Arroyo-Angulo v. United States ( 1998 )

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
5-19-1998
Arroyo-Angulo v. United States
Precedential or Non-Precedential:
Docket 97-5407,97-5409,97-5473
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Recommended Citation
"Arroyo-Angulo v. United States" (1998). 1998 Decisions. Paper 115.
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Filed May 19, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-5409
UNITED STATES OF AMERICA
v.
BARDUL TAFTSIOU,
Appellant
No. 97-5473
UNITED STATES OF AMERICA
v.
JAMES TAFTSIOU,
aka James Taft, aka Gezim Taftsiou
James Taftsiou,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. Nos. 95-cr-00681-1, 95-cr-00681-6)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 1998
Before: SLOVITER and GREENBERG, Circuit Judges ,
and POLLAK, District Judge*
_________________________________________________________________
* Hon. Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
(Filed May 19, 1998)
Jerome A. Ballarotto
Mel Sachs
Charles O. Lederman
Trenton, N.J. 08610
Attorneys for Appellants
Faith S. Hochberg
United States Attorney
Kevin McNulty
George S. Leone
Office of United States Attorney
Newark, N.J. 08101
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Bardul Taftsiou was convicted in the United States
District Court for the District of New Jersey of possessing,
delivering, passing and conspiring to pass approximately
$1 million in counterfeit Federal Reserve Notes. At the same
trial, his son James Taftsiou was convicted of dealing and
conspiring to pass approximately $1 million in counterfeit
Federal Reserve Notes. On appeal, both defendants
challenge their convictions and sentences, raising the same
issues. For the reasons that follow, we will affirm.
I.
In late 1994, Bardul Taftsiou and his brother Kadri
discussed with Mostafa Mahamoud the possibility of
obtaining counterfeit United States currency, but ultimately
Bardul decided to print his own counterfeit notes with the
help of his 33-year old son James. In March and April of
1995, James Taftsiou, using a false identity, purchased an
extremely high capability computer for $7,300, a top-of-the-
line color printer for $8,000-9,000 and a very large,
2
accurate commercial paper cutter. With this equipment,
father and son began printing double-sided full-color
counterfeit $100 notes. Several months later, they also
began printing counterfeit $50 notes. Both denominations
of counterfeit bills were printed with magnetic ink so that
they would be accepted by slot machine bill validators in
Atlantic City, New Jersey and Las Vegas, Nevada.1
After the printing operations were underway, Bardul gave
Mahamoud a bag of counterfeit notes and suggested that
he recruit a group of people to go to Atlantic City over
Memorial Day weekend to use the notes in casino slot
machines. Once in Atlantic City, Mahamoud and the others
would insert the notes in various slot machines, play the
machine for a short period of time or not at all, hit the
"cash out" button and exchange the tokens paid out by the
machine for genuine currency. Mahamoud would then
bring the genuine currency to Bardul and Kadri Taftsiou in
exchange for more counterfeit notes.
On May 28, 1995, during the Memorial Day weekend
trip, one of the men in Mahamoud's group successfully
passed three of the counterfeit $100 bills to a prostitute,
who informed the police when she realized the bills were
counterfeit. Thereafter, both genuine and counterfeit notes
were found in Mahamoud's room and on his person, some
of which matched the bills given to the prostitute.
An additional $55,000 of the Taftsious' counterfeit notes
was passed in slot machines in various Atlantic City
casinos over the Memorial Day weekend. Secret Service
agents testified that they could trace the notes to the
Taftsiou group because they had never before encountered
notes exactly like those recovered from Mahamoud and the
others during the Memorial Day weekend. The notes
exhibited several distinct patterns that did not appear
_________________________________________________________________
1. Bill validators allow a casino's customers to play slot machines using
paper currency. Once a customer inserts a bill into the validator, the
validator scans the bill for the presence of magnetic ink as used in
genuine United States currency. If the bill is accepted, the customer can
either play the machine or "cash out" and receive casino tokens
redeemable for cash.
3
anywhere in the Secret Service's nationwide database of
recovered counterfeit currency.
In the summer of 1995, James Taftsiou began passing
the counterfeit notes in Las Vegas. On the July 4th
weekend, James and his friend Bujar Musa were captured
on casino surveillance videotapes passing the counterfeit
notes in various slot machines. By July 13, 1995, the
Secret Service in Las Vegas had received $79,000 of the
Taftsious' counterfeit notes.
From June 1 through November 17, 1995, Secret Service
agents apprehended fourteen individuals for passing the
Taftsious' counterfeit currency in both Atlantic City and Las
Vegas and collected over $325,000 of the Taftsious' notes.
Those arrested included relatives, friends, friends of
relatives and individuals randomly recruited by James
Taftsiou to pass the counterfeit notes in the casinos.
