U.S. v. Acosta ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
NO. 91-5690
______________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
RUDOLPH ACOSTA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
( August 27, 1992)
Before JONES and WIENER, Circuit Judges, and LITTLE, District
Judge.1
LITTLE, District Judge:
Appellant, Rudolph Acosta, was found guilty of five counts of
passing counterfeit currency and one count of attempting to pass a
counterfeit bill. On appeal, Acosta asserts that the evidence was
insufficient to support his conviction on Counts 1, 2, 4 and 6. He
also takes issue with the district court's increase of his offense
level, positing that there was no evidence to support the court's
conclusion that Acosta was responsible for more than nine
negotiations of counterfeit currency. Finding no reversible error,
1
District Judge of the Western District of Louisiana,
sitting by designation.
1
we affirm the convictions. As to the sentencing, we vacate and
remand for the following reasons.
I.
There is no serious dispute as to the facts. In early
December of 1990, Rudolph Acosta attempted to purchase merchandise
of an insignificant value from a San Antonio, Texas convenience
store. The $20.00 bill tendered by Acosta appeared fishy to the
clerk. She refused to accept it. Acosta replaced the questionable
$20.00 with another seemingly valid bill, completed the sale, and
departed the premises. The clerk remembers Acosta telling her that
he probably got the bogus bill from the Desperado, a local
nightclub.
Suspecting that Acosta intended to pass the counterfeit
currency, the store personnel notified local police. The
authorities went to the neighborhood and found Acosta in a
laundromat. When questioned, Acosta surrendered the invalid bill,
and again opined that he had probably acquired the money from a
local nightclub.
Government agents analyzed the bill and concluded that it was
in fact counterfeit. After noting all of the irregularities of the
bill, the government assigned it circular number, "14923." Thus,
with this identification number, bills with the same
characteristics passed in other locales could be traced to this
same illegal batch.
Evidence was presented that Acosta was in a video rental store
on 23 November 1990 and rented a film for cash. The daily cash
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receipts included a No. 14923 counterfeit bill. There was no
direct evidence linking Acosta to the counterfeit currency. On 25
November 1990, Acosta returned to the video rental store and rented
a video for cash. Again, the deposit included a counterfeit $20.00
bill, No. 14923. As in the prior transaction, there was no
evidence presented to connect Acosta directly to the counterfeit
currency.
In December of 1990, and January of 1991, the cafeteria
operating in the hospital where Acosta was employed deposited two
counterfeit twenties, both of which were No. 14923 bills. A
cafeteria employee testified that Acosta frequently purchased items
of small value and paid for them with $10.00 or $20.00 bills. On
New Year's Day, 1991, someone passed a "14923" $20.00 bill for
merchandise at a Diamond Shamrock store in San Antonio. The store
manager testified that Acosta had been in the store on the day the
counterfeit $20.00 was passed and had purchased one package of
cigarettes with a $20.00 bill.2 Thus, there is evidence placing
Acosta at the store and paying for an item with a $20.00 bill. The
other transactions (the two video rentals and the two cafeteria
purchases) are quite another story, however. There is no evidence
that Acosta paid for either video with a $20.00 bill, nor is there
evidence that Acosta was in the cafeteria at any material time and
paid for his purchases with a $20.00 bill. In short, according to
Acosta, the evidence is insufficient to support convictions on
2
Acosta may not agree with the jury finding as to the
cigarette purchase transaction, but he does not appeal that
adverse result.
3
Counts 1, 2, 4 and 6.
Our standard of review for convictions based upon evidence
allegedly insufficient to support the verdict is well known. We
view the evidence, and all reasonable inferences to be drawn
therefrom, in the light most favorable to the verdict. United
States v. Triplett, 922 F.2d 1174, 1177 (5th Cir. 1991) cert.
denied, 1991 U.S. App. LEXIS 2995, 111 S. Ct. 2245, 114 L. Ed. 2d 486
(1991). We must determine if a rational jury could have found
Acosta guilty beyond a reasonable doubt. Not every reasonable
theory of innocence need be excluded. All credibility choices are
made in favor of the government. United States v. Montemayor, 703
F.2d 109, 115 (5th Cir. 1983) cert. denied, 464 U.S. 822, 104 S. Ct.
