Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
In an indictment consisting of 14 counts, defendants were charged with the violation of Title 18, U.S.C.A. §§ 471, 472, and 473, pertaining to counterfeiting. In Counts 1 to 7 inclusive, defendants William Skally and William Russo were charged with possession and sale of certain counterfeited $10 and $20 Federal Reserve Notes; in Counts 8 to 13 inclusive, defendants James Sferas and Sam Sferas were charged with making, possession, and sale of the same counterfeited Federal Reserve Notes described in Counts 1 to 7; and Count 14 charged conspiracy by all defendants. The trial was to a jury which found all defendants guilty as charged.
In addition to claiming that the evidence is insufficient to support the guilty verdict as to Counts 1 to 7 inclusive and Count 14, defendant Skally strongly relies upon the defense of entrapment. Defendant Russo also raises the defense of insufficiency of the evidence as to him, and in addition alleges prejudicial error in the admission into evidence of a document relating to the forfeiture of his automobile. James and Sam Sferas are brothers who operated a commercial printing business in Chicago for 13 years. They insist that the evidence upon which Sam Sferas was convicted is not sufficient as a matter of law to substantiate the charges against him. Both Sam and James Sferas insist that the search of the premises occupied by them as a printing establishment was unreasonable and the seizure of evidence therein illegal, and in violation of these defendants' rights under the Fourth and Fifth Amendments to the United States Constitution.
We have read the voluminous record, consisting of 859 printed pages, and considering the evidence in the light most favorable to the government, there is clearly substantial proof to support the jury's verdict of guilty as to defendants Skally, Russo and James Sferas. We shall discuss later the proposition as to whether the evidence is sufficient to support the verdict of guilty as to Sam Sferas. Hence, the judgment of conviction must stand as against Skally unless he can successfully invoke the defense of entrapment, as against Russo unless there was prejudicial error in the admission of evidence against him, and as against James Sferas unless there was an unreasonable search and seizure of the premises where the printing shop was located. This defendant also raises a question as to a member of the jury.
We consider first defendant Skally's claim that he was entrapped by the informer, John Drake. In passing, we have noted the bitter attack made on Drake, including that he had a previous police record. However, all this was brought out before the jury, which had an opportunity to observe him on the witness stand. The jury was the sole judge of his credibility. In considering the evidence in the light most favorable to the government, we must assume that where Skally's testimony conflicted with that of Drake, the jury believed Drake as he narrated his dealings with Skally.
Skally did not raise the defense of entrapment at the trial. Ordinarily the defense of entrapment raises a question of fact which should be submitted to the jury under proper instructions. Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413; United States v. Markham, 7 Cir., 191 F.2d 936, 937. Of course that was not done in the case at bar, because the matter was not brought to the attention of the trial judge. No reason is suggested why Skally did not raise the defense of entrapment during the trial. Perhaps such failure is understandable as a matter of strategy. When testifying in his own behalf, Skally denied he had anything to do with the handling, possession, or sale of the counterfeited notes. Obviously such testimony is contradictory to his present position that he was tricked and entrapped by the informer into violating the laws against counterfeiting.
In an attempt to promote the orderly administration of justice, appellate courts will not, generally speaking, pass upon defenses which have not been previously brought to the attention of the trial court. United States v. Jones, 7 Cir., 204 F.2d 745, 749. It is recognized that under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., plain errors and defects affecting substantial rights may be noticed by the appellate court although not brought to the attention of the trial court. The application of Rule 52(b) rests in a large measure upon the exercise of sound judicial discretion. United States v. Jones, supra, 7 Cir., 204 F.2d at page 748; United States v. Jonikas, 7 Cir., 187 F.2d 240. This court has stated, "Such errors must, however, be substantial and capable of resulting in miscarriage of justice to warrant the reversal of a judgment of conviction based on ample evidence." United States v. Raub, 7 Cir., 177 F.2d 312, 315.
The evidence in this case against Skally is so ample to sustain the judgment of conviction as to him that we are warranted in refusing to pass upon the newly raised defense of entrapment. We have previously refused to do so in many cases, such as United States v. Ginsburg, 7 Cir., 96 F.2d 882, 885, certiorari denied 305 U.S. 620, 59 S. Ct. 81, 83 L. Ed. 396, and United States v. Kaiser, 7 Cir., 138 F.2d 219, 220, certiorari denied 320 U.S. 801, 64 S. Ct. 431, 88 L. Ed. 483. Appropriate to the situation at bar is our statement in United States v. Jones, supra, 204 F.2d at page 749: "We shall not, in a flagrant case, give cognizance to a complaint first made to us and thus give defendant two bites at the same cherry, by declaring erroneous action of the trial court, the fault of which defendant did not see fit to make the court aware, when he had the opportunity to do so."
The evidence disclosed that Russo and Skally were friends. During the period when Skally and Drake were having various meetings with reference to the counterfeited notes, Russo and Skally were observed together several times, and on one occasion Russo, Skally and James Sferas were seen conversing in Malizia's Tavern, a place where Skally and Drake had met a number of times. On December 18, 1951, a date when Drake received the first delivery of $50,000 in counterfeited notes, Russo and Skally were observed at Bill's Place. A few moments later Russo came out, walked to his Cadillac automobile, and removed therefrom a package about the size and shape of a shoe box, and then re-entered Malizia's with it. Agent Drake testified that when he, at Skally's direction, picked up from a radiator near the doorway of Malizia's a box of the same size and appearance as Russo had brought in, he observed that Russo was standing nearby, watching him. It was established that that box contained $50,000 in counterfeited currency.
On the evening of February 2, 1952, Skally drove Drake on various streets in Chicago. By pre-arrangement, when a Cadillac automobile driven by Russo pulled alongside, Drake transferred to the Cadillac. Russo told Drake that when he sounded the horn to roll down the window of the Cadillac, and that a package would be handed to him.After driving around the block several times, the horn was sounded, Drake opened the door, and an unknown person handed to Drake a package which, it was later proved, contained $50,000 in counterfeited currency. Russo asked Drake when they would be paid for this currency, but Drake would not discuss that point with him.
In the early hours of February 3, 1952, Russo left his Cadillac car parked near Malizia's. For some hours the government officers kept it under surveillance, and then seized it. Russo did not return to his residence that morning, but stayed at the home of a sister for some five or six days, at which time he surrendered to the Secret Service officers. Russo made inquiry about administrative proceedings for recovering his automobile. He was given a form to sign directed to the Secretary of the Treasury, in which it was stated, "Assent is hereby given to the forfeiture for violation of the Customs Revenue Laws of 1942 Cadillac sedanette * * * now in the custody of the Collector of Customs at the port of Chicago, Ill. * * *; and I hereby waive any further rights or proceedings in the premises, and make claim for the release and delivery of said property upon the deposit by me with the said Collector of Customs of $300.00, being the appraised domestic value of said property." He was also given a form to sign which had been filled out by customs officials and about the center of said form, under the description of the automobile appeared, "Received the within described automobile 3/17/52," and Russo signed immediately under said line. Further down on the form someone had typed in the following: "This automobile was seized on Feb. 4, 1952, by Special Agents ...