United States v. Edward Illsley ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4373
EDWARD THOMAS ILLSLEY, a/k/a
James H. Jenkins,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-354)
Submitted: January 19, 1999
Decided: August 16, 1999
Before WIDENER and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
J. Paul Gregorio, Richmond, Virginia; Russell Allen, Richmond, Vir-
ginia, for Appellant. Helen Fahey, United States Attorney, Sara E.
Flannery, Special Assistant United States Attorney, Richmond, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Edward Thomas Illsley was convicted by a jury of two counts of
possession of counterfeit securities in violation of 18 U.S.C. § 513(a)
(1994), one count of production of a false identification document in
violation of 18 U.S.C.A. § 1028(a)(1) (West Supp. 1998), and one
count of possession of a firearm by a convicted felon in violation of
18 U.S.C.A. § 922(g)(1) (West Supp. 1998). He was sentenced to a
thirty-seven month term of imprisonment. He appeals both his convic-
tion and his sentence. Finding no reversible error, we affirm.
Illsley and his wife co-owned a second-hand store. A customer pur-
chased from their store a luggage set that had belonged personally to
the Illsleys. After returning home, the woman found in the luggage
what appeared to be American Express Travelers Checks and a Mary-
land driver's license in the name of James Heath Jenkins but with Ills-
ley's photograph. She contacted law enforcement authorities who
determined that the travelers checks were counterfeit and the driver's
license was not authentic. Pursuant to a search warrant the authorities
searched Illsley's home and located additional counterfeit travelers
checks, some of which had been initially endorsed in the name of
James H. Jenkins; additional false identification documents in the
name of James H. Jenkins, such as a social security card and birth cer-
tificate; computer equipment; and, in a master bedroom nightstand, a
handgun.
Illsley argues that the evidence was insufficient to convict him. In
reviewing for sufficiency of the evidence, the standard normally
employed by this court is whether the evidence was"sufficient for a
rational trier of fact to have found the essential elements of the crime
beyond a reasonable doubt." United States v. Brewer, 1 F.3d 1430,
1437 (4th Cir. 1993); see Glasser v. United States, 315 U.S. 60, 80
(1942). The evidence is viewed in the light most favorable to the gov-
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ernment. See id. However, if at trial the defendant did not move for
judgment of acquittal under Fed. R. Crim. P. 29,"our examination is
technically limited to determining whether or not manifest injustice
would occur." United States v. Stevens, 817 F.2d 254, 255 n.1 (4th
Cir. 1987) (citation omitted). The Government indicates that Illsley
did not file a Rule 29 motion, and neither the record nor Illsley's brief
suggests that the Government's assertion is incorrect. (Appellee's Br.
at 6 n.3). Therefore, our review is limited to whether there was so lit-
tle evidence to support Illsley's conviction that it is manifestly unjust.
Illsley alleges that the evidence was insufficient to establish intent
to deceive, an essential element of his conviction under § 513(a).
However, the Government established that Illsley had created several
counterfeit travelers checks, some of which had been initially
endorsed with the name of James H. Jenkins. Illsley possessed a
fraudulent driver's license, birth certificate, and social security card,
all in the name of James H. Jenkins. We find that a conviction based
on this evidence is not manifestly unjust. See United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989) (finding that circum-
stantial evidence need not exclude every reasonable hypothesis of
innocence).
Illsley next alleges that the Government failed to establish that the
travelers checks Illsley produced were of sufficient quality to pass as
counterfeit.* However, there was testimony at trial that counterfeit
instruments of the same quality as Illsley's are accepted in trade. Fur-
ther, the customer who found the travelers checks did not realize they
were counterfeit. We find that Illsley's conviction based on such evi-
dence is not manifestly unjust.
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*Illsley relies on two cases in which this court found, as a matter of
law, that the instruments were not counterfeit because they were of such
poor quality that a reasonable person would not accept them as genuine.
See United States v. Ross, 844 F.2d 187, 190 (4th Cir. 1988); United
States v. Smith, 318 F.2d 94, 95 (4th Cir. 1963). However, the securities
in Ross and Smith were crude photocopies of U.S. currency, whereas Ills-
ley's imitations were produced by relatively sophisticated computer
equipment. Whether the instruments in this case were counterfeit was a
question properly given to the trier of fact.
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Illsley also disputes the finding that he knowingly"produced" a
false driver's license. See 18 U.S.C. § 1028(a)(1). He contends that
the Government merely established that he possessed false identifica-
tion documents. We do not agree. The evidence at trial established
that Illsley possessed a valid drivers license, with the name and photo-
graph of Jamal Jenkins Heath. The evidence also established that
there were two imitation drivers licenses with Illsley's photograph,
but the name of James Heath Jenkins; one was found in the luggage,
a second was found in Illsley's house. A rational trier of fact could
conclude based on such evidence that Illsley participated in producing
the fraudulent drivers licenses; therefore, his conviction for violating
§ 1028(a)(1) was not manifestly unjust.
Illsley challenges his conviction for possession of a firearm by a
convicted felon by arguing that the Government failed to establish
that Illsley possessed the gun found in the bedroom nightstand. Illsley
contends that the gun belonged to his wife. However, even if the gun
belonged to Illsley's wife, it was kept in the bedroom they shared.
Constructive possession exists when "the defendant exercised, or had
the power to exercise, dominion and control over the item." United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Constructive pos-
session may be shown by circumstantial evidence. See United States
v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-6989). We find
that it was not manifestly unjust for the jury to find that Illsley con-
structively possessed a firearm.
Finally, Illsley alleges that the district court erred in applying a
two-level sentence enhancement for "more than minimal planning"
under U.S. Sentencing Guidelines Manual§ 2F1.1(b)(2)(A) (1997).
The district court's determination is a factual determination reviewed
for clear error. See United States v. Withers , 100 F.3d 1142, 1147 (4th
Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3631 (Mar. 17,
1997) (No. 96-7884). Illsley produced over fifty counterfeit American
Express Travelers Checks, some of which had been initially endorsed
in the name of James H. Jenkins. Illsley had also created several false
identification documents in the name of James H. Jenkins. We find
that the district court did not clearly err when it determined that Illsley
engaged in more planning than is typical to commit counterfeiting in
a simple form. See USSG § 1B1.1, comment. (n.1(f)).
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Accordingly, we affirm Illsley's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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