Appendix — District of Columbia ex rel. Capital Lighting & Supply Inc. v. Merando Inc.

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APPENDIX A

Due Process Clause, Fifth Amendment to the United

States Constitution:

* * * [Njor shall any person * * * be deprived of life,

liberty, or property, without due process of law * * *.

Assistance-of-Counsel Prov ion, Sixth Amendment to the

United States Constitution:

* at stgabiall Tens

In all criminal prosecutions, the accused shall enjoy

the right * * * to have the assistance of counsel for his

defense.

§ 17b, 65 Stat. 717, 18 U.S.C.A. § 2 (1964 Cum. Supp.):

(a) Whoever commits an offenre against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an offense

against the United States, is punishable as a principal.

18 U.S.C. § 11:

The term ‘‘foreign government’’, as used in this title,

includes any government, faction, or body of insurgents

within a country with which the United States is at peace,

irrespective of recognition by the United States.

18 U.S.C. § 371:

if two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both. * * *

> 2 ROAM LLORES LP OE G6 oc PS *

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18 U.S.C. § 478:

Whoever, within the United States, with intent to de-

fraud, falsely makes, alters, forges, or counterfeits any

bond, certificate, obligation, or other security of any foreign

government, purporting to be or in imitation of any such

security issued under the authority of such foreign govern-

ment, or any treasury note, bill, or promise to pay, lawfully

issued by such foreigr government and intended to circulate

as money, shall be fined not more than $5,000 or imprisoned

not more than five years, or both.

18 U.S.C. § 479:

Whoever, within the United States, knowingly and with

intent to defraud, utters, passes, or puts off, in payment or

negotiation, any false, forged, or counterfeited bond, cer-

tificate, obligation, security, treasury note, bill, or promise

to pay, mentioned in section 478 of this title, whether or

not the same was made, altered, forged, or counterfeited

within the United States, shall be fined not more than $3,000

or imprisoned not more than three years, or both.

18 U.S.C. § 480:

Whoever, within the United States, knowingly and with

intent to defraud, possesses or delivers any false, forged,

or counterfeit bond, certificate, obligation, security, treasury

note, bill, promise to pay, bank note, or bill issued by a

bank or corporation of any foreign country, shall be fined

not more than $1,000 or imprisoned not more than one year,

or both.

18 U.S.C. § 481:

Whoever, within the United States except by lawful au-

thority, controls, holds, or possesses any plate, stone, or

other thing, or any part thereof, from which has been

printed or may be printed any counterfeit note, bond, obli-

gation, or other security, in whole or in part, of any foreign

government, bank, or corporation, or uses such plate, stone,

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or other thi-g, or knowingly permits or suffers the same

to be used in counterfeiting such foreign obligations, or any

part thereof; or

Whoever, except by lawful authority, makes or engraves

any plate, stone, or other thing in the likeness or similitude

of any plate, stone, or other thing designated for the print-

ing of the genuine issues of the obligations of any foreign

government, bank, or corporation; or

Whoever, except by lawful authority, prints, photographs,

or makes, executes, or sells any engraving, photograph,

print, or impression in the likeness of any genuine note,

bond, obligation, or other security, or any part thereof, of

any foreign government, bank, or corporation; or

Whoever brings into the United States any counterfeit

plate, stone, or other thing, engraving, photograph, print,

or other impressions of the notes, bonds, obligations, or

other securities of any foreign government, bank, or cor-

poration—

Shall be fined not more than $5,000 or imprisoned not

more than five years, or both.

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 324—September Term, 1964.

(Argued January 21, 1965 Decided February 26, 1965.)

Docket No. 29342

Unrrep States or America, Appellee,

v.

Witu1am Gros and Mario Garcia Konty, Appellants.

Before: Moors, Frrexpity and MarsHatu, Circuit Judges.

Appeal from a judgment of conviction after a jury trial

befcre Edward Weinfeld, Judge, for violation of 18

U.S. C. A. §§ 371, 481 relating to conspiracy and counter-

feiting of foreign currency.

Affirmed.

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Cuarues J. Fannina, Assistant United States Attorney

(Robert M. Morgenthau, United States Attorney for

the Southern District of New York, New York, N. Y.,

Charles A. Stillman, Assistant United States Attorney,

of counsel), for Appellee.

