Melvin T. Hansen and Eugene W. Johnson, Appellants, v. United States of America, Appellee, 326 F.2d 152 (9th Cir. 1963)

Appellants Melvin T. Hansen and Eugene W. Johnson, with five others (Arthur D. Jack, Donald V. Farley, Clyde O. Gose, Robert F. MacGill, and Jerry W. Trayer) were charged with conspiring¹  to transport forged securities in interstate commerce.²  Jack, MacGill, and Trayer pleaded guilty. Gose was acquitted. Hansen, Johnson, and Farley were convicted; Farley did not appeal.

The forged securities were money orders drawn on the Idaho First National Bank, Coeur d'Alene, Idaho. They were printed in Reno, Nevada, and passed in Nevada and various other states, including Idaho and Washington.

1. Hansen sold to Jack plates and a negative reproduced from a genuine money order of the Idaho First National Bank furnished to Hansen by Jack for the purpose. Hansen does not deny that the jury could infer knowledge on his part that Jack intended to make counterfeit money orders from the plates and negative and negotiate them,³  but contends that it was sheer speculation for the jury to conclude that Hansen knew the bogus money orders were to move in interstate commerce.

To Hansen's knowledge, Jack came from Reno, Nevada, to get the plates and negative from Hansen in Pacifica, California, and returned to Reno with them. Hansen knew that the bogus money orders were drawn on an Idaho bank. He also knew that if cashed in Nevada, or any state other than Idaho, the forged money orders would necessarily move in interstate commerce to the drawee bank for collection. It was proper for the jury to conclude that Hansen intended the interstate transportation of bogus money orders which was the probable (and actual) consequence of his act of furnishing Jack with the plates and negative.⁴ 

2. Hansen argues that evidence that Jack paid Hansen two hundred dollars on August 9, 1961, was improperly submitted to the jury as proof of the overt act "to effect the object of the conspiracy," required by the statute,⁵  because the incident was not related to the alleged conspiracy and occurred after it had ended.

There was evidence that the two hundred dollar payment was made as part of Jack's effort to secure through Hansen a forged commercial pilot's license for use as identification in cashing the money orders, and that these efforts continued at least until after Jack and Johnson visited Hansen in Pacifica sometime between August 10th and 20th. If this evidence were accepted, the payment was clearly a step in effectuating the continuing conspiratorial purpose to negotiate the bogus money orders. Although there was also testimony that the incident was not related to the conspiracy, and that it occurred after further efforts to negotiate the counterfeit money orders had been abandoned, this contrary evidence simply created a conflict for the jury to resolve.

3. Gose pleaded not guilty and went to trial with appellants and Farley. In the course of the government's presentation, Gose offered himself as a government witness. His offer was accepted, and he testified in detail regarding the alleged conspiracy, but asserted that he participated only to expose the crime. Both appellants contend that it was error to permit Gose to testify, and a mistrial should have been allowed.

A defendant may testify as a witness for the government against his co-defendants.⁶  Perhaps some prejudice results to co-defendants from the very fact that one of their number elects to become a witness against them. But to hold that this prejudice, without more, requires the granting of a mistrial, would simply be to deny the validity of the rule permitting a defendant to become a government witness. In the present case there is no showing of any additional circumstances which might render denial of appellants' motions for mistrial, and for a new trial, an abuse of discretion.⁷ 

4. Gose was permitted to testify, over objection, to statements made to him by Jack implicating Hansen and Johnson in the conspiratorial scheme. In support of their exceptions, appellants rely on statements in Thomas v. United States, 57 F.2d 1039, 1041 (10th Cir. 1932), and Kuhn v. United States, 26 F.2d 463, 464 (9th Cir. 1928), that declarations by one conspirator to another are not competent to establish the connection of a third person with the conspiracy. But this language, in context, is simply a reference to the requirement that each defendant be connected with the alleged conspiracy by evidence independent of the statements of co-conspirators before the latter are admissible against him.⁸  In the present case there was sufficient independent evidence to establish prima facie⁹  the participation of each of the appellants in the conspiracy.¹⁰ 

5. Appellants also argue that Gose's testimony was inadmissible because, by his own account, his participation in the conspiracy was feigned. Gose was not the declarant but only a witness to the declarations. It is the declarant and those sought to be bound by his statements, and not the witness, who must be shown to be co-conspirators to render declarations of one admissible against the others.

6. Commission by a conspirator of an overt act to effect the object of the conspiracy is an essential element of the offense charged.¹¹  The indictment set forth ten such acts, the first of which was that Gose introduced Trayer to Jack at a time and place alleged. Appellants argue that because Gose was acquitted, his act could not constitute the overt act essential to the conviction of the remaining defendants,¹²  and since the jury was instructed that commission of any one of the overt acts alleged was sufficient, reversal is required.

The short answer is that the jury was also instructed that to satisfy the statute the overt act must be committed in furtherance of the object of the conspiracy and by a person who was a party to it.¹³  If the jury acquitted Gose because it concluded he was not a party to the conspiracy and had not acted in furtherance of its purpose, then under the court's instructions the jury could not have relied upon Gose's overt act in convicting appellants.¹⁴ 

7. We have examined appellants' remaining specifications of error, not briefed or argued, and conclude they are without merit.

Affirmed.