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Docket Number

Nos. 18436, 18437.

Attorney(S)

Robert S. Bailey, Chicago, Ill., for defendants-appellants. James R. Thompson, U.S. Atty., William T. Huyck, Asst. U.S. Atty., Chicago, Ill., William J. Bauer, U.S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U.S. Attys., of counsel.

Judges

John Simpson Hastings
Roger Joseph Kiley
Myron L. Gordon

Acts

Crimes And Criminal Procedure — General Provisions — Crimes — Principals

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Smart Summary

Case Summary: United States v. Hugh Kilpatrick & Carl Kenneth Barker (7th Cir., Apr. 10, 1972)

Factual and Procedural Background

The defendants-appellants, Hugh Kilpatrick and Carl Kenneth Barker, were indicted with thirteen others on charges relating to the distribution of counterfeit money. Each defendant was convicted by a jury on a conspiracy count and on three specified substantive counts: Kilpatrick on counts 2, 5 and 11; Barker on counts 8, 20 and 21. Both defendants received concurrent sentences — five years on the conspiracy count and seven years on each substantive count. They appealed their convictions to the Seventh Circuit, advancing principally three issues: (1) whether the evidence established a single unitary conspiracy or merely a series of unrelated transactions; (2) whether certain government rebuttal testimony (a Secret Service agent's testimony regarding Barker's post-arrest statements) was improperly admitted; and (3) whether venue was proper in the Northern District of Illinois as to Kilpatrick (including an attendant constitutional challenge to 18 U.S.C. § 2).

The trial evidence, encompassing over a thousand pages of testimony, described a counterfeiting and distribution scheme that began in spring 1967. Key factual points presented at trial included:

Roy Morgan, with access to counterfeit money in Alabama, offered to supply Kilpatrick and Billy Lovell.
Don Baggett (Lovell's brother-in-law) testified that he and others received counterfeit $20 bills from Kilpatrick and Lovell in March and later purchased larger quantities in Alabama and Nashville.
Baggett displayed and sold counterfeit bills in Chicago and sold large quantities to Barker in the spring and summer of 1967.
Kilpatrick drove Baggett and others from Alabama to Chicago, and counterfeits were transported and hidden in Illinois (e.g., secreted in an apartment closet above a tavern in Cicero).
The factual record tied multiple participants (Morgan, Lovell, Baggett, Dukes, Barker, and others) together over a relatively limited time period, creating the factual basis on which the jury convicted both appellants.

Legal Issues Presented

Whether the evidence was sufficient to establish a single, unitary conspiracy rather than a series of unrelated, independent transactions.
Whether the trial court erred in admitting rebuttal testimony by a Secret Service agent concerning Barker's post-arrest statements (i.e., whether that rebuttal constituted improper impeachment on a collateral matter).
Whether venue was properly laid in the Northern District of Illinois for Kilpatrick's charged offenses — including whether 18 U.S.C. § 2 (aider and abettor liability and venue consequences) is constitutional as applied.

Arguments of the Parties

Appellants' Arguments

The defendants argued the evidence demonstrated only a series of similar but separate dealings, not a single conspiracy encompassing all participants.
They contended the government's rebuttal testimony (agent Franzon's testimony about Barker's post-arrest denials) was improper because it amounted to impeachment on a collateral matter—i.e., whether Barker had known Baggett and Lovell previously did not, in their view, bear on criminal involvement.
Kilpatrick asserted that venue was improperly laid in the Northern District of Illinois for certain counts and additionally challenged the constitutionality of 18 U.S.C. § 2, which permits prosecution of an aider and abettor in the district where the substantive offense occurred.

