United States v. Kelly ( 2000 )

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