When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard . . .. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another.7

Government agents in Katz had attached electronic listening equipment to the top of a telephone booth. When the defendant used the booth in making calls, the agents overheard his end of the conversations. The Supreme Court held that, since the search did not comply with constitutional standards, the evidence of the conversations was not admissible.

The attempt to equate the case sub judice with Katz must fail. It is true that appellant Koran did not wish to expose his words to the public. However, this fact alone does not suffice, for no criminal desires public exposure of his surreptitious activity. The crucial fact here is that the appellant knowingly took the risk that his conversants might expose his statements. Therefore, he cannot now complain that his conversants did in fact expose the conversations. In Katz, on the other hand, exposure of the defendant's private conversation was unaided by his conversant. Instead, exposure resulted from circumstances unrelated to the risk which the defendant knowingly took when he spoke to his conversant. Thus we think it clear that the appellant's reliance upon Katz is misplaced.8

The appellant argues that Agent Rivers' testimony relating to the conversation he overheard between the appellant and Schatzabel as they talked in the appellant's shop was nevertheless improper because it was unsupported by testimony from Schatzabel, who did not testify. This contention is without merit. The absence of supporting testimony from Schatzabel would have significance only if there existed a complete lack of evidence identifying the appellant as the party with whom Schatzabel conversed. Although Agent Rivers from his listening post could not visually observe the participants in the conversation, the record establishes beyond dispute that the appellant was one of the parties.

The statute which the appellant was convicted of violating proscribes the printing of currency and the possession of counterfeit currency 'except under authority from the Secretary of the Treasury or other proper officer.'9 The appellant contends that the Government did not prove his lack of authority and, therefore, failed to prove all the elements of the offense charged. While the Government offered no direct proof of the appellant's lack of authority, it did present evidence from which the jury could reasonably infer that he had no authority.10 Agent Rivers, for example, testified:

He (the appellant) indicated to me he had something to (show) me and I said well, let me look at it. He said, well, I'm not going to show it to you out here in the open.

I says well, let me look at it. So he handed it to me and I opened it up and it was a $1.00 Silver Certificate oversized.

Q Did you have any conversations with him regarding that $1.00 Silver Certificate that he handed you on that occasion?

A Yes. He indicated I should get in the car with him to look at this thing in private, which I did.

He stated that he had this at home and he had made it the night before and said he made it oversized just to show its detail which would prove his being a good printer.

It the jury believed the broad thrust of the testimony of the witnesses-- which it obviously did-- the inference was compelled that the appellant had no authority to print currency or to possess counterfeit currency.

Appellant Koran next contends that the trial court erred in permitting references during the prosecutor's opening statement and in the evidence throughout the trial to the appellant's unlawful printing of title certificates and driver's licenses as a part of the same venture which produced the counterfeit currency. Generally, evidence of crimes not charged in the indictment is inadmissible. However, we believe that the evidence in question falls within a widely recognized exception to the general rule which permits such evidence if it tends to prove a common scheme, plan or design on the part of the defendant so closely related to the offense charged that it may serve to establish the offense or to establish an intent in the mind of the accused to commit the offense.11

The prosecutor, in his opening statement, also made reference to the appellant's arrest for counterfeiting title certificates and driver's licenses. In response the appellant moved for a mistrial. The court denied his motion but offered to instruct the jury to disregard the prosecutor's comment; defense counsel, however, proferred not to have the instruction. The appellant contends that a mistrial was mandatory. We think, however, that the court was clearly within the bounds of its discretion in denying the motion.

The appellant makes one contention which is relevant only to his conviction on Count Five of the indictment, the possession count. The statute under which he was convicted makes unlawful the possession of a counterfeit obligation which is after the similitude of an obligation of the United States. The appellant argues that the oversized silver certificate which he is convicted of possessing was not 'after the similitude' of a United States silver certificate.12 However, it is unnecessary for us to reach this contention since the sentences under both counts run concurrently and since we have concluded that the conviction under the printing count is free of error.13

The judgment is affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.