United States v. Paul Carney , 498 F. App'x 417 ( 2012 )

Case: 11-31135 Document: 00512065240 Page: 1 Date Filed: 11/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 27, 2012
No. 11-31135
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PAUL EDWARD CARNEY,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CR-18-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Paul Edward Carney was convicted by a jury of possessing counterfeit
obligations of the United States in violation of 18 U.S.C. § 472. He argues that
the evidence was insufficient to support a jury finding that he possessed the
counterfeit obligations with the intent to defraud. He further argues that the
district court clearly erred in enhancing his sentence pursuant to U.S.S.G.
§ 2B5.1(b)(1)(B). We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-31135
We review de novo the sufficiency of the evidence against Carney.
See United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001). Under the
de novo standard of review, we view the evidence in the light most favorable to
the verdict and “determine whether . . . a rational jury could have found the
essential elements of the offense[ ] beyond a reasonable doubt.” Id. (internal
quotation marks and citation omitted). Carney erroneously contends that the
statute of conviction requires the Government to prove that the counterfeit
money was circulated; neither the statute’s plain language nor our caselaw
supports this contention. Section 472 criminalizes the behavior of any defendant
who, “with intent to defraud, passes or keeps in his possession or conceals” any
counterfeited obligation of the United States. §472. To establish the substantive
offense, the Government was required to show that Carney “passed or possessed
counterfeit money and that [he] did so with the intent to defraud.” See United
States v. Rice, 652 F.2d 521, 526 (5th Cir. 1981).
Viewed in the light most favorable to the jury verdict, the evidence
established beyond a reasonable doubt that Carney was found in possession of
$8,955 in counterfeit bills. The evidence further established that Carney knew
the money was counterfeit, as he admitted to manufacturing it during his
interview with the Secret Service. The jury was free to discredit Carney’s
testimony to the contrary, particularly in light of the circumstantial evidence of
his guilty knowledge. See Alarcon, 261 F.3d at 421; Rice, 652 F.2d at 526. The
circumstantial evidence supporting his guilty knowledge consisted of the
condition in which the currency was discovered – in uncut sheets stashed in the
rafters of his shed – as well as the discovery of poker chips on top of his dryer,
which testimony established is used to condition counterfeit bills.
With regard to the element of intent to defraud, the Government was
required to prove that the counterfeit currency was possessed with the intent “to
cheat someone by making that person think the money was real.” See FIFTH
CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 2.25 (2001). Carney’s
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No. 11-31135
intent to defraud was established by his statement to the Secret Service that he
intended to use the counterfeit currency to purchase narcotics and in the
prostitution trade. In light of the preceding, the evidence was sufficient to
support a finding beyond a reasonable doubt that Carney possessed the
counterfeit currency with the intent to defraud. See Rice, 652 F.2d at 526.
Carney additionally challenges his Section 2B5.1(b)(1)(B) sentencing
enhancement on the basis that only those counterfeit notes of passable quality
should have been included in the total face value. The district court’s
determination of the quality of counterfeit notes in determining whether to apply
this enhancement is a factual finding, which is subject to the clearly erroneous
standard of review. United States v. Bollman, 141 F.3d 184, 186-87 (5th Cir.
1998). A finding is not clearly erroneous “as long as the determination is
plausible in light of the record as a whole.” United States v. Ismoila, 100 F.3d
380, 396 (5th Cir. 1996).
In this case, the district court examined the counterfeit notes, it heard
expert trial testimony regarding their quality, it heard sentencing testimony
that some of the bills had been circulated, and it discounted those bills that were
obviously not passable. Based on our precedent, it cannot be said that the
district court clearly erred in applying the Section 2B5.1(b)(1)(B) enhancement.
See United States v. Wyjack, 141 F.3d 181, 184 (5th Cir. 1998); Bollman, 141
F.3d at 186-87.
AFFIRMED.
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