United States v. Marshall ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-6316
v. (W.D. Oklahoma)
MICHAEL ALBERT MARSHALL, (D.C. No. 05-CR-20-T)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Following a jury trial, defendant-appellant Michael Albert Marshall was
found guilty of one count of possession of counterfeit United States Federal
Reserve notes with intent to defraud, in violation of 18 U.S.C. § 472. He was
sentenced to forty-eight months’ imprisonment, followed by three years of
supervised release. He appeals on the sole issue of whether there was sufficient
evidence establishing that he had the requisite intent to defraud. We affirm.
BACKGROUND
In 2002, the United States Secret Service received information that there
were counterfeit Federal Reserve notes circulating in Oklahoma City, Oklahoma.
The Secret Service accordingly initiated an investigation. Acting on information
gleaned from a confidential informant, on August 21, 2002, Oklahoma City police
officers conducted a traffic stop of Steven Butler, also known as “Buccet Loc,”
and found he had over $500 in counterfeit Federal Reserve notes. Butler agreed
to help law enforcement authorities in their investigation into counterfeit currency
and told authorities that Marshall was the source of the counterfeit notes he
possessed and that Marshall had additional counterfeit currency in excess of
$10,000.
Butler then accompanied police officers as they drove to Marshall’s
residence. They observed Marshall leave his residence in a car and drive to a
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hotel. The authorities then had Butler contact Marshall to negotiate a controlled
delivery of $10,000 in counterfeit money to be exchanged for real money. The
officers placed Marshall under surveillance and observed him drive to his house,
go into his house for approximately five minutes, depart his house and drive off in
his car. A few minutes later, some time after midnight on August 22, 2002, other
Oklahoma City police officers, who had been alerted to watch for Marshall’s car,
conducted a traffic stop of Marshall and found $10,730 in counterfeit currency on
his person.
Officers then obtained a search warrant for Marshall’s house and found an
additional $29,880 in counterfeit currency in a dog food bag in a detached garage.
A few hours after the traffic stop, Oklahoma City police officers and a Secret
Service Special Agent interviewed Marshall. Marshall confessed to possessing
the counterfeit currency and stated that no one else in his house knew about it.
He further stated that he was involved in the rap music industry as a
producer/mixer/engineer for Butler. Marshall also stated he had intended to use
the counterfeit money as “flash money,” and that he also used it in drug deals
with Mexicans, whereby he bought drugs with the counterfeit currency and the
Mexicans were “unaware of the counterfeit until it crosses the border.” Tr. of
Trial at 54, R. Vol. 2; see also id. at 71-73.
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Marshall was accordingly indicted on one count of possessing, with intent
to defraud, approximately $40,610.00 in counterfeit money. Marshall argued at
his trial that, while he did possess the counterfeit money, he did not have the
intent to defraud. 1 The sole issue on appeal is whether there was sufficient
evidence of intent to defraud to support the jury’s guilty verdict.
DISCUSSION
“Sufficiency of the evidence to support a jury’s verdict is a legal issue we
review de novo.” United States v. Lauder, 409 F.3d 1254, 1258 (10th Cir. 2005).
We examine the evidence “in the light most favorable to the government to
determine whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. at 1259 (quoting United
States v. Reece, 86 F.3d 994, 995-96 (10th Cir. 1996) (further quotation
omitted)). “[W]e do not ‘question the jury’s credibility determinations or its
conclusions about the weight of the evidence.’” Id. (quoting United States v.
Lazcano-Villabos, 175 F.3d 838, 843 (10th Cir. 1999)). In this case, we focus
only on the sufficiency of the evidence of intent to defraud.
1
18 U.S.C. § 472 imposes a fine or imprisonment for up to twenty years on
anyone who “with intent to defraud[] . . . keeps in possession or conceals”
counterfeit currency.
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“[I]t is well settled that a general intent to defraud unknown third parties
will suffice under” 18 U.S.C. § 472. United States v. Wilkerson, 469 F.2d 963,
969 (5th Cir. 1972). “Mere possession with knowledge of the counterfeit
character of the currency will not suffice . . . .” Id.; see also United States v.
