COMMONWEALTH vs. ANTHONY G. SAVILLE.

CUTTER, J. Saville under two indictments was charged with (1) unlawfully possessing with intent to use certain equipment listed in G. L. c. 267, Section 13, for the purpose of making counterfeits of "notes and bills . . . issued by the Federal Reserve Bank of the United States" and (2) unlawfully possessing "with intent to utter and pass" ten or more "counterfeit bank bills . . . purportedly issued by the Federal Reserve Bank of the United States . . .." See G. L. c. 267, Section 9. The trial was conducted under G. L. c. 278, Sections 33A-33G, as amended. He was found guilty on both charges. Saville appealed. He assigns as error the denial of his motions (1) to suppress certain evidence and (2) for directed verdicts.

1. Saville, prior to trial, sought to suppress evidence seized at his printing shop under a search warrant issued on July 4, 1966, pursuant to an application on that day by Officer Desrosiers of the West Springfield police. The application reads, in part, "I have information based upon . . . statements made to me by Detective Richard Hurley of the Connecticut State Police that John J. Parisi had stated that Anthony Saville of 38 Burford Avenue, West Springfield gave said Parisi 150 counterfei[t] ten dollar bills, this occurring at the print shop of said Saville located at 212 Bosworth Street in West Springfield yesterday afternoon." The officer concluded that "there is probable cause to believe" that Saville unlawfully possessed at his print shop counterfeit $10 bills as well as certain items of printing equipment capable of producing such bills.

At the pre-trial hearing before the judge who later presided at the trial, Saville's attorney introduced in evidence only (1) a warrant to search 212 Bosworth Street, (2) the affidavit (quoted above) of Officer Desrosiers, and (3) a form of notice, dated July 14, 1966, of proposed forfeiture of the articles seized under the warrant as "property used in the commission of a crime." The motions to suppress, however, alleged that when Officer Desrosiers made application for the warrant to search 212 Bosworth Street, he also made "applications . . . for two other search warrants,

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which . . . contained affidavits [by Officer Desrosiers] . . . inconsistent with . . . information set forth in the affidavit" upon which the warrant to search 212 Bosworth Street was based. Copies of these affidavits were attached to each motion to suppress (as examination of the original motions reveals). [Note 1] These affidavits and the warrants based upon them were also dated July 4, 1966, and were issued by the same clerk who issued the warrant to search the Bosworth Street premises.

This is another instance, like some recent cases, [Note 2] where the police, although perhaps aware of facts amounting to probable cause, seem to have set their information out in the required affidavit for the particular warrant (see G. L. c. 276, Section 2B, as amended through St. 1965, c. 384) less completely than would have been appropriate. In this case, however, the information in all the affidavits presented to the clerk on July 4, 1966, adequately revealed the facts relied upon to show probable cause. United States v. Serao, 367 F. 2d 347, 348-349 (2d Cir.). We thus need not discuss whether the affidavit in support of the application relating to 212 Bosworth Street was sufficient by itself.

This last mentioned affidavit and the affidavits (see fn. 1) in support of the applications concerning Parisi's premises were obviously presented by the same police officer to the same clerk at the same time as a part of a single effort to obtain search warrants relating to one counterfeiting transaction. We think that the affidavits may be considered

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as a group and that, so viewed, they establish (1) that Parisi had told a Connecticut State police officer that Saville had given Parisi 150 counterfeit $10 bills at Saville's printing shop on the afternoon of July 3, 1966, and (2) that Parisi had been arrested on July 3, 1966, on charges concerning counterfeit $10 bills with forty such bills in his possession at the time of his arrest. These facts, taken together, had substantial tendency to show that counterfeit money had been obtained at the printing shop and that one who had such money in his possession in incriminating circumstances had obtained the money there from Saville. Although the information about Parisi in the application for the Bosworth Street warrant was somewhat meager, even that application by itself showed that Parisi admitted receipt of counterfeit bills from Saville at his shop. "Incriminating admissions by one who asserts participation [in criminal activity] tend to show the reliability of his statements." Commonwealth v. Owens, 350 Mass. 633, 635-636. See Commonwealth v. Lepore, 349 Mass. 121, 123. If it be assumed that Parisi did not in terms assert participation in the counterfeiting venture, involvement in it was inferable from what he was reported as admitting to the Connecticut officer. It was sufficient to warrant treating that admission as reliable. See United States v. Bozza, 365 F. 2d 206, 225 (2d Cir.); United States v. Wood, 270 F. Supp. 963, 966-967 (S. D. N. Y.). Cf. United States v. Whitlow, 339 F. 2d 975, 976-980; United States v. Brennan, 251 F. Supp. 99, 104 (N. D. Ohio).

