Kiley, Fairchild and Kerner, Circuit Judges.
Appellant, Peter Vole, Jr., was indicted with seven others*fn1 under 18 U.S.C. § 371 for conspiring to pass, publish and sell with intent to defraud, counterfeit money in violation of 18 U.S.C. § 472 and conspiring to buy, receive and possess counterfeit money in violation of 18 U.S.C. § 473. In addition, Vole was indicted on two substantive counts for violations of 18 U.S.C. §§ 472 and 473. Vole was tried before a jury with two co -conspirators, John B. Conte and James Ciconte,*fn2 found guilty on all three counts and sentenced concurrently to five years on the conspiracy count and ten years on each substantive count. We reverse and remand for a new trial.
At trial the government's case against Vole was based upon the testimony of three co -conspirators, Rodney Gummow, Charles Masini and Charles Drake (a/k/a Charles Scotti). Rodney Gummow testified that on or about August 6, 1964, he flew to Cleveland and purchased from Conte fifty thousand dollars in counterfeit twenty-dollar bills with money given to him by Vole and that on the following day, he delivered the counterfeit bills to Vole in Chicago. Gummow further testified that on or about August 13, 1964, he the appellant and an unindicted co -conspirator, Ruth Dell, drove to Cleveland and that Vole provided the money for the purchase of approximately one hundred thousand dollars in counterfeit one-hundred dollar bills. Finally, Gummow testified that on August 24, 1964, he flew to Cleveland and purchased from Conte fifty thousand dollars in counterfeit twenty-dollar bills and that he returned to Chicago with these bills and gave them to Vole.
Charles Masini, who was Vole's first cousin, testified that in the middle of August, 1964, he found an attache case containing ten thousand dollars in counterfeit twenty-dollar bills in a room in Vole's house which was being occupied by co -conspirators Henry Hagg and Charles Lamb. Masini stated that he took the money and left on a trip and that when he returned, Vole accused him of stealing his money. Masini further testified that Vole said to him that "he wasn't worried about the money because he had a lot more of it."
Finally, Masini testified that when he, himself, procured some counterfeit currency from John Conte in August of 1965, Vole asked him for some and he gave Vole ten to twenty counterfeit twenty-dollar bills. Masini further stated that when he asked Vole where all his counterfeit money was, Vole stated that he had given it all to Charles Lamb and Henry Hagg and that they were sending money back to him in the form of money orders as they cashed the notes.*fn3
On cross-examination, Masini admitted that on September 9, 1965, he planted thirty or forty counterfeit twenty-dollar bills in an automobile belonging to Vole and then advised the Lake County Sheriff that Vole possessed these bills. Vole was arrested but unexplainedly released after five hours and was not charged with possession of the planted bills. On redirect examination, Masini testified that a Lake County Deputy Sheriff Balzrina told him that the charges against him would be dropped if he "set up" appellant. Balzrina testified that he did not tell Masini to frame appellant and that he only learned several months after the frame that the bills were planted.
Charles Drake (a/k/a Charles Scotti) testified that he met Peter Vole in a tavern in September, 1964, and that Vole asked him if he were interested in some counterfeit notes. Scotti further testified that appellant showed him two counterfeit one-hundred dollar bills and said he could get Scotti all that he wanted. Scotti related that they made plans to meet the following week at another tavern but Vole never appeared.
Vole's theory of defense throughout trial and in closing argument was that he was framed. Vole contended that the testimony of Gummow, Masini and Scotti was consciously designed to prove him to be the main financial source for the conspiracy to cover up the person or persons who were the true financial source and to provide a bargaining lever for Masini, Gummow and Scotti in making a deal with the government on their own charges.
Consequently, Vole proposed as an instruction reflecting his theory of the case, the following:
You are instructed that it is the defendant Vole's theory of this case that Charles Masini conspired with other persons to frame him for a counterfeiting conspiracy. If the facts adduced in support of the defendant Vole's theory, create in your mind a reasonable doubt of his guilt of these charges, then you must find the defendant Vole not guilty of these charges.
The government did not object to the instruction, yet it was refused. No instruction was given by the court which conveyed appellant's theory of defense and we find the failure to give the instruction or any comparable instruction to be reversible error by the court.
This court in United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969), reiterated the established proposition that "the defendant in a criminal case is entitled to have the jury consider any theory of defense which is supported by law and which has some foundation in the evidence, however tenuous." See also United States v. Phillips, 217 ...