United States of America, Plaintiff-appellee, v. Benjamin Chevis Cumber, Defendant-appellant.united States of America, Plaintiff-appellee, v. Byron Carlton Cumber, Defendant-appellant.united States of America, Plaintiff-appellee, v. Byron Carlton Cumber, Defendant-appellant, 894 F.2d 402 (4th Cir. 1990)

Benjamin and Byron Cumber appeal their convictions in the United States District Court for the Eastern District of North Carolina on numerous counts involving the counterfeiting of federal reserve notes. Benjamin Cumber asserts that the district court erred in failing to redact a specific portion of the confession of his brother and codefendant, Byron Cumber. Both appellants maintain that the district court erred in failing to grant their motions for mistrial based upon the government's introduction of "other crimes" evidence, that their convictions were not supported by substantial evidence, and that their convictions ought to be reversed because of a variance between the allegations in the indictment and the proof put forward by the government. Finding each of these contentions to be without merit, we affirm the judgment of the district court.

In November of 1986, Benjamin and Byron Cumber met with Earl Gainey in Whiteville, North Carolina. Gainey requested payment for a motor he had sold to Byron Cumber's nephew, and Byron informed Gainey that he would be paid if he accompanied Benjamin Cumber to Benjamin's house in Whiteville. Gainey complied, and Benjamin Cumber gave him $322, all counterfeit. Benjamin also offered Gainey $6,200 in "funny money" for a car for which Gainey was asking $3,200. The next day, Gainey informed his parole officer of these events, and subsequently related his story to federal authorities.

Secret Service Agent Michael Casper directed the investigation into the Cumbers' counterfeiting operations. The evidence he gathered of appellants' guilt is overwhelming. To begin with, in a recorded telephone conversation Benjamin Cumber offered Gainey $3,600 in "funny money" for a car which Gainey valued at $1,800. Gainey also testified that Benjamin Cumber offered to sell him counterfeit notes for fifty cents on the dollar.

Working on information obtained from one of the Cumbers' co-conspirators, Scott Graham, Agent Casper searched the premises of Budget Appliances, a business operated by appellants' sister, and seized a Canon copying machine. He later traveled to Benjamin Cumber's residence at Route 3, Box 243, Whiteville, where he interviewed appellants' mother, Naomi Cumber. She informed him that the copying machine he had seized from Budget Appliances had been located at Benjamin's residence within the previous one or two months. Agent Casper recovered numerous counterfeit bills in the course of his investigation of the Cumbers, and he testified that these bills were manufactured on a copying machine of the type recovered from Budget Appliances.

Agent Casper ultimately conducted a search of Benjamin Cumber's house and discovered a green sheet of paper, paper slips containing green and black toner or ink particles, and a paper cutter. The material recovered was of the type used in manufacture of the counterfeit bills recovered in the Cumber investigation.

In addition, Graham testified that Byron Cumber had shown him a stack of counterfeit $5 bills and told him that someone else had made them on a copying machine. Byron also informed Graham that he had purchased cartridges and paper for the machine. Furthermore, in early September 1987, Graham and Byron had gone to Benjamin's house, picked up a copying machine, and taken it to Wilmington, North Carolina, for repair. Graham also noted that he had seen both Benjamin and Byron Cumber in possession of counterfeit bills.

Agent Casper also conducted interviews of both Byron and Benjamin Cumber. Byron confessed to passing counterfeit money at change machines, generally at post offices but sometimes at car washes and other places with change machines. Benjamin Cumber informed Agent Casper that he had a list of names of everyone who had counterfeit money.

Appellants were indicted by a grand jury and were convicted after a jury trial of various counterfeiting offenses. Both appellants were convicted on one count of conspiracy to possess with intent to sell counterfeit federal reserve notes, in violation of 18 U.S.C. § 371. Benjamin Cumber was convicted on four counts, and Byron Cumber on two counts, of printing false federal reserve notes, in violation of 18 U.S.C. § 474. Also, Benjamin Cumber was convicted on three counts of transferring and delivering counterfeit federal reserve notes, in violation of 18 U.S.C. § 473. Benjamin Cumber was sentenced to 133 months imprisonment and five years probation. Byron Cumber was sentenced to 52 months imprisonment followed by two years of supervised release. This appeal followed.

Benjamin Cumber argues that the district court erred in failing to redact an explicit reference to him from his brother's confession as is required under Bruton v. United States, 391 U.S. 123 (1983). He contends that the statement in his brother's confession that he "saw new one and five dollar counterfeit Federal Reserve Notes at Route 3, Box 243, Whiteville" constituted an explicit reference to him because it specified his place of residence. Such explicit references, he argues, must always be redacted.

We do not think that Bruton requires redaction of the reference to Benjamin Cumber's residence. Richardson v. Marsh, 481 U.S. 200 (1987), makes clear that although Bruton commands redaction when a codefendant's confession incriminates a defendant on its face, a limiting instruction to the jury is sufficient to protect the defendant's rights when the statement in the confession is "inferential incrimination," that is, evidence which is only incriminating when linked with other evidence introduced at trial. Id. at 208. The Supreme Court stated that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211.