Plaintiff-Appellee (Government) Arguments

The government maintained that the evidence supported a unitary conspiracy, with Baggett serving as the connecting link among participants, and that Kilpatrick and Barker were aware of the interlocking structure of the operation.
The government argued rebuttal testimony was appropriate because Barker's answers on cross‑examination were equivocal, justifying proof that Barker had made explicit denials at arrest; further, false exculpatory statements at arrest are admissible as circumstantial evidence of consciousness of guilt.
With respect to venue, the government pointed to acts by Kilpatrick that occurred within the Northern District (e.g., transporting counterfeit money to Cicero and concealing it), and argued that even if venue might have been defective on some counts, Kilpatrick's concurrent sentences and prevailing statutory interpretation (18 U.S.C. § 2) justified affirmance; the government also invoked the "general rule" that an aider and abettor may be prosecuted where the substantive offense occurred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Nasse, 432 F.2d 1293 (7th Cir. 1970), cert. denied, 401 U.S. 938; cert. denied sub nom. David v. United States, 402 U.S. 983 (1971)	That defendants knew illegal acts by a chain of participants were necessary to the total operation (language quoted).	The court relied on the Nasse language to support the conclusion that the evidence showed awareness of the interlocking alliances and that this supported a unitary conspiracy finding.
Kotteakos v. United States, 328 U.S. 750 (1946)	General authority on when multiple transactions constitute separate conspiracies (distinguishable factual situation).	The court stated the instant case was distinguishable from Kotteakos on its facts and therefore Kotteakos did not control a finding of one conspiracy here.
Blumenthal v. United States, 332 U.S. 539, 558 (1947)	Where a scheme is the same scheme and participants must have known others were sharing in a large project, separate agreements become part of a larger common plan (language quoted).	The court cited Blumenthal to support that salesmen or participants who knew of the essential features and broad scope of a common plan could be held part of a single conspiracy.
United States v. Hutul, 416 F.2d 607, 619 (7th Cir. 1969)	Language that a record can show defendants were members of a "sodality of fraud" and knowingly participated together to achieve a common illegal goal.	The court applied Hutul's language to reinforce that the evidence supported membership in a unified fraudulent enterprise rather than isolated acts.
United States v. Riso, 405 F.2d 134, 138 (7th Cir. 1968), cert. denied, 394 U.S. 959 (1969)	Untrue exculpatory statements at the time of arrest may be considered as circumstantial evidence of the defendant's consciousness of guilt.	The court used Riso to justify admitting rebuttal testimony showing Barker made untrue exculpatory statements at arrest, allowing the jury to consider such statements as circumstantial evidence of guilt.
Benton v. Maryland, 395 U.S. 784 (1969)	Referenced as part of recent cases diminishing the vitality of the "concurrent sentencing doctrine."	The court cited Benton as one of several authorities prompting the court to examine the correctness of convictions on individual counts rather than relying on concurrent sentencing to avoid an inquiry into venue.
United States v. Tanner (Nos. 17917, 17918, 17919, 7th Cir., decided Mar. 3, 1972)	Referenced among cases diminishing the "concurrent sentencing doctrine."	The court cited Tanner to support the proposition that it must inquire into the validity of Kilpatrick's convictions on separate counts rather than rely on concurrent sentencing to obviate venue issues.
Davie v. United States, 447 F.2d 480 (7th Cir. 1971)	Referenced among cases diminishing the "concurrent sentencing doctrine."	The court cited Davie with the other cases to show reduced applicability of the concurrent sentencing doctrine and to justify further venue analysis.
United States v. Stevenson, 409 F.2d 354, 357 (7th Cir. 1969) (cf.)	Used as a comparative reference regarding concurrent sentencing or related procedural principles.	The court cited Stevenson by way of comparison (cf.) in the discussion of concurrent sentencing and the need to examine venue issues.
United States v. Bozza, 365 F.2d 206 (2d Cir. 1966)	Example of the "general rule" permitting prosecution of an aider and abettor in the district where the substantive crime was committed.	The court cited Bozza as illustrative support for interpreting 18 U.S.C. § 2 to permit venue where the substantive offense occurred despite accessorial acts occurring elsewhere.
Eley v. United States, 117 F.2d 526 (6th Cir. 1941)	Another example of the "general rule" on venue for aiders and abettors.	The court cited Eley among authorities supporting the view that an aider and abettor may be prosecuted in the district of the substantive offense.
David v. United States, 402 U.S. 983 (cert. denied) (1971)	Certiorari denial cited as part of the Nasse citation chain (indicating litigation history).	Included in the opinion's citation string related to United States v. Nasse; the court did not rely independently upon David for substantive rule beyond the Nasse quotation and citation context.

Court's Reasoning and Analysis

The court divided its analysis into three discrete topics corresponding to the principal issues raised on appeal: conspiracy, rebuttal testimony, and venue. The court relied on the trial record and existing authority to resolve each issue as follows.

I. Conspiracy

The court reviewed the factual record and concluded that the testimony, taken as a whole, was sufficient to support a finding of a unitary conspiracy rather than a string of unrelated transactions. The court emphasized several factual indicators supporting unity:

The presence of a connecting participant (Baggett) who linked the varying actors and transactions;
The relatively limited time frame over which the events occurred;
The roles played by Kilpatrick and Barker were not isolated or merely episodic but significant and interrelated;
Testimony showed knowledge of interlocking alliances used to distribute counterfeit money.

