68 S.Ct. 248, 92 L.Ed. 154; Jezewski v. United
States, 6 Cir., 13 F.2d 599, 602; Poliafico v. United States, 6 Cir., 237 F.2d 97,
104-105.

23

The pattern of this conspiracy was plain and uncomplicated. It had for its object
the realization of profit by the foisting upon the public of counterfeit money.
To accomplish this the counterfeits had to be obtained and they had to be put in
circulation. Mucherino furnished the money to Agresti and the latter, along
with appellant and other associates, arranged to put it into circulation by
Lockett and the younger Wenzel. It is immaterial that Mucherino or Agresti or
the appellant may not have known the persons that Lockett recruited to help
him in uttering the money, or that these persons were not among the group
which originally planned the illegal enterprise. Poliafico v. United States, supra
p. 104; Hagen v. United States, 9 Cir., 268 F. 344, 346; Marino v. United
States, 9 Cir., 91 F.2d 691, 696; United States v. Lester, 3 Cir., 282 F.2d 750;
Allen v. United States, 7 Cir., 4 F.2d 688, 692; United States v. Babcock, C.C.,
Fed. Cases No. 14,487; Daily v. United States, 9 Cir., 282 F.2d 818, 820;
United States v. Bruno, 2 Cir.,105 F.2d 921; Craig v. United States, 9 Cir., 81
F.2d 816, 822, in which latter case it is said:

24

'actors may drop out, and others drop in; the details of operation may change
from time to time; the members need not know each other, or the part played by
others; a member need not know all the details of the plan or the operations; he
must, however, know the purpose of the conspiracy and agree to become a
party to a plan to effectuate that purpose.'

25

And in Poliafico v. United States, supra, we find:

26

'Knowledge of membership in the conspiracy, the part played by each of the

members, and the division of spoils is immaterial. * * * The addition of new
members to a conspiracy or the withdrawal of old ones from it does not change
the status of the other conspirators.'

27

And in Marino v. United States, supra, it is said (91 F.2d p. 696):

28

'In the situation where a conspiracy has been formed, the joinder thereof by a
new member does not create a new conspiracy, does not change the status of the
other conspirators, * * *.'
The Alleged Interrupted Confession

29

The appellant was arrested at his service station at Hyattsville, Md., on

February 1, 1961, by several agents of the Secret Service. He was taken before
a United States Commissioner at Bethesda, Md., and, being unable to give
bond at that time, was committed to jail. The testimony of the officer having
custody of the appellant was that while at the Commissioner's office the
appellant was shown a statement made by his co-conspirator Lockett-- who,
presumably, had been previously arrested. On reading this statement the
appellant, who had until then made no admissions, said 'you guys have got
everything, there's no sense in me playing games now.'

30

Further testimony was that on the way to the jail the officer and appellant kept
up a conversation in the course of which the appellant related the circumstances
and extent of his involvement in the counterfeiting enterprise. His recital varied
from the facts heretofore recited in no material particular. He did say, however,
that when sometime prior to December, 1960, he had turned over to Agresti
$2,000.00 for investment he did not know the nature of the venture which
Agresti was undertaking, but that when the bogus money was received he felt
that he had to go along with the illegal plan to protect his investment. Any
conversation was ended when the jail was reached and appellant was locked
up. The agent said that he would like to have continued the conversation

further, but that he had other duties to perform that night and he turned
appellant over to the jailer to be locked up. The appellant moved to strike this
testimony on the ground that it involved an interrupted and incomplete
confession.
31

The objection to the introduction of an interrupted or unfinished confession

emanates from the broader principle that when a confession is introduced it is
the defendant's right that all, and not just a part of it, be produced. In 20
Am.Jur. 425, the general rule is thus stated:

32

'When a confession is admissible, the whole of what the accused said upon the
subject at the time of making the confession is admissible and should be taken
together; and if the prosecution fails to prove the whole statement, the accused
is entitled to put in evidence all that was said to and by him at the time which
bears upon the subject of controversy including any exculpatory or self-serving
declarations connected therewith.'

33

As an outgrowth of this and founded on the same reasoning it has been held
improper to admit a confession which, after admitting the commission of the
criminal act, is interrupted thereby preventing the defendant from adding
anything which might explain the reason for his conduct or serve to condone it.
These holdings have no application to the instant case. The only case cited by
appellant, William v. State (1864), 39 Ala. 532, presents a different situation. In
that case a negro slave came to his master and hold him that he had killed
another female slave. When the master asked when and how he had killed the
woman the answer was that he had killed her 'At the gin house' and 'I cut her
throat.' Upon learning this the master stopped him and would not allow him to
make a further statement. A similar case (though not cited by appellant) is State
v. Isaac (1848), 3 La.Ann. 359, where a witness testified that 'the accused came
to him the morning after the affray, and told him that he had killed the slave
Jim and commenced justifying the act, when the witness stopped him and told
him that he intended to deliver him over to be punished.'

