100 F.2d 401 (2d Cir. 1938)
Peoni was indicted in the Eastern District of New York upon three counts for possessing counterfeit money and upon one count for conspiracy to possess counterfeit money.1 The jury convicted him on all four counts.2 The only question considered on appeal was whether the evidence was sufficient to sustain the verdict.3
In the Borough of the Bronx, Peoni sold counterfeit bills to Regno.45 Regno then sold the same bills to Dorsey, also in the Bronx.6 All three individuals knew that the bills were counterfeit.7 Dorsey was arrested while trying to pass the bills in the Borough of Brooklyn.8
The evidence established the chain of sales from Peoni to Regno to Dorsey.9 The conviction was appealed to the United States Court of Appeals for the Second Circuit for review.10
Whether Peoni was guilty as an accessory to Dorsey’s possession?11
The first statute dealing with accessory liability was passed in 1790.12 It made those accessories who should aid and assist, procure, command, counsel or advise murder or robbery on land or sea or piracy at sea.13 This was broadened in 1870 to include any felony. Both those statutes were repealed in 1909 and supplanted by the current provision which reads as follows: aids, abets, counsels, commands, induces, or procures. The definitions of accessory liability all demand that the defendant associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.14 All the words used carry an implication of purposive attitude towards it.15
No. The prosecution argued that as Peoni put the bills in circulation and knew that Regno would be likely not to pass them himself but to sell them to another guilty possessor, the possession of the second buyer was a natural consequence of Peoni's original act with which he might be charged.16 If this were a civil case, that would be true.17 But the rule of criminal liability is not the same.18
Since Dorsey's possession was not de facto Peoni's and since Dorsey was not Peoni's agent, Peoni can be liable only as an accessory to Dorsey's act of possession.19 The test must be found in the appropriate federal statute.20 Applying that test to the established facts, Peoni was not an accessory to Dorsey's possession because his connection with the business ended when he got his money from Regno, who might dispose of the bills as he chose.21
It was of no moment to him whether Regno passed them himself and so ended the possibility of further guilty possession or whether he sold them to a second possible passer.22 His utterance of the bills was indeed a step in the causal chain which ended in Dorsey's possession, but that was all.23 He did not associate himself with Dorsey's possession in the purposive manner required for accessory liability.24
Peoni was not guilty as an accessory to Dorsey’s possession.25
Whether he was party to a conspiracy by which Dorsey should possess the bills?26
A conspiracy imports a concert of purpose.27 Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.28 If later comers change that, he is not liable for the change and his liability is limited to the common purposes while he remains in it.29 The confusion is perhaps due to the fact that everything done by the conspirators, including the declarations of later entrants, is competent evidence against all so far as it may fairly be thought to be in execution of the concert to which the accused is privy, though that doctrine too is often abused.30
No. Assuming that Peoni and Regno agreed that Regno should have possession of the bills, it is absurd to say that Peoni agreed that Dorsey should have them from Regno.31 Peoni knew that somebody besides Regno might get them, but he had no concern with the bills after Regno paid for them.32 The evidence does not establish that Peoni shared a concert of purpose with respect to Dorsey's possession.33
At times it seemed to be supposed that once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does and even for what those do who join later.34 Nothing could be more untrue.35 Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it.
Peoni was not party to a conspiracy by which Dorsey should possess the bills.36