To support this factual conclusion the court relied on a cluster of precedents (Nasse, Blumenthal, Hutul) that recognize a defendant's knowledge of the broader enterprise and the necessary interdependence of participants as sufficient to sustain a single conspiracy conviction. The court explicitly distinguished the present facts from Kotteakos, finding that Kotteakos was inapposite on its facts.

II. Rebuttal Testimony

Barker had testified and acknowledged making a false statement to a Secret Service agent, explaining on cross-examination that he had lied because he did not want to become involved in the transaction. On cross-examination he was asked what he had said at the time of arrest when shown pictures of Baggett and Lovell; his answers were equivocal rather than a clear admission that he had denied knowing them.

The court reasoned that because Barker's cross-examination responses were vague, the government was justified in offering rebuttal testimony from agent Franzon to show that Barker had been shown pictures and had expressly denied knowing those individuals at the time of arrest. The court rejected the appellants' contention that this was collateral impeachment, holding instead that proof of untrue exculpatory statements at arrest could be considered by the jury as circumstantial evidence of consciousness of guilt. The court cited United States v. Riso for that specific evidentiary principle.

III. Venue

The court analyzed venue first with respect to count 5, for which direct acts by Kilpatrick occurred in the Northern District of Illinois: Kilpatrick transported Baggett and Dukes to Cicero where counterfeit money was secreted, supporting venue as to count 5.

Because Kilpatrick received concurrent seven-year sentences on counts 2, 5 and 11, the government urged that a venue defect on counts 2 and 11 would not require reversal. The court rejected reliance on the "concurrent sentencing doctrine" without examination: it observed that the vitality of that doctrine had been diminished by recent decisions (citing Benton, Tanner and Davie) and therefore proceeded to examine venue for counts 2 and 11.

For count 2 the evidence showed Kilpatrick gave counterfeit bills to Baggett in Alabama and that Baggett later sold those bills in Cicero, Illinois. For count 11 the evidence showed Baggett and Boris Mitcheff purchased 4,000 counterfeit bills from Lovell and Kilpatrick in Nashville and then transported and disposed of the money in Cicero.

Kilpatrick advanced a constitutional attack on 18 U.S.C. § 2, asserting it was unconstitutional to permit prosecution of an aider and abettor in a district where the principal's substantive offense was committed when the accessorial acts were committed elsewhere. The court observed that the statute has been construed to permit such prosecutions and that Congress has declared an aider and abettor may be punished as a principal. The court found no authority presented by appellant to support the constitutional challenge and concluded that 18 U.S.C. § 2 does not violate Article III, Section 2 or the Sixth Amendment.

Applying the "general rule" (supported by cited authorities such as Bozza and Eley) that an aider and abettor may be prosecuted where the substantive offense occurred, the court held venue for counts 2 and 11 was proper in the Northern District of Illinois despite some accessorial acts occurring in other districts.

Holding and Implications

Holding: The judgments of conviction of defendants Hugh Kilpatrick and Carl Kenneth Barker were AFFIRMED.

Implications and direct effects:

The court affirmed the jury's finding of a unitary conspiracy based on the evidence tying participants together through interlocking acts and a central connecting figure (Baggett).
The court held the trial court did not abuse its discretion in admitting the government's rebuttal testimony by agent Franzon; such testimony could be considered as circumstantial evidence of consciousness of guilt when the defendant's cross‑examination answers were equivocal.
The court concluded that venue was proper in the Northern District of Illinois as to the counts challenged by Kilpatrick. It rejected Kilpatrick's constitutional challenge to 18 U.S.C. § 2 and applied the "general rule" that an aider and abettor may be prosecuted in the district where the substantive offense was committed.
No new precedent-expanding rule was announced beyond the court's application of existing authorities; the decision affirms established lines of authority on conspiracy sufficiency, admissibility of post-arrest denials as circumstantial evidence of guilt, and venue under the accepted interpretation of 18 U.S.C. § 2.

This summary is prepared strictly from the content of the provided opinion and does not add information beyond that opinion's text.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. HUGH KILPATRICK AND CARL KENNETH BARKER, DEFENDANTS-APPELLANTS.

GORDON, District Judge.

The appellants Kilpatrick and Barker were each found guilty by the jury under the conspiracy count and three substantive counts under an indictment which charged them and thirteen others with violating certain laws of the United States relating to counterfeit money. In addition to the conspiracy count (count 1), Kilpatrick was convicted under counts 2, 5 and 11, and Barker was convicted under counts 8, 20, and 21.

Both Kilpatrick and Barker appeal their convictions, and three principal issues are advanced. First, the defendants urge that the evidence does not establish a single conspiracy but, instead, shows a series of unrelated transactions. Secondly, it is contended that it was improper to have admitted certain rebuttal testimony offered by the government. A third issue, advanced on behalf of Kilpatrick, is the claim that venue was incorrectly laid in the district court for the northern district of Illinois.