We apply the principle stated in United States v. Ventresca, 380 U.S. 102, 108-109, that warrants and affidavits in support of them must be tested "in a commonsense and realistic fashion." The motions to suppress were properly denied.

2. Saville contends that verdicts should have been directed for him because "[t]he possession of ten or more counterfeit . . . Federal Reserve notes and the possession of equipment to counterfeit such notes are not crimes under G. L. c. 267, Section 9, or . . . Section 13." These and other relevant sections are

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set forth in the margin. [Note 3] He argues in effect that Sections 9 and 13 do not apply to counterfeit Federal Reserve notes, because such notes are not issued by "an incorporated banking company" within the meaning of that term used in Section 8, and within the meaning of the term "issued by any bank or banking company" used in Section 13.

Section 9 makes it a crime to possess (in specified circumstances) with intent to pass ten or more "counterfeit notes . . . such as are mentioned in any of the preceding sections." Section 8 refers to "a bank bill . . . issued by any incorporated banking company." Section 13 makes it

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a crime to possess with intent to use certain items of equipment designed for making "counterfeit[s of] notes . . . issued by any bank or banking company."

Federal Reserve notes are "obligations of the United States," see 12 U. S. C. Sections 411-414 (1964; see 1966 amendment of Section 413 by 80 Stat. 161), which may be issued to each of the twelve Federal Reserve banks (see 12 U. S. C. Section 222, App. A (1964), and 26 Fed. Reg. 12638) against statutory collateral deposited by such banks (Sections 412-414), "at the discretion of the Board of Governors of the Federal Reserve System" (Section 411; see also Section 248 [d] as amended by 80 Stat. 161). The notes then may be put in public circulation by the several Federal Reserve banks. Notes "so paid out . . . bear . . . a distinctive letter and serial number . . . assigned . . . to each Federal Reserve bank" (Section 413). [Note 4] Such notes are receivable by member banks of the Federal Reserve System and for all taxes (Section 411), so they have most characteristics of money. See for a general discussion of these notes, Nussbaum, Money in the Law (rev. ed.) pp. 91-92.

We assume that the delivery of a Federal Reserve note to one of the twelve Federal Reserve banks is "the first delivery . . . to a holder or remitter," the sense in which "issue" is used in the Uniform Commercial Code. G. L. c. 106, Section 3-102 (1) (a). Article 3 of the Code, however, does not apply to "money," see Section 3-103 (1), which is defined as "a medium of exchange authorized . . . by a domestic . . . government as a part of its currency." See Section 1-201 (24). Federal Reserve notes are "money" within this definition, as the official comment (see Am. Law. Inst. Uniform Commercial Code, 1962 Official Text, p. 28) on clause (24) reveals. In any event, having in mind the obvious statutory purpose behind Section 8 (to punish the proscribed possession of counterfeits of notes used as currency put out to the public by banks), it is consistent with that purpose and with

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ordinary usage to view "issued" as including the action of the several Federal Reserve banks in putting into public circulation Federal Reserve notes obtained by them for that purpose under the Federal statutes cited above. Similarly, such an interpretation of "issued," as found in Section 13, is appropriate. Federal Reserve banks are incorporated under 12 U. S. C. Section 341 (1964). We thus hold that Federal Reserve notes are "issued by an incorporated banking company" within G. L. c. 267, Section 8 (fn. 3), as well as by a "bank," within Section 13.

Our conclusion renders it unnecessary to consider at length Saville's argument that the statutory and decisional history of G. L. c. 267, Sections 1, 8-13, indicates that counterfeiting a bank note, upon which an incorporated banking company was not directly liable (or a note within c. 267, Section 7), could be prosecuted only under Section 1. Section 1 has been regarded as having a wide scope. See Commonwealth v. Carey, 2 Pick. 47, 49; Commonwealth v. Woods, 10 Gray, 477, 480-482. We assume, without deciding, (1) that Section 1, which carries a lesser penalty than Sections 9 and 13, would apply to counterfeiting any type of bank note or currency not more specifically made an offence in one of the later sections of c. 267, and (2) that Section 1 (under the holding in Commonwealth v. Dole, 2 Allen, 165, 167-168; but see Commonwealth v. Paulus, 11 Gray, 305) would not apply where a counterfeit of any note more explicitly described in one of the later sections was involved. [Note 5]

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3. There was no fatal variance between the indictments (which referred to "notes and bills" or "bank bills," issued or purportedly issued "by the Federal Reserve Bank of the United States") and the proof which showed that the case dealt with counterfeit Federal Reserve notes. See G. L. c. 277, Sections 34-35. [Note 6] See also Commonwealth v. Hall, 97 Mass. 570, 573.

Judgments affirmed.