United States v. Kelly

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 24, 2000
• Docket: 97-4481
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0065P (6th Cir.) File Name: 00a0065p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 97-4481 v.  > JOSEPH KELLY,  Defendant-Appellant.  1

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 97-00171—Sam H. Bell, District Judge. Submitted: December 8, 1998 Decided and Filed: February 24, 2000 Before: NELSON and DAUGHTREY, *Circuit Judges; SARGUS, District Judge.

* The Honorable Edmund A. Sargus, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 United States v. Kelly No. 97-4481

_________________ COUNSEL ON BRIEF: George G. Keith, KEITH, GODWARD, CLARK & FRISBY, Cuyahoga Falls, Ohio, for Appellant. Gary D. Arbeznik, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. Joseph Kelly, Springfield, Missouri, pro se. _________________ OPINION _________________ DAVID A. NELSON, Circuit Judge. This is an appeal from convictions for counterfeiting United States currency, a violation of 18 U.S.C. § 471, and conspiracy to make counterfeit currency with intent to defraud, a violation of 18 U.S.C. § 371. The defendant contends that his indictment was multiplicitous, that evidence of prior convictions was admitted at trial improperly, and that the evidence against him was insufficient to warrant submission of the case to the jury. The defendant also challenges his sentence, contending that the trial court erred both by calculating the guideline sentence range on the basis of a quantity of fake currency seized before the manufacturing process was complete and by enhancing his guideline offense level for a leadership role he denies having played. Unpersuaded, we shall affirm both the conviction and the sentence. I In the early 1990s the defendant, Joseph Kelly, served time in a federal prison in California on a conviction for counterfeiting. While at the prison Kelly conducted a class in offset printing – a craft the practice of which got him into prison in the first place. One of the inmates who attended Kelly’s class was a man named Anthony Lolakis. No. 97-4481 United States v. Kelly 3

Kelly and Lolakis allegedly discussed the possibility of establishing a counterfeiting operation in Ohio, Lolakis’ home state, after they completed their sentences. Lolakis testified that Kelly wanted to set up operations outside of California, where he said he was well known to the authorities as a counterfeiter. Kelly testified that, on the contrary, he told Lolakis he would not get involved in counterfeiting again. Be that as it may, the men renewed their acquaintance after their release from prison. Although there is some dispute as to who initiated the contact, it is clear that Lolakis, who was back in Ohio, sent money to Kelly in California for the purchase of ink and a camera. Kelly shipped the supplies to Lolakis and then came to Ohio in person, ostensibly to visit his mother in Cincinnati. In the course of this stay he met Lolakis in Youngstown and helped him buy a printing press. Kelly had brought printing plates, developer, and other supplies with him from California, and he purchased additional supplies in Ohio once the counterfeiting operation was underway. Kelly left Youngstown at one point to visit his mother, subsequently returning to Youngstown. He then departed for California, apparently, but returned to Youngstown once again, making a total of three visits to Lolakis. During this time Lolakis and Kelly produced $2.6 million in counterfeit bank notes. The fake bills were passed first in Michigan and then in Ohio by other members of the conspiracy. Unlike his fellow conspirators, Kelly elected to take his chances before a jury. The jury found him guilty of both counterfeiting and conspiracy, as we have seen, and the court sentenced him to imprisonment for 125 months for counterfeiting and 60 months for conspiracy, the latter sentence to run concurrently with the former. Kelly’s appeal was originally dismissed because of a faulty notice of appeal, see United States v. Webb, 157 F.3d 451 (6th Cir. 1998), cert. denied, 119 S. Ct. 2019 (1999), but the appeal has been reinstated in light of our subsequent decision in Dillon v. United States, 184 F.3d 556 (6th Cir. 1999). 4 United States v. Kelly No. 97-4481 No. 97-4481 United States v. Kelly 9

