United States v. Charles Henry Carlson and Dominick Bonomo. Dominick Bonomo, 359 F.2d 592, 3rd Cir. (1966)

359 F.
2d 592
UNITED STATES of America

v.
Charles Henry CARLSON and Dominick Bonomo.
Dominick Bonomo, Appellant.
No. 15335.
United States Court of Appeals Third Circuit.

Argued Dec. 3, 1965.
Decided April 28, 1966.
Levan Gordon, Philadelphia, Pa., for appellant.

Jerome D. Schwitzer, Asst. U.S. Atty., Newark, N.J. (David M. Satz, Jr.,
U.S. Atty., Newark, N.J., Barry D. Maurer, Asst. U.S. Atty., on the brief),
for appellee.
Before HASTIE, GANEY and FREEDMAN, Circuit Judges.
GANEY, Circuit Judge.
Appellant, Dominick Bonomo, along with one Charles Henry Carlson, was
indicted on September 16, 1964, in a threecount indictment. Count I charged
that on or about July 15, 1964, Carlson aided and abetted by appellant, did pass
and utter upon one Donald Orrick a counterfeit ten dollar bill, knowing it to
have been falsely made and counterfeited, in violation of 18 U.S.C.A. 472 and
2. Count II was similar to the first except that it accused Carlson with
attempting to pass and utter a counterfeit ten dollar bill upon one Francis Rork.
Count III charged appellant alone with the possession of six counterfeit ten
dollar bills in violation of 18 U.S.C.A. 472. Prior to trial both Carlson and
appellant filed motion to suppress the eight counterfeit bills. The basis for
appellant's motion was that no warrant had been issued for his arrest at the time
he was apprehended, and he had not committed, nor was committing, any crime
at the time of his arrest. Both motions were denied by the District Court on
January 8, 1965.
After a trial, during which appellant took no exceptions to the trial judge's
charge, a jury found Carlson and appellant guilty on Counts I and II. Before the
case had gone to the jury, the trial court dismissed Count III because of a fatal
variance, in that the serial numbers of the six counterfeit bills in that count did
not correspond with the serial numbers on the bills introduced into evidence.1
Appellant did not file motions for arrest of judgment, for judgment of acquittal
or for a new trial even though he had made timely motions for judgment of
acquittal at the end of the Government's case and all the evidence.
Appellant complains that he was not arraigned by the local authorities without
unnecessary delay before the nearest available magistrate as required by New
Jersey Criminal Rule 3:2-3(a), 2 and that he was denied the right of counsel.
Assuming, for the purpose of argument, that his complaints are true, no
federally protected rights of his were violated. There has been no showing that
he was prejudiced in the delay in bringing him before a magistrate for under
such circumstances it is no concern of the Federal courts if the local authorities
did not abide by the State criminal rules. The rule of McNabb v. United States,
318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States,
354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), is not of constitutional
dimension. It is applicable only to federal law enforcement officers. See United
States ex rel. Smith v. State of New Jersey, 322 F.2d 810, 811 (C.A.3, 1963).
As to his complaint that he was not advised of his right to remain silent nor of
his right to counsel at the time of his arrest, the record shows, prior to trial, the
appellant made no incriminating statement to law enforcement officers, Federal
or local, and he was represented by counsel of his choice at arraignment and
assigned counsel at trial. When appellant took the stand at his trial, he was
asked on cross-examination whether the local police authorities had requested
him to make a statement with regard to the circumstances surrounding the
counterfeit bills. His answer was: 'Well, they asked me if I had anything to do
with this and I told them no.' That was the sum of the evidence about any prior
incriminating statements, made by appellant, at the trial. He cannot validly
complain of the lack of counsel. See Commonwealth of Pennsylvania ex rel.
Craig v. Maroney, 348 F.2d 22, 28, n. 9 (C.A.3, 1965).
Appellant's main point on this appeal is that the evidence adduced at the trial
was insufficient to convict him of aiding and abetting Carlson under Counts I
and II of the indictment. Before ruling on this point, we must answer his claim
that evidence of the six bills in the white envelopes should have been
suppressed prior to trial in accordance with his motion. We have no doubt that
'there is a reasonable possibility that the evidence complained of might have
contributed to the conviction.' Fahy v. State of Connecticut, 375 U.S. 85, 86-87,
84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Without such evidence we do not see
how the jury could have convicted him under the first two counts. At the trial
appellant denied ever having in his possession or seeing the six bills prior to his
arrest. This testimony, however, does not prevent him from requesting that
evidence of the bills be suppressed. Jones v. United States, 362 U.S. 257, 261264, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).
6
Appellant was arrested by local authorities without a warrant. The Fourth