Both defendants were sentenced to five-year terms on the conspiracy count and to seven-year terms on each of the substantive counts, with all sentences to run concurrently.

The testimony in this case ran over a thousand pages, and our brief summary of it is principally designed to reflect some of the ways in which Kilpatrick and Barker were involved. Starting in the spring of 1967, Roy Morgan, who had access to counterfeit money in Alabama, offered to supply such money to the defendant Kilpatrick and Billy Lovell. Morgan claimed that at first Kilpatrick rejected the proposal, but when the offer was repeated, it was accepted. Don Baggett, Lovell's brother-in-law, testified that Lovell and Kilpatrick exhibited a counterfeit twenty dollar bill to him in Georgia in March, 1967; subsequently, on March 29, 1967, Baggett received $500.00 in counterfeit twenty dollar bills from Kilpatrick in Alabama.

Baggett then displayed the counterfeit twenty dollar bills to Connis Dukes in Chicago. A little later, Lovell, Baggett and Dukes drove to Alabama where the latter two persons paid $1200.00 for approximately $8,000.00 in counterfeit twenties, which were supplied by Lovell and Kilpatrick. Then Kilpatrick borrowed a 1965 Plymouth and drove Baggett and Dukes from Alabama to Chicago.

In May, 1967, Baggett first showed one of the counterfeit twenty dollar bills to Barker, who is the brother-in-law of Dukes. After making a trip to Nashville, Tennessee, Baggett returned to Chicago and sold $10,000.00 worth of the counterfeit twenty dollar bills to Barker for $2000.00.

In early June, 1967, Baggett again went to Nashville and this time was met by Kilpatrick and Lovell, who sold $80,000.00 worth of counterfeit bills to Baggett and Boris Mitcheff for an agreed purchase price of $4000.00. In July, 1967, Lovell came to Chicago with $60,000.00 worth of ten dollar counterfeit money which was sold to Baggett for 5% of the face value.

Baggett testified that he made four sales of counterfeit money, totalling $50,000.00, to Barker in the spring and summer of 1967. In addition to such purchases from Baggett, Barker negotiated with Lovell and Morgan about the purchase of counterfeit money. Morgan testified that he met Barker with Lovell in Cicero, Illinois, but no sale was consummated because Barker would not agree to the price that was proposed.

I. CONSPIRACY

The appellants urge that the evidence shows a "series of similar but unrelated dealings." Taken as a whole, however, we believe that the testimony was sufficient to establish the existence of a unitary conspiracy. There was ample evidence presented from which the trier of fact could conclude that this was not a disconnected series of independent transactions, but rather was a unified project in which Kilpatrick and Barker not only played significant roles, but also were aware of the activities of the other affiliated participants.

Upon the evidence presented, the jurors could properly believe that Kilpatrick and Barker had knowledge of the interlocking alliances which were employed in carrying out the counterfeit money distribution scheme. With Baggett as the connecting link, the roles of the various participants were tied together. It may not be said that the roles of Kilpatrick and Barker were isolated, minimal, or episodic. The events took place within a relatively limited period of time. In the words of United States v. Nasse, 432 F.2d 1293, 1297 (7th Cir. 1970), cert. denied 401 U.S. 938, 91 S.Ct. 928, 28 L.Ed.2d 217 (1971), cert. denied sub nom. David v. United States, 402 U.S. 983, 91 S.Ct. 1657, 29 L.Ed.2d 148 (1971),

". . . the defendants knew that illegal acts on the part of a chain of participants . . . were necessary to the total operation."

On its facts, the case at bar is distinguishable from Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); on the other hand, it is akin to Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947), where, in an analogous situation, the court stated:

"The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal."

There is also applicable here the language of this court in United States v. Hutul, 416 F.2d 607, 619 (7th Cir. 1969):

"We are confronted with a record which contains sufficient evidence to support the finding that the defendants were members of a sodality of fraud and knowingly participated together to achieve the common illegal goal."

II. REBUTTAL TESTIMONY

It is urged that reversible error was committed when the secret service agent, Franzon, was permitted over objection to present rebuttal testimony concerning Barker's post-arrest statements. After Barker testified on his own behalf, he was asked on cross-examination about certain assertions made by him to the secret service agent; specifically, he was asked if he had told the agent that he was not acquainted with Baggett and Lovell. Barker acknowledged that he had made a false statement to the agent and admitted that he actually had known Baggett and Lovell from previous dealings at a used car lot. Barker explained that he had made the false statement because he had not wanted to become involved in the transaction. In rebuttal, agent Franzon testified that he showed pictures of Baggett and Lovell to Barker after the latter's arrest and that Barker denied knowing either person.

