IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-50975
_______________
UNITED STATES of AMERICA,
Plaintiff-Appellee,
VERSUS
NATHANIEL JONES, III,
and
ALBERT CHEVALIER,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Texas
(W-97-CR-28-1)
_________________________
February 2, 1999
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Nathaniel Jones, III, and Albert Chevalier appeal their
sentences for violations of federal counterfeiting laws pursuant to
18 U.S.C. §§ 371 and 472. Jones also appeals his conviction,
claiming insufficient evidence to convict him of one count of
conspiracy to violate counterfeiting laws. Finding no reversible
error, we affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
This is not Jones's first experience with counterfeiting. On
July 28, 1996, he was arrested after passing several counterfeit
bills at a Houston night club. The next day, the police stopped
his unindicted co-conspirator, Greg Brookins,2 for a traffic
violation and found him in possession of counterfeit bills, a paper
cutter, 100% cotton bond paper, razor blades, and a ruler. The
counterfeit bills found on Brookins and Jones had a related origin.
During that same month, defendants passed counterfeit bills to
one of their neighbors, Wallace Graham. While in Graham’s
presence, they discussed their plan to make counterfeit bills using
a personal computer, but they lamented that they did not have
enough money to purchase a computer. After this conversation,
Graham contacted the Secret Service, which began surveillance of
Chevalier and arrested him after their surveillance revealed that
he possessed $1,000 in counterfeit bills. Chevalier admitted that
he and Brookins had made roughly $15,000 in counterfeit money.
Several months later, Jones (with Chevalier in the passenger
seat) attempted to pass a fake $20 bill at a Texas Burger drive-
through window. The employee recognized that the bill was
counterfeit and informed the police. Realizing that something was
wrong, Jones began tapping on the restaurant window while yelling
at the employee to return the bill. After waiting a few moments,
Jones drove off without securing the bill or receiving his food
order. As defendants were exiting the restaurant, the police
2
Brookins was not indicted with appellants because he pleaded guilty to
counterfeit charges resulting from his Georgia arrest.
2
pulled them over and began questioning them and noticed a Texas
Burger bag, containing a sandwich, on the front seat. Apparently,
defendants had obtained the bag containing the sandwich when,
earlier that same day, they had successfully passed a counterfeit
$20 bill at a different Texas Burger. The serial numbers on the
counterfeit bills at both Texas Burger restaurants were identical.
After checking the car’s registration, the police learned that
Brookins was responsible for paying the auto insurance. While
defendants were being detained, Brookins arrived in a separate car
and told the police that defendants were driving the car for him.
Although defendants were arrested, the same car surfaced again a
few days later when Brookins was stopped and arrested in Georgia
for possessing $8,000 in counterfeit money.
II.
Jones argues that the evidence, while sufficient to show that
he violated the law, was insufficient to sustain the verdict tying
him to the counterfeit conspiracy. According to Jones, the
evidence was insufficient because (1) the serial number on the
bill he attempted to pass at the Texas Burger did not match any
serial numbers on currency seized in July 1996 from Chevalier and
Brookins in Houston; (2) there was no evidence that he knew the
bill he passed was counterfeit; and (3) Graham’s testimony seldom
mentions Jones, because Graham was primarily associated with
Chevalier.
We review sufficiency of the evidence arguments in the light
3
most favorable to the verdict and will affirm if any rational trier
of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979). To establish a conviction for conspiracy to violate
counterfeit laws, the government had to prove that (1) Jones agreed
with another person to pursue the unlawful objective; (2) he
voluntarily agreed to join the conspiracy; and (3) one of the
members of the conspiracy performed an overt act in furtherance of
the conspiracy. See United States v. Cihak, 137 F.3d 252, 259-60
(5th Cir.), cert. denied, 119 S. Ct. 118, and cert. denied,
119 S. Ct. 203, and cert. denied, 119 S. Ct. 203 (1998). Although
the elements can be inferred from circumstantial evidence, mere
presence at the crime scene or association with participants is not
enough to establish guilt. See United States v. Velgar-Vivero,
8 F.3d 236, 241 (5th Cir. 1993).
There is sufficient evidence to support Jones’s conspiracy
conviction. From Graham’s testimony, the jury could reasonably
infer an agreement regarding defendants' passing of counterfeit
money and their plans to use a personal computer to make
counterfeit money. Jones’s actions at the drive-through window
also show evidence of an agreement and an overt act. Although
Jones argues he did not know the bill was fake, when he noticed the
Texas Burger employee stalling he began yelling for the employee to
return the bill in exchange for three $1 bills. He fled the scene
without securing his money or his order. When the police stopped
him moments later, they found a Texas Burger bag with a sandwich in
4
itSSpresumably the product of his successful passing of another $20
bill (with the same serial number) earlier that same day. There
was also evidence of an agreement among Jones, Chevalier, and
Brookins because, according to the testimony of a Secret Service
agent, all three were found in possession of bills with the same
serial number, and Graham testified that the three frequently
traveled together. From all this, the jury reasonably could infer
that Jones was an active participant in the conspiracy with
Chevalier and Brookins.
