Opinion
No. 53, Docket 22097.
Argued October 3, 1951.
Decided October 30, 1951.
Appellants appeal from judgments of conviction and sentence after a jury trial. The indictment charged them in four counts respectively as follows: (1) receiving counterfeited obligations of the United States, (2) possessing the same, (3) selling the same, all in violation of 18 U.S.C. § 472 and 473, and (4) conspiracy to do so. The trial judge dismissed the first count. Each appellant was sentenced for ten years on count 2, ten years on count 3, and five years on count 4, these sentences to run concurrently.
Myles J. Lane, New York City (Thomas F. Burchill, Jr., Stanley D. Robinson and Robert Rubinger, all of New York City, of counsel) for plaintiff-appellee.
Abraham Lebenkoff, New York City, and John M. Smith, Jr., Philadelphia, Pa., for defendants-appellants.
Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.
We see no merit whatever in any of appellants' contentions:
(a) The evidence amply supports the verdict.
(b) Nothing in United States v. Chiarella, 2 Cir., 187 F.2d 12, avails appellants. For all else aside, if count 2 was not a proper basis of conviction independent of count 3, nevertheless appellants were not hurt since the sentences under counts 2 and 3 are concurrent, and no evidence was received under count 2 which was not admissible under count 3.
Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774.
(c) Even if we assume that appellants did not waive their requests to change their pleas, after all the evidence was in, from not guilty to guilty, the refusal of those requests could work them no harm of which they may complain.
(d) The trial judge did not err in failing to charge on the subject of entrapment, since appellants did not ask for such a charge and the evidence did not justify it.
(e) We think the judge correctly charged concerning conspiracy, and that he adequately differentiated between the portions of his charge separately dealing with conspiracy and aiding and abetting; moreover, appellants neither objected to these parts of the charge nor asked to have them amplified or modified.
Affirmed.