The appellants contend that permitting agent Franzon to testify in rebuttal was improper because it constituted the impeachment of Barker on a collateral matter; the appellants maintain that whether Barker had previously known Baggett and Lovell in some other capacity would not demonstrate any criminal connection between them.

We are unable to adopt the appellants' position. Barker had been shown pictures of Baggett and Lovell, but when he was asked, on cross-examination, what he had said when those pictures were shown to him at the time of his arrest, his answers were remarkably vague. He did not make a flat admission that he had falsely told the agents that he did not know the persons in the pictures. His responses were so equivocal that the government was justified in offering rebuttal testimony designed to show that Barker had in fact been shown pictures of Baggett and Lovell and had expressly denied knowing them.

The rebuttal did not constitute impeachment on a collateral issue; if the government was able to prove that Barker made untrue exculpatory statements at the time of his arrest, the jury could consider that as "circumstantial evidence of defendant's consciousness of guilt." United States v. Riso, 405 F.2d 134, 138 (7th Cir. 1968), cert. denied 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560 (1969).

III. VENUE

With reference to count 5 of the indictment, there was evidence offered to show that in April, 1967, Kilpatrick borrowed his nephew's automobile and drove Baggett and Connis Dukes from Alabama to Dukes' tavern in Cicero, Illinois. They brought with them a large amount of counterfeit money, which Dukes secreted in a closet in his apartment above the tavern. It thus is apparent that at least some of Kilpatrick's acts relating to the offense charged in count 5 actually occurred in the district in which Kilpatrick was tried, and that venue as to count 5 was proper.

Since Kilpatrick was given concurrent seven-year sentences as to counts 2, 5 and 11, the government has argued that Kilpatrick is not entitled to a reversal of his convictions even in the absence of correct venue as to counts 2 and 11. However, the vitality of the "concurrent sentencing doctrine" has been diminished by recent cases that include Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), United States v. Tanner, (Nos. 17917, 17918, 17919, 7th Cir., decided March 3, 1972), and Davie v. United States, 447 F.2d 480 (7th Cir. 1971). Cf. United States v. Stevenson, 409 F.2d 354, 357 (7th Cir. 1969). We conclude that it is necessary to inquire into the validity of Kilpatrick's conviction under counts 2 and 11 of the indictment.

The evidence with respect to count 2 showed that Kilpatrick gave 15 counterfeit twenty dollar bills to Baggett in Alabama shortly after the latter's escape from prison in Georgia; Baggett subsequently sold the counterfeit bills in Cicero, Illinois in April, 1967. Count 11 of the indictment charged Kilpatrick with the sale of 4,000 counterfeit twenty dollar bills in Cicero on June 22, 1967; the evidence presented at the trial showed that shortly before June 22nd, Baggett and Boris Mitcheff purchased the 4,000 bills from Lovell and Kilpatrick in Nashville, and Baggett and Mitcheff drove to Cicero and there disposed of the money.

The appellant maintains that 18 U.S.C. § 2 should be held unconstitutional. That statute has been construed to permit the prosecution of an aider and abettor not only in the district in which he committed the accessorial acts but also in the district where the substantive crime was committed.

The appellant concedes that the foregoing interpretation constitutes the "general rule" found in many decisions and treatises, and that it represents an enlargement of the common law rules of venue. See, for example, United States v. Bozza, 365 F.2d 206 (2d Cir. 1966); Eley v. United States, 117 F.2d 526 (6th Cir. 1941); 2 L. Orfield, Criminal Procedure Under the Federal Rules § 18:10; Annot., Multiple Venue of Federal Offenses, 5 L.Ed.2d 973, 975.

Congress has declared that an aider and abetter may be punished as a principal, and it follows that he may be punished in the same district as the principal. The appellant has presented no authority to the contrary, and we conclude that 18 U.S.C. § 2 does not violate either Article III, Section 2 of the Constitution or the sixth amendment thereof.

It is our determination that, on the basis of the "general rule" discussed above, the conviction of Kilpatrick for the offenses charged in counts 2 and 11 of the indictment may stand, notwithstanding the fact that the assessorial acts were committed in districts other than the northern district of Illinois. The substantive offenses occurred in Illinois and, pursuant to the interpretation given to 18 U.S.C. § 2, venue was proper with respect to counts 2 and 11.

The judgments of conviction of the defendants Kilpatrick and Barker are affirmed.

UNITED STATES v. KILPATRICK