III.
Jones argues that the district court erred in denying his
motion in limine seeking the exclusion of evidence about Brookins’s
arrest in Georgia. Evidentiary rulings are reviewed for abuse of
discretion. See United States v. Franklin, 148 F.3d 451, 458 (5th
Cir. 1998). Even if error existed, the ruling will not be reversed
if it was harmless. See United States v. Lowrey, 135 F.3d 957, 959
(5th Cir. 1998). “A nonconstitutional trial error is harmless
unless it had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
Jones argues that he was not associated with Brookins and that
Brookins’s arrest in Georgia was not related to his case. The
evidence, however, demonstrates that the district court did not
abuse its discretion. Jones, Chevalier, and Brookins were found
with counterfeit money bearing the same serial number. When Jones
5
was pulled over after the Texas Burger incident, the police
discovered that Brookins was responsible for paying insurance on
the car; Brookins appeared on the scene and told police that Jones
was driving his car. Brookins’s arrest in Georgia, where police
uncovered the $8,000 in counterfeit currency, occurred just days
later while he was driving the same car Jones was driving at the
Texas Burger.
Jones next argues that any association between him and
Brookins ceased upon Jones’s arrest and incarceration. A defendant
is presumed to continue involvement in a conspiracy and is
responsible for continued acts of co-conspirators, even after his
arrest, unless he has affirmatively withdrawn from the conspiracy.
See United States v. Puig-Infante, 19 F.3d 929, 945 (5th Cir.
1994). “Because a defendant’s incarceration is not an affirmative
act on the part of a defendant, it cannot, by itself, constitute
withdrawal or abandonment.” Id.
Jones did nothing affirmatively to withdraw from the
conspiracy. To the contrary, he furthered the conspiracy while in
prison by writing letters to Chevalier persuading him to take the
blame for their counterfeiting. Therefore, we hold that the
district court did not abuse its discretion in denying Jones’s
motion in limine.
IV.
Jones contends that the district court erred in applying a
two-level adjustment for obstruction of justice. We review the
6
district court’s interpretation of the sentencing guidelines
de novo and its findings of fact for clear error. See United
States v. Greer, 158 F.3d 228, 233 (5th Cir. 1998). Section 3C1.1
of the sentencing guidelines provides for a two-level increase
“[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense.”
Comment 3(b) lists several examples of covered conduct, including
“committing, suborning, or attempting to suborn perjury.”
In Chevalier’s initial statement, he told the police that he
was not involved in the counterfeit ring. While the defendants
were incarcerated, however, Jones sent several notes to Chevalier
asking him to take responsibility and to deny Jones’s involvement.
In one note, Jones wrote,
Ted [Chevalier], you have got to tell them that I didn’t
know because they could give me three time loser which
starts at number 25. Please Ted don’t let me get three
strikes like this . . . . I need you to write a sworn
statement saying I didn’t have any knowledge that I was
only driving . . . .
Later, he wrote a second note stating,
I asked you to please tell them I had no knowledge of
that shit that I was just driving, if not, they’re going
to try me as a three time loser . . . . On the other
hand, if you tell them I didn’t know you will have to
take the case which would get you two to three if found
guilty of knowing it was fake. . . . If you sign a
statement saying I didn’t know they’ll have to let me go.
Finally, Jones sent a third note to Chevalier with a written
statement on it that Chevalier was supposed to copy in his own
handwriting as an affidavit vindicating Jones. After Chevalier had
received these notes, he changed his story and took responsibility
7
for the offense.
Jones argues that he was not willfully attempting to obstruct
justice or suborn perjury but was merely trying to persuade
Chevalier to tell the truth. The evidence, however, supports the
finding that Jones attempted to suborn perjury. Chevalier did not
change his statement until after receiving the notes from Jones.
The Secret Service agent investigating the crime testified that, in
his opinion, the purpose of Jones’s letters was unlawfully to
influence Chevalier’s testimony. Additionally, the presentence
report (“PSR”) recommended a two-level adjustment because of
Jones’s conduct.3 Therefore, the district court did not clearly
err in rejecting Jones’s arguments and finding that his letters
were an attempt to suborn perjury.