Bishop, 534 F.2d 214, 218 (10th Cir. 1976) (“It is fundamental that the naked act
of possessing and passing counterfeit money without knowledge that it is
counterfeit does not establish the requisite knowledge essential to the crime of
passing or the requisite intent to defraud.”). However, “[b]ecause it is difficult to
prove intent to defraud from direct evidence, a jury may consider circumstantial
evidence of fraudulent intent and draw reasonable inferences therefrom.” United
States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003). Thus, “the jury has the
right to evaluate the overall actions of a person charged [with violating 18 U.S.C.
§ 472], and knowledge and intent may be inferred therefrom.” Bishop, 534 F.2d
at 218.
“A variety of circumstantial evidence has been held relevant to infer
fraudulent intent. Intent may be inferred from evidence that the defendant
attempted to conceal activity. Intent to defraud may be inferred from the
defendant’s misrepresentations . . . .” United States v. Welch, 327 F.3d 1081,
1105 (10th Cir. 2003) (further quotation omitted). Additionally, “evidence of
passing or attempting to pass similar counterfeit notes on other occasions” may be
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relevant to show intent. Holt v. United States, 404 F.2d 914, 920 (10th Cir.
1968). Further, “intent may be inferred from the segregation of genuine from
counterfeit money.” United States v. Tucker, 820 F.2d 234, 236 (7th Cir. 1987).
We find there is sufficient evidence in the record from which a reasonable
jury could find that Marshall had the requisite intent to defraud. Butler testified
that, in the weeks leading up to his and Marshall’s arrests, he was “financially . . .
drained.” Tr. of Trial at 114, R. Vol. 3. Marshall accordingly gave Butler
approximately $1000 in counterfeit money, which he told Butler not to use in
stores. Butler testified, however, that Marshall knew “that [Butler] intended to
use [the counterfeit money] to pay [for his] room,” id. at 118, and for “daily
expenses.” Id. at 151. Butler stated he told Marshall “that’s what [he] needed”
and Marshall did not object. Id.
Butler further testified that he arranged the controlled buy from Marshall by
telling Marshall he “had a lucrative opportunity . . . to make some money.” Id. at
120. He further stated that the arrangement was “to sell some of the counterfeit
to a third party,” id., and that Marshall “was aware of that.” Id. at 121. Butler
testified that both he and Marshall knew that the deal would be “lucrative.” Id. at
154.
Butler also testified about the necessity in the music industry of appearing
to have lots of cash: “it look[s] better if you have cash,” and “it [is] important
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that [Butler] . . . have flash money, that is, money that people could see to make
[him] look like [he] w[as] doing very well.” Id. at 126. Thus, if an individual
had “flash cash, . . . people would look at it or construe it as if they would
definitely have to pay [him] by a certain pay scale.” Id. He admitted that using
the counterfeit money as “flash cash” was “deceptive.” Id. at 152. Besides
enabling Butler to use “flash cash,” Marshall admitted to authorities that he used
the counterfeit money as “flash cash” as well.
In sum, there was evidence from which a reasonable jury could conclude
that Marshall had the requisite intent to defraud. Butler suggested that both he
and Marshall, as participants in the music industry, intended to use the counterfeit
“flash cash” to misrepresent their financial situation. Marshall agreed to a
“lucrative” sale of counterfeit money to some third party, which would release his
counterfeit money into the public and benefit Marshall. Marshall knew of and
condoned Butler’s use of the counterfeit money to pay certain living expenses,
including his hotel bill, on an ongoing basis. Marshall admitted to defrauding
Mexican drug dealers with the counterfeit money on prior occasions. And,
Marshall’s placement of the counterfeit money in a dog food bag, away from any
legitimate money at his residence, indicated he wished to keep the existence of
the counterfeit money hidden from others. A reasonable jury could certainly find
therefrom an intent to defraud.
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CONCLUSION
For the foregoing reasons, we AFFIRM Marshall’s conviction.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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