James A. CarpreL_o, New York, N. Y. (Dodd, Cardiello &

Blair, on the brief, Robert Morris, of counsel), for |

Appellant.

Per CurRiaM :

Defendants William Grosh, an American, and Mario

Garcia Kohly, a Cuban national, were indicted on one

count for conspiring to violate 18 U. S. C. A. §§ 478, 479,

480 and 481, relating to the counterfeiting of foreign cur-

rency, and on one count for knowingly and without lawful

authority possessing plates from which might be printed

counterfeit notes of a foreign government, in violation of

‘‘Title 18, United Statcs Code, Sections 481 and 2.’’ After

a jury trial before Judge Weinfeld, defenéents were con-

victed on both counts and sentenced to concurrent terms

of one year’s imprisonment on each count.

Kohly claims to have been active in efforts to overthrow

the incumbent Castro regime in Cuba, the government

recognized by the United States. Grosh was his associate.

They were engaged in a scheme to print counterfeit Cuban

peso notes, some of which would be sold to Cuban exiles in

this country, the rest to be dropped from the air into Cuba

in an effort to undermine the Cuban economy. Arms for a

potential invasion were to be purchased with the proceeds

remaining from the sales to exiles after deduction of an

amount adequate to cover costs and a profit to defendants

and their accomplices. Needless to say, the Castro govern-

ment had not authorized this operation ; nor had the United

States. Once the plates had been prepared, a printer would

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be needed. Defendants made the now unfortunate choice

of selecting as their printer, Harris Martin, a Secret Serv-

ice undercover agent, who was promised a nice profit to

make up for his lack of the patriotic zeal which they claim

motivated them. Defendants were arrested while passing

the plates to Martin in the lobby of the Waldorf-Astoria.

Certainly no defense counsel would be likely to interpret

the citation of the well-known section 2 as meaning section

482. Even if he did, however, there could be no prejudice

because section 2 (the general aiding and abetting section)

need not even be charged, see Nye ¢ Nissen v. United States,

168 F. 2d 846, 855 (9th Cir. 1948), aff’d, 336 U. S. 613

(1949) ; cf. United States v. Russo, 284 F. 2d 539, 540 n. 1

(2d Cir. 1960). Preparation to meet any charges arising

under section 482 (relating to counterfeiting bank notes or

bills of a bank or corporation of a-foreign country) as well

as section 481 could not have been prejudicial. It might be

another story if, thinking ‘‘2’’ meant only section 2, defend-

ants were actually tried for violation of section 482. But

they were not.

Similarly lacking in merit is the attack on Judge Wein-

feld’s conduct of the trial. All of the claims relate to

matters within the trial jadge’s broad discretion, and there

has been no showing that it was abused.

Defendants’ remaining claim is that they did not ‘‘with-

out lawful authority ... [possess a plate] from which .. .

may be printed any counterfeit note ... of any foreign gov-

ernment ...,’’ 18 U.S. C. A. § 481, because they possessed

the plates and would have been printing notes with the

authority of a Cuban government-in-exile, albeit a self-

constituted one. In disposing of this claim we need not

stray far from the text of the statute. It is clear that the

plates were to be used to print notes purporting to be the

currency of the present Cuban government. Else, how could

the notes accomplish their subversive function and how

could they be salable? That government had not given its

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authority. Where there is a recognized foreign govern-

ment—surely included in ‘‘any foreign government’’—

whose notes are intended to be printed without that gov-

ernment’s authority, we cannot doubt that the clear mean-

ing of the statute has been met. Whether or not the present

Cuban government is approved of, the purposes of the

statute are served by providing this measure of protection

for Cuban currency, just as with any other country’s cur-

rency. As stated in United States v. Arjona, 120 U. S. 479

(1887) with respect to the predecessor of section 481, in

recognition of the reciprocal obligations of international

relations and intercourse among nations

it was incumbent on the United States as a nation

to use due diligence to prevent any injury to another

nation or its people by counterfeiting its money, or its

public or quast public securities. This statute was

enacted as a means to thatend... Id. at 488.

Moreover, ‘‘if such securities can be counterfeited here with

impunity, our own people may be made to suffer...’’ 7d.

at 487-88.

Affirmed.

Judgment

Appeal from the United States District Court for the

Southern District of New York.

This cause came on tc be heard on the transcript of rec-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

On ConsmERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed.

A. Dantet Fusaro

Clerk

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