United States v. Tape

                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 26, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 02-11216
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JEAN MARCEL TAPE, also known as Abdul Akapea,
also known as Didier Sorel, also known as
Denika Tape, also known as Jean Marcel Denika
Tape, also known as Marcel Tape, also known as
Jean Taradenika, also known as Harry Otte,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 3:02-CR-167-1-L
                         --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jean Marcel Tape pleaded guilty pursuant to a plea agreement

to conspiring to present or offer false and fictitious

instruments disguised as United States Federal Reserve notes with

the intent to defraud, in violation of 18 U.S.C. §§ 371 and

514(a)(2).     At sentencing, the district court imposed a six-level

adjustment pursuant to U.S.S.G. § 2B1.1(b)(8)(C) based upon the

     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-11216
                                -2-

use of “sophisticated means” in the offense and sentenced him to

nine months’ imprisonment, to be followed by a three-year term of

supervised release.   Tape specifically reserved his right to

appeal the imposition of a sophisticated-means adjustment, and he

presents it now before this court.   The determination whether a

defendant used “sophisticated means” to engage in fraud is a

factual finding which this court reviews for clear error.     See

United States v. Clements, 73 F.3d 1330, 1340 (5th Cir. 1996).

     Tape contends that the district court erred in imposing the

sentencing adjustment because the evidence reflects that Tape did

not personally engage in any sophisticated actions within the

scheme and because he admitted that he did not understand the

chemical processes used in the attempt to defraud the intended

victim.   Under U.S.S.G. § 1B1.3(a)(1)(B), a conspirator is

responsible for “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal

activity.”   Although Tape’s coconspirator conducted the chemical

processes used to change the “black money” and “white money” into

United States currency, Tape could reasonably foresee the use of

these actions, and his limited personal involvement does not

affect the application of the sophisticated-means adjustment.

     Tape also contends that the district court committed clear

error in imposing the adjustment because the scheme was not as

complex as the intricate financial transactions found to be

“sophisticated” in other cases.   Tape also notes that the scheme
                           No. 02-11216
                                -3-

was unsuccessful.   According to the evidence presented at

sentencing, Secret Service chemists could not fully explain the

chemical processes used in the plan.   Tape has not established

that the use of chemical processes not easily understood by

scientists constituted clear error.    Consequently, the judgment

of the district court is AFFIRMED.