V.
Defendants contend that the district court erred in applying
U.S.S.G. § 2B5.1(b)(2), resulting in an increase in their base
offense level to 15. Under § 2B5.1(b)(2), the base level increases
to 15 if the defendant “manufactured or produced any counterfeit
obligation or . . . possessed or had custody of or control over a
counterfeiting device or materials used for counterfeiting . . . .”
A.
3
See United States v. Bermea, 30 F.3d 1539, 1575 (5th Cir. 1994) (“[A] PSR
generally bears sufficient indicia of reliability to be considered by the trial
court as evidence in making the factual determinations required by the sentencing
guidelines.”).
8
Jones argues that the court erred because there was no
evidence that he manufactured the counterfeit money, possessed any
counterfeiting materials, or conspired to manufacture counterfeit
currency. Brookins possessed counterfeit materials, and Chevalier
admitted to making some of the counterfeit notes. Jones states,
however, that there is no direct proof that he was in possession of
materials to produce counterfeit currency or that he made
counterfeit money. Thus, we must consider whether Jones’s sentence
can be increased because of his co-conspirators’s conduct.
If a district court “fail[s] to expressly find that the
defendant agreed to jointly undertake” a criminal activity, we
should reverse any resulting enhancement as clear error. See
United States v. Dean, 59 F.3d 1479, 1495 (5th Cir. 1995). As the
Dean court went on to point out, a “court’s finding of
foreseeability is irrelevant without concurrent findings that
[defendants] each agreed to a jointly undertaken criminal
activity.” Id. Therefore, if we agree with Jones that the
district court failed to find him part of the “jointly undertaken
activity” of manufacturing counterfeit currency, we cannot
attribute to him the reasonably foreseeable conduct of his co-
conspirators.
In Dean, the district court failed to make any finding that
the defendants each agreed to a jointly undertaken criminal
activity to carry additional amounts of crack cocaine. Following
United States v. Smith, 13 F.3d 860 (5th Cir. 1994), the Dean court
vacated the sentence enhancements and remanded for specific
9
findings on the “jointly undertaken activity.”
Jones objected to his enhancement for manufacturing at the
sentencing hearing, but the district court overruled this objection
at trial and adopted the recommendations of the PSR without making
its own specific findings. “[A] district court can adopt facts
contained in a PSR without inquiry, if those facts ha[ve] an
adequate evidentiary basis and the defendant does not present
rebuttal evidence.” United States v. Lowder, 148 F.3d 548, 552
(5th Cir. 1998). Therefore, the key inquiry is whether there is
adequate evidence to support the finding that Jones agreed to
participate in “the jointly undertaken activity” of manufacturing
currency (rather than just distributing it).
The government has pointed to only one piece of evidence
linking Jones to the manufacturing of the counterfeit currency: the
conversation among Jones, Chevalier, and the government’s witness
Graham. Graham admitted that Jones and Chevalier never said they
had already manufactured such currency. Instead, the conversation
remained in hypothetical terms of how one might manufacture
counterfeit currency. Additionally, Chevalier told officers that
he and Brookins manufactured the currency, but he did not mention
Jones’s involvement.
The district court did not clearly err in holding Jones
responsible for the jointly undertaken activity of manufacturing
counterfeit currency. Graham’s testimony supports the finding that
Jones was aware of a plan to manufacture currency using a personal
computer. Jones has not challenged the accuracy of Graham’s
10
testimony or Graham’s credibility as a witness. Jones’s early
involvement in discussions about manufacturing, when combined with
his close relations with Brookins and Chevalier, supports the
finding that Jones was part of a jointly undertaken activity to
manufacture and distribute counterfeit currency.
Having found that Jones agreed to participate in a jointly
undertaken activity, the district court also had to find that the
actions of Jones’s co-conspirators were reasonably foreseeable,
because there is no evidence that Jones participated in the
manufacturing process. Under § 1B1.3(a)(1)(B), one conspirator is
liable (for sentencing purposes only) for “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.”
To determine a defendant’s accountability for the conduct of
others, “that conduct must be both 'reasonably foreseeable' to the
defendant and within the scope of the defendant’s agreement.”
United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994); see
also U.S.S.G § 1B1.3 commentary 4. District courts must make a
specific factual finding that the defendant’s conduct was
reasonably foreseeable; as in the case of the “jointly undertaken
activity”, however, the finding of foreseeability can be met by
adopting the facts contained in a PSR “if those facts ha[ve] an
adequate evidentiary basis and the defendant does not present
rebuttal evidence.” Lowder, 148 F.3d at 552.