Amendment regarding search and seizure applies to the states. Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); Ker v.
State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The
search of a person and the seizure of incriminating evidence may be made as
the result of a lawful arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct.
1098, 91 L.Ed. 1399 (1947). The evidence obtained thereby, if not excludable
by other rules of evidence, is admissible in evidence at the trial of that person.
The lawfulness of an arrest must be based upon probable cause. 'Probable cause
exists where 'the facts and circumstances within their (the officers') knowledge
and of which they had reasonably trustworthy information (are) sufficient in
themselves to warrant a man of reasonable caution in the belief that' an offense
had been committed or is being committed.' Brinegar v. United States, 338 U.S.
160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949), quoting Carroll
v. United States,267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.
Also see Ker v. State of California, supra, at 34-35, 83 S.Ct. 1623. 'The
reasonableness of a search is in the first instance a substantive determination to
be made by the trial court from the facts and circumstances of the case and in
the light of the 'fundamental criteria' laid down by the Fourth Amendment and
in opinions of this Court applying that Amendment.' Ker v. State of California,
supra, at 33, 83 S.Ct. at 1630.
We think the facts, which will be set forth later, proved at the trial, support the
ruling of the District Court denying the motion to suppress, and that the six
bills were admissible as evidence against appellant.
At the trial, evidence to show the existence of the following facts was
produced: On July 15, 1964, Orrick was vending hot dogs from a truck on the
west side of Westside Avenue near Armstrong Avenue in Jersey City, New
Jersey. At about 11:00 a.m., Carlson, accompanied by appellant, approached
the truck and asked Orrick for three hot dogs which he prepared and handed to
Carlson. The latter, while appellant was standing behind him, handed Orrick a
counterfeit ten dollar bill and received $9.40 in change. Immediately after
Carlson and appellant walked away and were out of sight, Orrick examined the
ten dollar bill, and upon his realizing that it was not genuine, went to the tavern
across the avenue from where he telephoned the Jersey City police.
Approximately 10-15 minutes later, Sergeant Raymond Dillman accompanied

by another police officer patrolling the Fifth Precinct appeared in a police car
equipped with a radio transmitter and receiver. Orrick turned the counterfeit ten
dollar bill over to the sergeant and furnished him with both the facts
surrounding its receipt and a description of Carlson and the appellant. Sergeant
Dillman thereupon, between 11:00 and 11:30 a.m., broadcast an alarm over the
police radio system requesting the police to be on the lookout and to apprehend
two men who had been accused of passing a counterfeit ten dollar bill at the hot
dog stand near Westside and Armstrong Avenues. As part of the alarm, he gave
a brief description of the two men and their wearing apparel.
9
While they were patrolling the west end of the Fourth Precinct of Jersey City
by car, Detective-Sergeant Arthur R. Kelly and Detective Ambrose E.
Artaserse heard the alarm from the car's radio receiver about the two men
wanted for passing counterfeit money. Around noontime, Dillman turned the
bogus ten dollar bill he had received from Orrick over to Lieutenant Daniel
Carroll, the officer then in charge of the Fifth Precinct police station. Before
doing so, Dillman affixed his initials and the day's date to the face of the bill
and two x's on the back.
10
About 12:50 p.m., the two detectives saw Carlson and appellant walking
together in a northerly direction on the east side of Westside Avenue at Clinton
Avenue. They fitted the description given over the police radio system. The
detectives followed them for about five blocks, but always stayed one block
behind them. When the two suspects reached Bentley Avenue, they stopped,
appeared to have a brief conversation, and then separated. Carlson crossed
Westside Avenue and walked in a northerly direction on the east side of the
Avenue, while appellant continued in the same direction and stayed abreast of
Carlson.
11
When the two suspects separated, Artaserse got out of the car and followed
appellant afoot on the east side of the Avenue. Kelly, in the meantime, drove
his car past appellant and turned left into Belmont Avenue, parked fifty feet
from the corner, got out of the car and waited for Carlson to appear. As Kelly
had anticipated, Carlson headed for the mobile hot dog vendor's stand operated
by Rork and located on the east side of Westside near Belmont Avenue at the
entrance to Lincoln Park. Kelly thereupon headed from his vantage point for
the same place.
12
On arriving at the stand, Carlson ordered two hot dogs which Rork promptly
prepared and placed on the side of the stand near Carlson. While the latter was
handing a counterfeit ten dollar bill (which did not appear genuine to Kelly) to
Rork in payment for the food, Kelly apprehended Carlson and seized the bill
before it got into the hands of Rork. With Carlson offering no resistance and
under arrest, Kelly yelled over to Artaserse who was still following appellant
on the east side of Westside Avenue: 'Andy, I've got him. Get him.' At the time
appellant was about 150-170 feet away from the hot dog stand, and Artaserse
was 10-15 feet behind appellant.
13
Artaserse then approached appellant, identified himself as a police officer and

asked appellant for some identification, which he produced. Appellant then
asked the officer to show his police badge again, and the latter obliged. While
appellant was looking at the badge, the officer observed a white envelope in his
hand and asked him what it was. In response, appellant struck the officer in the
stomach with his elbow and then turned to move away. The officer put a bear
hug on him, and during the ensuing scuffle, he saw the white envelope leave
appellant's hand. After being kicked in the shin by appellant, the officer drew
his service revolver from the holster and pointing it at him, asked appellant
whether he wanted to get shot or submit to arrest. After putting handcuffs on
him, the officer gave a quick glance on the ground for the white envelope, but
could not see it. He, thinking it more prudent to get appellant to the police
station than waste time looking for the envelope, took appellant to where Kelly
was parked in his car with Carlson handcuffed in the back seat. Kelly then
drove all three to the Fourth Precinct police station. The trip consumed about
ten minutes.
14
Upon being informed by Artaserse about appellant's discarding of the white