189, 78 L. Ed. 2d 97 (1983); United States v. Green, No. 91-3573,
5420, 5424 (5th Cir. 1992); United States v. Breque, No. 91-5625,
5440, 5445 (5th Cir. 1992).
Acosta's complaint that no direct evidence links him to the
counterfeit twenties, even if true, does not carry the day for
reversal. Direct evidence of the defendant's guilt is not
required. It is sufficient if the guilt is proved beyond a
reasonable doubt by circumstantial evidence alone. United States
v. Ivey, 949 F.2d 759, 766-767 (5th Cir. 1991).
To establish a violation of 18 U.S.C. § 472, the government
must prove that the defendant knew the bills were counterfeit and
that the defendant intended to defraud when he negotiated the
bills. U.S.A. v. Lemaire, 712 F.2d 944, 947 (5th Cir. 1983), cert.
denied, 464 U.S. 1012, 104 S. Ct. 535, 78 L. Ed. 2d 715 (1983).
4
As we have remarked, Acosta did purchase a pack of cigarettes
with a $20.00 bill. A counterfeit No. 14923 $20.00 bill was
included in the vendor's bank deposit for that day. It is admitted
that Acosta possessed a "14923" bill when he conducted a
convenience store transaction in December of 1990. Acosta ate at
the hospital cafeteria and frequently paid for food items with
$20.00 bills. On two occasions counterfeit bills were among the
cafeteria's deposits. Acosta on two occasions paid cash for film
rentals. On those two occasions, No. 14923 bills were deposited by
the film store. Acosta's known and admitted possession of one bad
bill, coupled with his purchase of a package of cigarettes with a
$20.00 bill, tethered to his presence at the store while making a
cash purchase where "14923" bills were discovered, and linked to
his habit of paying for cafeteria food with $20.00 bills produce
circumstances sufficient to support Acosta's conviction on all
counts.
An additional piece of evidence, when considered by the jury,
fortifies the verdict. Over Acosta's objection, the jury was
informed that Acosta's brother had been charged with passing
"14923" bills in the state of Michigan. On appeal, Acosta argues
that possession by his brother of identical counterfeit currency is
irrelevant in Acosta's Texas based criminal trial. Evidence of
frequent interstate telephonic communications between the brothers
was also introduced. The introduction of the evidence was not
irrelevant. Acosta's brother's possession of identical counterfeit
currency and Acosta's frequent communication with his brother may
5
well convince a trier of fact that the defendant's brother was his
source of supply. We note that one of the characteristics of the
"14923" money is that on many bills the serial numbers are
identical. Thus, the Michigan Acosta possessed some bills with
serial numbers identical to a bill possessed by the Texas Acosta.
Another reason for admitting evidence of the filial affinity is
Acosta's denial that he communicated regularly with his northern
brother. The phone tolls cause one to conclude otherwise.
But a finding of relevancy will not end our analysis. All
evidence is not relevant and all relevant evidence is not per se
admissible. Rule 403 of the Federal Rules of Evidence requires
that even relevant evidence be weighed before admission.
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
Fed. R. Evid. 403.
We ask the question, "Did unfairness result when evidence of
the brother's criminal conduct was admitted?" We think not.
Counsel for defendant Acosta, on cross-examination of the
government's witness, established that no proof was presented
connecting defendant Acosta to any crimes committed by his brother.
Moreover, the jury was instructed not to convict Acosta based on
the guilt of any person not on trial. We do not find that the
trial court abused its discretion in admitting evidence of the
defendant's brother's possession of counterfeit currency or
evidence of interstate phone calls. United States v. Gonzalez-
6
Lira, 936 F.2d 184, 191 (5th Cir. 1991).
II.