Jones’s PSR recommended that the court increase his sentence
pursuant to § 2B5.1(b)(2), and the court overruled his objection
11
and adopted the PSR. In his brief, Jones does not make specific
objections to the findings in the PSR. Thus, his objections are
inadequate. See Lowder, 148 F.3d at 552 (“Mere objections do not
suffice as competent rebuttal evidence.”). The PSR supports a
finding that it was foreseeable to Jones that his co-conspirators
were in possession of counterfeiting materials and manufactured
counterfeit notes. There is substantial evidence that defendants
agreed to make and pass counterfeit currency. Jones discussed with
Chevalier the possibility of purchasing computer hardware to make
counterfeit money, and together they passed counterfeit notes to
their neighbors and to employees at two Texas Burger restaurants.
Additionally, all three conspirators were found in possession of
counterfeit bills with the same serial number, and there was
evidence that all three frequently traveled together.
Accordingly, the district court did not clearly err in
attributing to Jones the actions of his co-conspirators to
manufacture counterfeit currency and in thereby enhancing his
sentence pursuant to § 2B5.1(b)(2). This is not a situation in
which, on appeal, the court will be “left to 'second guess' the
basis for the sentencing decision.” Carreon, 11 F.3d at 1231.
B.
Chevalier avers that there is no evidence tying him to the
production of counterfeit money. Given that Chevalier admitted to
authorities that he photocopied the counterfeit notes, however, the
district court did not clearly err in finding that he “manufactured
12
or produced” counterfeit currency.
Chevalier argues that the court erred in enhancing his base
sentence because the term “materials” used in § 2B5.1(b)(2) does
not include a paper cutter, straight edge, or razor and includes
only items such as paper, ribbons, and ink. This argument also has
no merit. A Secret Service agent testified that these items could
be used to manufacture counterfeit bills, and Chevalier’s own
statement that he personally “cut the counterfeit . . . using a
razor and a ruler” belies his assertion. Although this court has
never expressly addressed the issue, no circuit has adopted
Chevalier’s argument.4
Chevalier contends that the court erred in enhancing his
sentence because “(b)(2) does not apply to persons who merely
photocopy notes or otherwise produce items that are so obviously
counterfeit that they are unlikely to be accepted even if subjected
to only minimal scrutiny.” See U.S.S.G § 2B5.1(b)(2) commentary 4.
Because Chevalier raises this issue for the first time on appeal,
we review only for plain error. See United States v. Ravitch,
128 F.3d 865, 869 (5th Cir. 1997). To determine the quality of the
counterfeit notes, we consider the following facts, none of which
is dispositive:
(1) physical inspection during the trial or at the
sentencing hearing; (2) whether the counterfeit notes
were successfully passed; (3) the number of counterfeit
notes successfully passed; (4) the proportion of the
4
See e.g., United States v. Miller, 77 F.3d 71, 77 n.2 (4th Cir. 1996)
(finding that possession of glue, scissors, paper, and green ink satisfied
§ 2B5.1(b)(2)); United States v. Penson, 993 F.2d 996, 997-98 (8th Cir. 1990)
(finding that possession of a paper cutter satisfied § 2B5.1(b)(2)).
13
number of counterfeit notes successfully passed to the
number of notes attempted to be passed; and (5) the
testimony of a lay witness who accepted one or more of
the counterfeit notes or an expert witness who testified
as to the quality of the counterfeit notes.
United States v. Wyjack, 141 F.3d 181, 184 (5th Cir. 1998) (quoting
United States v. Miller, 77 F.3d 71, 75-76 (4th Cir. 1996)). The
counterfeit notes were not so obviously counterfeit as to be
unacceptable. Several witnesses testified that they did not
recognize the currency as counterfeit. Defense counsel argued to
the jury that defendants did not know they possessed counterfeit
money because it was a “darn good counterfeit bill” and that “many
of the[] bills were passed” and “most people didn’t recognize it as
being counterfeit.” So, the district court did not plainly or
clearly err in enhancing Chevalier’s sentence under § 2B5.1(b)(2).
VI.
Because we affirm the sentencing enhancements under
§ 2B5.1(b)(2) for manufacturing counterfeit currency and possessing
materials to manufacture counterfeit currency, defendants'
challenge to the sentencing enhancements for the $8,000 found with
Brookins, even if successful, would not affect their sentences.
Based on the § 2B5.1(b)(2) enhancements, both defendants will
receive a base offense level of 15 no matter whether their
enhancements for the $8,000 are affirmed. Therefore, we decline to
consider the challenge to the enhancements.
AFFIRMED.
14