Here, Byron Cumber's confession was redacted to remove any reference by name to Benjamin Cumber. The reference to Benjamin Cumber's residence was not incriminating on its face, but instead was "inferential incrimination" which was only incriminating when linked to other evidence presented at trial such as the copying machine's presence in Benjamin's house and Benjamin's having given counterfeit money to Gainey. Thus, Benjamin Cumber's rights under the Confrontation Clause were adequately protected by the jury instruction that the contents of the confession was evidence only against Byron Cumber, and not against Benjamin Cumber.

Moreover, even if the court had erred in refusing to redact the reference to Benjamin Cumber's residence, we think this error would have been harmless. See United States v. Hasting, 461 U.S. 499 (1983). Careful review of the record at trial, including, for example, Agent Casper's testimony concerning the discovery of counterfeiting materials in Benjamin Cumber's house and the testimony of both Gainey and Graham, reveals the clear evidence of Benjamin Cumber's guilt. The additional reference to the presence of counterfeit bills in Benjamin's house was cumulative evidence, and its admission was plainly harmless.

Appellants next contend that the district court committed reversible error by permitting the prosecution to introduce evidence of other crimes committed by defendants. Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Appellants maintain that on several different occasions during trial the government was impermissibly permitted to introduce "other crimes" evidence. We will address each occasion in turn.

First, appellants complain about references in the recorded telephone conversation between Gainey and Benjamin Cumber to the possibility of Benjamin providing counterfeit money to a drug dealer for the purchase of drugs, and to the fact that Byron Cumber would "get out" (presumably, of prison) the next month. We think it clear that the trial judge acted within his discretion in admitting this evidence. See United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). The reference to Benjamin Cumber providing counterfeit money to the drug dealer tended to prove that he intended to distribute counterfeit money. Although the reference to Byron getting out of jail may have been unnecessary, appellants shoulder part of the responsibility for its admission. Appellants listened to the tape ahead of time, and did not object to the statements about Byron being released from jail. Instead, they waited until after the tape was played at trial and then moved for a mistrial. In light of appellants' failure to object to the statements in advance when they had ample opportunity, we cannot say that the trial judge's refusal to declare a mistrial constituted reversible error.

Second, appellants allege that the district court erred in admitting testimony by Gainey that Byron Cumber threatened him in an attempt to prevent him from testifying. Such testimony is clearly admissible to show consciousness of guilt. United States v. Mendez-Ortiz, 810 F.2d 76, 78-79 (6th Cir. 1986).

Third, appellants complain about testimony by Agent Casper which they contend signalled to the jury that Byron Cumber had been in jail. Agent Casper stated:

If you want me to tell you where your client was while it happened, I'll tell you why he didn't but you're going to object and the judge is going to get upset, so I am not going to, I don't want to, I don't want to tell you why I did not make him a part of the investigation but that is the reason I didn't make him a part of the investigation.

We do not think that the district judge was in error in refusing to declare a mistrial because of this statement. Agent Casper was responding to a question which at least arguably called for a reference to Byron Cumber's whereabouts. The evasive answer that he provided demonstrates that Agent Casper was making every effort to avoid stating that Byron was in prison. The district judge was well within his discretion in refusing to declare a mistrial on account of this oblique response.

Fourth, appellants complain that in the prosecution's cross-examination of a defense witness, it asked the witness whether a lawsuit to which Byron Cumber had been a party involved his arrest on a stolen goods charge. However, appellants opened the door to this line of inquiry on direct examination. Appellants had elicited testimony from the witness on direct examination that the copying machine had been used by Byron Cumber for the legitimate purpose of preparing paperwork for a lawsuit in which Byron had been involved. The trial court was within its discretion in permitting the prosecution to question the witness concerning the general subject matter of this lawsuit. "A full cross-examination of a witness upon the subjects of his examination in chief is the right, not the mere privilege of the party against whom he is called." United States v. Caudle, 606 F.2d 451, 457 (4th Cir. 1979).

Fifth, appellants complain that the prosecution introduced evidence that Byron Cumber passed counterfeit bills in a change machine in Winston-Salem, North Carolina, when the indictment never alleged that he performed any illegal acts in Winston-Salem. There is no doubt that such evidence is admissible. It clearly tends to prove a common plan, and also demonstrates that appellants acted with intent in passing counterfeit money elsewhere.

Finally, appellants assert that their convictions were not supported by substantial evidence, and that there was a fatal variance between the indictment and the evidence presented at trial. These arguments lack merit. As we have already noted, our careful review of the record reveals that the evidence of appellants' guilt is overwhelming. In addition, we think it clear that the jury was fully justified in finding that appellants' behavior was not an amalgam of unrelated events as appellants contend, but rather a single, integrated conspiracy as was alleged in the indictment. "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." United States v. Wenzel, 311 F.2d 164, 167 (4th Cir. 1962). Evidence of this simple pattern was plainly presented here.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.