The remaining issue to which we must turn our attention is the
21 month prison sentence imposed by the trial court. In its
application of the sentencing guidelines, the district court made
an upward adjustment of the offense level because Acosta allegedly
passed more than $2,000.00 in counterfeit currency. The case in
chief only involved $120.00. The additional $1,880.00 stems from
the testimony at the sentencing hearing of government agent Edna
Perry. Perry testified that 107 counterfeit "14923" $20.00 bills
were passed in the San Antonio area and attributed those
transgressions to Acosta. If the Secret Service's evidence of
Acosta's trafficking in forged $20.00 bills is accepted, the face
value of the counterfeit transactions would exceed $2,000.00. The
offense level would be increased by one step, according to the
guidelines. This increase causes a concomitant increase in the
imprisonment range. Without this addition, the range is 12-18
months. With the enhancement, the imprisonment range is 15-21
months.
Our mission in a dispute concerning an appropriate sentence is
well established.
Review of sentences imposed under the guidelines is
limited to a determination whether the sentence was
imposed in violation of law, as a result of an incorrect
application of the sentencing guidelines, or was outside
of the applicable guideline range and was unreasonable.
18 U.S.C. § 3742(e). We accept findings of fact that are
not clearly erroneous. United States v. Goodman, 914
F.2d 696, 697-988 (5th Cir. 1990).
U.S. v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991).
7
Appellant's position is that the trial court was clearly
erroneous when it accepted, as a fact, the assertion that appellant
was responsible for an additional 107 utterances of "14923" $20.00
bills. The evidence of Acosta's association with the 107
transactions springs from the testimony, as we have said, of Secret
Service Agent Edna Perry.
Agent Perry testified at the sentencing hearing that she had
attended the trial of Art Acosta, appellant's brother, the week of
20 May 1991 in Detroit, Michigan. On direct examination, Perry
recounted the testimony of the printer of the counterfeit bills,
who stated that he had sent Art Acosta $60,000.00 in "14923"
counterfeit bills. She further testified that 107 bills with the
same defects were recovered in the South Texas area. On cross,
however, Agent Perry stated that she had no knowledge of any
evidence introduced at either the Michigan trial or the appellant's
trial that a package was sent by the Michigan Acosta and received
by the Texas Acosta.
The presentence report, adopted by the trial court and based
on Perry's testimony, indicated that there had been 107 passes of
counterfeit currency in the South Texas area. At the sentencing
hearing, Agent Perry was not sure how many of the passes in the San
Antonio area had actually been investigated by authorities. She
could only estimate that there had been more than nine
investigations completed. More importantly, Agent Perry testified
that of the many establishments where "14923" bills were recovered,
in only nine cases did employees identify appellant as having ever
8
been in the establishment. The appellant was later charged by
superseding indictment with seven counts of passing counterfeit
currency, one of which was dismissed with prejudice. The jury
convicted the defendant on all six of the remaining counts in the
indictment. No link was ever established between the appellant and
the other 98 passes of counterfeit bills in the South Texas area.
The offense level calculations that include the nine bills
found at the establishments where the appellant was positively
identified as a customer can be supported by the record.
Attributing the remaining 98 passes of similar counterfeit bills to
the defendant, without corroborating identification, or in most
cases, even an investigation, cannot be supported by the trial
record, the presentence report or the evidence taken at the
sentencing hearing and, in this court's opinion, is clearly
erroneous. In reviewing a challenge to a sentence under the
Guidelines, we must accept the factual findings of the district
court unless clearly erroneous, but "[a] finding of fact will not
satisfy this deferential standard, 'when, although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been made.'" U.S. v. Mitchell, No. 91-1864 (5th Cir. 1992). We
have held "that the party seeking an adjustment in the sentence
level must establish the factual predicate justifying the
adjustment. We have also held that the appropriate analysis for
the district court is whether the party seeking to adjust sentence
level has proved by a preponderance of the relevant and
9
sufficiently reliable evidence the facts necessary to support the
adjustment." U. S. v. Alfaro, 919 F.2nd 962, 965 (5th Cir. 1990).
Here, it is quite clear that the Perry testimony lacks the
necessary indicia of reliability to support an increase in the base
level offense.
Acosta's convictions are AFFIRMED and his sentence is vacated
and the matter REMANDED for resentencing in accordance with this
opinion.
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