34

In both of the cases the courts held the confessions inadmissible on the ground
that the accused had been prevented from adding anything that might have
exculpated him or lessened the gravity of his act. Obviously the rule which
frowns upon incomplete confessions is designed to cover cases where an
accused, after admitting commission of the criminal act, is prevented from
going further and saying anything which might explain or justify his act. No
such situation exists in the instant case. The testimony indicates that the
appellant voluntarily told of his connection with the counterfeiting enterprise,
that he talked freely and said everything he wanted to say, including his

statement that he had invested in the enterprise in ignorance of its nature and
went along with it only because he hoped to recoup his investment. There is no
evidence, and no averment, that he left anything unsaid or that he desired to talk
further or that he would have done so. And it may be said that the contentions
of the appellant appear all the more unwarranted when it is noted that at the
trial of this case the appellant testified in his own behalf at great length, at
which time he utilized to the fullest the opportunity to picture himself as an
innocent victim.
35

The Admonition of the Court Concerning Newspaper Articles

36

The appellant next complains that the Court erred in refusing a request of
appellant to interrogate the jury as to whether they had read newspaper articles
concerning the trial. The assignment of error approaches the trivial and is
entirely without merit.

37

The record indicates that prior to the beginning of this trial the Chief Judge of
the District (Judge Thomsen) had made a talk to members of this jury (and
possibly other prospective jurors) in which he spoke generally of the
responsibilities, duties and conduct of jurors. Among other matters he had
admonished them against reading newspaper accounts of the trial and of talking
to anyone about the case. The jury was chosen and impaneled on the afternoon
of December 4, 1961, and adjournment was then taken until next morning. At
the opening of court next day (Dec. 5) counsel for another of the conspirators
called the Court's attention to an article in the Baltimore Sun of that morning,
stating that he considered it prejudicial and asked the Court to inquire of the
jurors as to whether any of them had read it. The trial judge (Judge Northrop)
posed the question to the jurors and apparently they all answered in the negative
since the transcript shows no further objection or statement from any of the
defendants. Nevertheless, the Court, out of abundant caution and with emphasis
again instructed the jury that they should not read any newspaper articles about
the case or discuss it with anyone. Again when Court adjourned on the
afternoon of December 6th the jury was admonished about reading newspapers
or discussing the case. The same instruction was given the jury at adjournment
on December 7th.

38

On the morning of December 8th, the fifth day of the trial, counsel for
appellant asked the Court to inquire of the jurors whether they had read any
newspaper accounts of the trial. Particular reference was made to an account in
the Baltimore Sun of December 6th. The Court, with an unusual but
commendable display of patience, explained to counsel that the jury had been
instructed at length and repeatedly regarding its duties in this connection and

that in response to a similar inquiry several days before the jurors had given
assurance that they were following these instructions. The Court added that to
inquire each day whether its instructions were being obeyed would indicate a
mistrust of the jury and a reflection upon the integrity of its members. It,
therefore, declined to interrogate the jury further. The episode forms the basis
for this assignment of error, which is without any substance. To start with the
news account of December 6th, which has been exhibited to the Court, cannot
be said to be prejudicial in any sense. It is a rather short account of the opening
day of the trial. It mentions briefly the contents of the opening statement by the
District Attorney. It states that the indictment originally named eleven
conspirators, but that only three were on trial; that six had previously pleaded
guilty, one was a fugitive and one had been killed before the trial. All of these
things were facts and proper items of news. Furthermore no question was raised
as to the propriety of this news article on the day of its publication and it was
not until several days later and after (to use the language of appellant's counsel)
'a crushing amount of evidence' had been presented against the defendants that
counsel advanced this misty charge of prejudice.
The Motion Under the Jencks Act
39

In the course of the trial the Government presented as a witness William R.

Holmes, an agent of the Secret Service, who had participated in the
investigation of this case. In his testimony in chief this witness stated that he
had arrested Morris (Sonny) Anglin on January 10, 1961, in Arlington, Va., and
had found in his possession 389 of the counterfeit notes. He further testified
that on January 4th he had gone to the home where he thought Charles Lockett
lived, but found that Lockett had moved. However, in searching the premises
he discovered a paper showing that Lockett, while in Florida, had wired $15.00
to Jerry Powell in Atlanta. This, aside from identifying the counterfeits, was the
extent of his testimony on direct examination.