II determination under a “clear error” standard. See Stanley, 23 F.3d 1085. A. Admission of Evidence of Prior Convictions Although the sentencing guidelines do not specifically Kelly filed a pretrial motion in limine to exclude from the define the term “leader,” courts are invited to consider, in this government’s case in chief any evidence of his previous connection, such factors as the right to a larger share of the counterfeiting convictions – three in number – and the profits, the degree of participation in planning or organizing conduct underlying those convictions. The record does not the activity, the nature of the defendant’s participation, the disclose that the district court ever ruled on this motion. nature and scope of the criminal activity, and the exercise of decision making authority. See U.S.S.G. § 3B1.1 application Lolakis testified during the presentation of the note 3. In the case at bar the record shows that Kelly was to government’s case that he met Kelly in prison in 1992 and receive a full 25 percent of the profits, while Lolakis was to that Kelly had been incarcerated for counterfeiting. No split the rest with the six men recruited to pass the counterfeit objection was made to this testimony. In the absence of a bills. Kelly was involved in plans for the operation, and he contemporaneous objection we must apply a “plain error” selected and purchased the equipment and supplies used. He standard of review unless the motion in limine operated to was also responsible for printing the counterfeit currency; it preserve the issue for appeal. In that event we must apply an was Kelly’s expertise alone that made the operation possible. “abuse of discretion” standard. See Rule 103, Fed. R. Evid., The fact that Lolakis also took a leadership role does not and United States v. Levy, 904 F.2d 1026, 1029-30 (6th Cir. preclude a leadership adjustment in Kelly’s offense level. See 1990), cert. denied, 498 U.S. 1091 (1991). U.S.S.G. § 3B1.1 application note 4 (“There can, of course, be more than one person who qualifies as a leader or Faced with similar circumstances, a panel of this court organizer of a criminal association or conspiracy”). We find determined, in an unpublished opinion, that a motion in no clear error in the district court’s determination. limine does not preserve evidentiary questions for appeal. We find the panel’s reasoning persuasive: AFFIRMED. “As a matter of policy, the objection requirement of Fed.R.Evid. 103 is intended to allow the trial court to fix errors in its decision to admit or exclude evidence on the spot, thus preventing errors that could easily be alleviated without recourse to the appellate courts. A pre-trial motion in limine is not as effective a means of alerting the trial judge to evidentiary problems as a contemporaneous motion at trial. This proposition seems particularly true where, as here, the court did not even rule on the motion in limine. Thus, we find that a motion in limine, especially one that is not ruled upon, is insufficient to preserve an objection to the admission of evidence for appeal.” Burger v. Western Kentucky Navigation, Inc., No. 91-5221, 1992 U.S. App. LEXIS 8268, *8 (6th Cir. Apr. 15, 1992). 8 United States v. Kelly No. 97-4481 No. 97-4481 United States v. Kelly 5

currency before it can be considered counterfeit. See United Decisions from other circuits to the same effect include States v. Taftsiou, 144 F.3d 287, 290 (3d. Cir.), cert. denied, Petty v. Ideco, Div. of Dresser Indus., Inc., 761 F.2d 1146, 525 U.S. 899 (1998), and cases cited therein. These cases 1150 (5th Cir.1985) (“[A] party whose motion in limine is deal with the substantive crime of counterfeiting, however, overruled must renew his objection when the error he sought and not with the sentencing guidelines’ rather expansive to prevent is about to occur at trial”), and Adams v. Fuqua instructions on what sort of “counterfeit” currency should be Indus., 820 F.2d 271, 274 (8th Cir.1987) (noting in dictum counted in calculating a convicted counterfeiter’s offense that “a motion in limine does not ordinarily preserve error [in level. evidentiary rulings] for appellate review. . .”). But see American Home Assurance Co. v. Sunshine Supermarket, As used in the relevant guideline, “‘[c]ounterfeit’ . . . means Inc., 753 F.2d 321, 324 (3rd Cir.1985), and Thronson v. an instrument that purports to be genuine but is not, because Meisels, 800 F.2d 136, 142 (7th Cir.1986). it has been falsely made or manufactured in its entirety [as opposed to genuine instruments that have merely been The district court’s allowance of Lolakis’ unobjected-to altered].” U.S.S.G. § 2B5.1 application note 3. We have not testimony regarding Kelly’s prior conviction does not, we had occasion to construe this definition in a published believe, constitute plain error. The information was integral opinion, but several of our sister circuits have construed it to to the facts underlying the indictment and may well have been require something less than bills of “passable” quality. See indicative of Kelly’s specific intent to defraud, an element of United States v. Webster, 108 F.3d 1156, 1158 (9th Cir. the charged crimes. See, e.g., United States v. Benton, 852 1997). At least two circuits have found that bills printed on F.2d 1456, 1468 (6th Cir.), cert. denied, 488 U.S. 993 (1988) only one side “purported to be genuine.” See United States v. (allowing evidence of prior acceptance of bribes to show Ramacci, 15 F.3d 75, 78 (7th Cir. 1994), and United States v. intent to accept drug protection money). Were it not for Fed. Lamere, 980 F.2d 506, 509, 513-14 (8th Cir. 1992). The R. Evid. 403, therefore, the evidence would almost certainly history of § 2B5.1(b)(1) supports this interpretation; a have been admissible under Rule 404(b). See United States proposed amendment that would have excluded defective v. Crachy, 800 F.2d 83, 87 (6th Cir. 1986), cert. denied, 479 items from consideration was rejected. See Webster, 108 F.3d U.S.1042 (1987), and United States v. Hamilton, 684 F.2d at 1158, Ramacci, 15 F.3d at 78, and Lamere, 980 F.2d at 380, 384 (6th Cir.), cert. denied, 459 U.S. 976 (1982). Rule 512. We agree with the view set forth in the cited cases. 403 permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair Kelly’s unfinished counterfeit notes lacked only the prejudice; viewing the record as a whole, we cannot say the Treasury seal, Federal Reserve seal, and Federal Reserve district court was clearly required to find that any such danger numbers. The bills were near enough to completion, we substantially outweighed the probative value of the evidence believe, to “purport to be genuine.” The district court did not here. See United States v. Khan, 969 F.2d 218, 222 (6th Cir. err in counting the entire $2.6 million. 1992). E. Adjustment for Leadership Role B. Sufficiency of the Evidence Kelly’s final argument is that his guideline offense level “The standard for evaluating claims that a conviction is not should not have been adjusted under U.S.S.G. § 3B1.1(c) on supported by sufficient evidence presents a very difficult the strength of his supposed “leadership role” in the hurdle for the criminal appellant. . . . ‘The relevant question conspiracy. We review the district court’s leadership role is whether, after viewing the evidence in the light most 6 United States v. Kelly No. 97-4481 No. 97-4481 United States v. Kelly 7