envelope, Kelly immediately ordered Artaserse to return to the scene where
appellant was arrested and try to find the envelope. Artaserse did so and found
the envelope under a parked car in the east curb lane of Westside Avenue. The
envelope contained six counterfeit ten dollar bills, each identical in appearance
and serial number with the one Carlson had passed to Orrick and the one he had
attempted to pass to Rork. Without wasting any time, Artaserse returned to the
police station and before handing the envelope and the six bills over to
Detective-Sergeant Kelly, he wrote the following notation on each bill:
'Detective A. E. Artaserse, Shield 107, 7-15-64.'
15
Kelly called the police station of the Fifth Precinct and asked them to deliver to
him the bill which Carlson had transferred to Orrick. When he received it, he
affixed his own signature and the date to it. He also put the following notation
on the bill that he had intercepted from Carlson: 'A.R.K., III, 1.05 P.M., 7-1564.' After showing the bills to a Secret Service agent, Kelly put them in his
private locker at the police station and did not remove them until the following
day. On that day he delivered them to the Jersey City Municipal Court, Part I,
where appellant was given a hearing. After the hearing, which was continued to
July 20, 1964, Kelly transferred the bills to Agent Pat O'Callaghan of the Secret
Service, who produced them at the trial.
16
It is submitted here that there was sufficient evidence offered by the

Government to warrant conviction by the jury on both counts of the indictment.
17
It must be kept in mind that the weight and credibility to be attached to the
testimony of the witnesses is a matter for the trier of the facts and we are
required to take that view of the evidence most favorable to the Government.
United States v. Bailey, 7 Cir., 277 F.2d 560, 566; United States v. Detente, 7
Cir., 199 F.2d 286.
18
The principal thrust of the appellant's argument on the facts hereinabove set
forth was that the Government did not prove beyond a reasonable doubt that the
appellant was guilty of aiding and abetting in the commission of this offense.
While it is conceded that the mere passing of counterfeit bills by an individual
is not sufficient to show knowledge on the part of the defendant that they were
counterfeit, United States v. Litberg, 7 Cir., 175 F.2d 20, nevertheless, the
question of guilty knowledge and especially the intent to defraud since it can
rarely be shown by direct evidence, it is well-established that such elements
may be shown by other than direct evidence. United States v. Platt, 7 Cir., 156
F.2d 326 at 327. The jury here had every right to scrutinize the entire conduct
of the defendant at or near the time when the alleged actual passing of the
counterfeit notes was being done by Carlson and it is submitted there was more
than sufficient evidence here to connect the defendant as an aider and abettor.
As pointed out by the Government, from the presence of the defendant with
Carlson at the time of the passing of the first counterfeit bill and his continued
association with him for the balance of the morning, and his actions at the time
of Carlson's second attempt to pass a counterfeit bill and his possession of six
identical counterfeit bills, together with his brawling with the officer in order to
try to discard them at the time of his arrest, the jury could properly infer that
the defendant was aiding and abetting Carlson in the commission of the
offense. United States v. Garguilo, 2 Cir., 310 F.2d 249; United States v.
Kelley, 7 Cir., 186 F.2d 598, 602; United States v. Sahadi, 2 Cir., 292 F.2d 565.
19
Accordingly, the judgment of the District Court will be affirmed.
As set forth in Count III of the indictment, the serial numbers of the six bills
possessed by Dominick Bonomo, the appellant, were B20175986I, whereas the
serial numbers on each of the bills received in evidence were B21075986I. In

other words, two numbers '1' and '0' were transposed in the indictments
2
This rule provides: '(a) Appearance. * * * A person making an arrest without a

warrant shall take the arrested person, without unnecessary delay, before the
nearest available magistrate * * *.' (N.J.S.A. 3:2-3(a))

United States v. Charles Henry Carlson and Dominick Bonomo. Dominick Bonomo, 359 F.2d 592, 3rd Cir. (1966)

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359 F.

UNITED STATES of America

United States Court of Appeals Third Circuit.

Levan Gordon, Philadelphia, Pa., for appellant.

Appellant was arrested by local authorities without a warrant. The Fourth

Approximately 10-15 minutes later, Sergeant Raymond Dillman accompanied

Artaserse then approached appellant, identified himself as a police officer and

Upon being informed by Artaserse about appellant's discarding of the white

It is submitted here that there was sufficient evidence offered by the

Accordingly, the judgment of the District Court will be affirmed.

serial numbers on each of the bills received in evidence were B21075986I. In

This rule provides: '(a) Appearance. * * * A person making an arrest without a

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