40

On cross-examination this witness stated that some days later (presumably after
Lockett had been arrested) he interrogated Lockett and took a statement from
him. He also testified that on completion of his investigation he made a report
on the case to his superiors and that Lockett's statement was filed with that
report. Thereupon, and without more, counsel called upon the District Attorney
'to produce the statement'-- presumably meaning that given by Lockett. The
Court pointed out that Lockett's statement might well contain matter adverse to
other defendants and counsel for Mucherino objected to production of the
statement for the same reason and because such adverse matter would come
before the jury without opportunity for cross-examination of its author.

41

After some discussion and after an examination of Agent Holmes' report the
Court offered to furnish to counsel that part of the report relating to all of the
matters to which Holmes had testified, namely, the arrest of Sonny Anglin, the
finding of counterfeit money in his possession, and the result of the agent's visit
to Lockett's lately-vacated home. Inasmuch as this covered the entire testimony
of this witness it is clear that the Court offered to appellant's counsel all, and
probably more, than he was entitled to. In response to this offer counsel
answered that 'We respectfully decline to accept the reports as presented by
your Honor,' and insisted on the production of the agent's entire report, saying:

42

'My position is this, that we have under the so-called Jenck's right an
unquestioned right to get this man's report, and it's our position that part of his
report is Lockett's statement, and we say we are entitled to every part of
Lockett's statement that pertains to every defendant indicted in this case
regardless of whether it was gone over on direct examination or not.'

43

Counsel misunderstands the purpose and scope of the case of Jencks v. United
States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and of the subsequent
legislation, commonly known as the Jencks Act, which clarified and limited the
application of that case. In the case of Palermo v. United States,360 U.S. 343,
73 S.Ct. 1217, 3 L.Ed.2d 1287, the Supreme Court, speaking through Mr.
Justice Frankfurter, goes into detail as to the purposes of both the case and the
legislation and makes clear that each had the purpose of affording opportunity
for impeachment of a witness.

44

So much of the Jencks Act (18U.S.C.A. 3500) as is pertinent here reads:

45

'(a) In any criminal prosecution brought by the United States, no statement or

report in the possession of the United States which was made by a Government
witness or prospective Government witness (other than the defendant) to an
agent of the Government shall be the subject of subpoena, discovery, or
inspection until said witness has testified on direct examination in the trial of
the case.'

46

Further sections of the Act (b) and (c) provide that there shall be delivered to
the defendant such portions of the statement as 'relates to the subject matter as
to which the witness has testified' and direct the Court to withhold these
portions of the statement which do not relate to the subject matter of the
testimony of the witness.

47

In Palermo v. United States, supra, at page 349, 79 S.Ct. at page 1223, the

Court says in regard to subsection (a) (hereinbefore quoted):

48

'This section manifests the general statutory aim to restrict the use of such
statements to impeachment.'

49

If the report of Agent Holmes had been sought for the purpose of impeaching
him, then the appellant had offered to him everything to which he was entitled,
namely, all portions of the report which related to Holmes' testimony at the
trial-- This he rejected. But the appellant was not trying to discredit Agent
Holmes. What he was seeking was the disclosure of the contents of the
statement Lockett had given to Holmes. In argument to the Court counsel
specifically avowed that this was his purpose. But Lockett was not testifying.
He had never been a witness in the case and no part of his statement had been
disclosed by the witness Holmes. Under such circumstances it is plain that the
Court's action was correct. It is equally clear that disclosure of Lockett's
statement was so eagerly sought by appellant not to impeach the testimony of
any witness, but in order to find out what information Lockett had given the
Government and how far he had involved his fellow conspirators. The statute
was not aimed to aid any such purpose.

50

Another Secret Service Agent, John P. Jones, testified on direct examination to

the circumstances of appellant's arrest and appearance before the United States
Commissioner, and to admissions made by appellant on that occasion. Mr.
Jones stated that he had made a report to his superior which recited this
incident. Again, as in the case of Agent Holmes, the appellant called for the
production of this report and once again the Court delivered to counsel all
portions of the report which related to the matters testified to by Agent Jones.
This time counsel accepted the portion of the report offered and the record does
not indicate that he objected to not receiving more. But whether he did or not, it
is clear that the action of the Court was correct.

51

There being no error in the proceedings of the trial the judgment is

52

Affirmed.