favorable to the prosecution, any rational trier of fact could also charged and proved as substantive offenses.” Pinkerton have found the essential elements of the crime beyond a v. United States, 328 U.S. 640, 644 (1946). reasonable doubt.’” United States v. Maxwell, 160 F.3d 1071, 1077 (6th Cir. 1998) (quoting Jackson v. Virginia, 443 U.S. Although it is well established that a conspiracy charge can 307 (1979) (emphasis in original)). legitimately be added to a substantive charge, there are certain exceptions to this general rule: Kelly contends that the government’s evidence was insufficient because the co-conspirators who testified against “One is where the agreement of two persons is necessary him were, in light of their confessed crimes, so unreliable that for the completion of the substantive crime and there is no rational trier of fact could have believed what they said. no ingredient in the conspiracy which is not present in But determining the credibility of witnesses is a task for the the completed crime. . . . Another is where the definition jury, not this court. See United States v. Hilliard, 11 F.3d of the substantive offense excludes from punishment for 618, 620 (6th Cir. 1993), cert. denied, 510 U.S. 1130 (1994). conspiracy one who voluntarily participates in another’s The jury was obviously entitled to accept the testimony of crime.” Id. at 643 (citations omitted). Kelly’s several co-conspirators and reject Kelly’s own testimony. Other witnesses identified Kelly as the purchaser The charges against Kelly did not come within any of the of the printing press and supplies, moreover, and his exceptions to the rule. fingerprints were retrieved from several of the plates used in the press. The evidence of Kelly’s guilt was more than Kelly further asserts, in connection with his multiplicity sufficient to support a conviction. argument, that the language of the conspiracy charge shifted the burden of proof to him and that the district court should C. Multiplicity of the Indictment have made a finding prior to trial as to when the alleged conspiracy began. These assertions are without merit. Kelly contends that Counts I and II of the indictment against him were multiplicitous because the overt acts of the D. Calculation of Sentence Based on Partially- conspiracy recited in Count I were the same acts that formed Manufactured Counterfeit Currency the basis for the substantive counterfeiting crime alleged in Count II. We find no merit in this argument. In calculating Kelly’s guideline sentence range, the district court used the full $2.6 million in counterfeit currency that A defendant may be charged with multiple offenses based Kelly and Lolakis produced. When Kelly left Ohio for the on the same underlying conduct as long as each offense last time, however, the manufacturing process was incomplete requires proof of an element not required by the other. See as to a portion of this total. Kelly argues that only the bogus Blockburger v. United States, 284 U.S. 299, 304 (1932). In $15,000 introduced at trial should be counted – an argument Kelly’s case the conspiracy charge required proof of an acceptance of which would mean a 3-level increase in his agreement between two or more persons – an element not offense level as opposed to a 13-level increase. See U.S.S.G. required to be shown in proving the substantive counterfeiting § 2F1.1. Because the argument raises an issue of guideline charge – while the latter charge, unlike the former, required interpretation, our review is de novo. See United States v. proof that the defendant actually manufactured counterfeit Stanley, 23 F.3d 1084, 1085 (6th Cir. 1994). notes. The Supreme Court has explicitly stated that “it is not material that overt acts charged in the conspiracy count[] were Kelly draws our attention to a number of cases holding that fake currency must bear an adequate resemblance to real