Mahamoud began cooperating with the investigating
authorities in October of 1995. Bardul and some of his
family members were arrested in November 1995 at
Tropworld Casino in Atlantic City where they passed
counterfeit bills into slot machines while Bardul collected
the casino tokens from them and exchanged them for
genuine currency. The agents recovered $9,000 in both
counterfeit and genuine currency from the arrestees, their
car, and the slot machines they had been playing. James
Taftsiou was subsequently arrested on February 6, 1996.
Count One of the five-count superseding indictment
charged Bardul, James, Nazmije Taftsiou (Bardul's wife),
Julie Hasimi (Bardul's daughter) and Ilim Asimi (Julie
Hasimi's brother-in-law) with conspiring with each other
and seventeen other named co-conspirators plus others
known and unknown to buy, sell, exchange, transfer,
deliver, pass, utter conceal and keep in their possession
approximately $1 million in counterfeit $100 and $50
Federal Reserve Notes in violation of 18 U.S.C. SS 371, 472
and 473.2 Bardul and Nazmije Taftsiou, Julie Hasimi and
Ilim Asimi were charged in Count Two with passing
_________________________________________________________________
2. Arzija Taftsiou, Bardul's mother, was indicted with the others, but the
charges against her were dismissed.
4
approximately 17 counterfeit $50 notes with intent to
defraud in violation of 18 U.S.C. SS 472 and 2, and in
Count Three with possessing and concealing approximately
90 counterfeit $50 notes in violation of 18 U.S.C. SS 472
and 2. Count Four charged James Taftsiou with dealing in
approximately 60 counterfeited $50 notes in violation of 18
U.S.C. SS 473 and 2. Count Five charged Bardul Taftsiou
with dealing in approximately 17 counterfeit $50 notes, also
in violation of 18 U.S.C. SS 473 and 2. Approximately
twenty other individuals were charged for related offenses
in separate indictments.
Following a seven-week trial, Bardul and James Taftsiou
were found guilty on all counts with which they had been
charged. Nazmije Taftsiou and Julie Hasimi were acquitted.
Bardul was then sentenced to four 51-month terms of
imprisonment to be served concurrently, and James was
sentenced to two concurrent 54-month terms. Both were
ordered to pay $25,000 in restitution, but were given no
fine. These consolidated appeals followed.
II.
A.
Appellants argue first that the district court erred in
denying their motion for acquittal which they filed at the
close of the government's case-in-chief. Defendants do not
contest the relevant facts but argue that there was
insufficient evidence to support a finding that they intended
to pass the counterfeit notes to any person or that the
notes appeared sufficiently genuine to be considered
"counterfeit" within the meaning of 18 U.S.C. SS 472 and
473. At the end of the trial, the district court denied the
motion, finding that the "bills were two-sided. They were
both $100's and $50's. They bore a close resemblance in
terms of the images on both sides to a genuine bill, and
they also bore a close resemblance to the color and colors
found both on the backs and the fronts of genuine bills."
App. at 143.
Our review is plenary and, in exercising that review, we
must interpret the evidence in the light most favorable to
5
the government as the verdict winner. See United States v.
Rieger, 942 F.2d 230, 232 (3d Cir. 1991).
Section 472 of Title 18 of the United States Code
provides, in relevant part, that "[w]hoever, with intent to
defraud, passes . . . or keeps in possession or conceals any
. . . counterfeited . . . obligation . . . of the United States,
shall be fined under this title or imprisoned not more than
fifteen years, or both." 18 U.S.C. S 472. Section 473
provides in relevant part that "[w]hoever buys, sells,
exchanges . . . any . . . counterfeited . . . obligation . . . of
the United States, with the intent that the same be passed
. . . as true and genuine, shall be fined under this title or
imprisoned not more than ten years, or both." 18 U.S.C.
S 473. Neither statute on its face requires that a defendant
have intended to pass the counterfeit notes to a person or
that the notes closely resemble genuine currency.
Over fifty years ago, however, this court held in United
States v. Lustig, 159 F.2d 798 (3d Cir. 1947), rev'd in part
on other grounds, 338 U.S. 74 (1949), that
the proper test to be applied is whether the fraudulent
obligation bears such a likeness or resemblance to any
of the genuine obligations or securities issued under
the authority of the United States as is calculated to
deceive an honest, sensible and unsuspecting person of
ordinary observation and care when dealing with a
person supposed to be upright and honest.
Id. at 802.
Only those counterfeit notes that are sufficiently similar
to genuine currency so as to meet this definition may be
considered "counterfeit." Id. Since we issued Lustig, our
reasoning and the language we employed there have been
adopted by virtually every court that has addressed the
issue. See, e.g., United States v. Gomes, 969 F.2d 1290 (1st
Cir. 1992); United States v. Ross, 844 F.2d 187 (4th Cir.
1988); United States v. Cantwell, 806 F.2d 1463 (10th Cir.
1986); United States v. Johnson, 434 F.2d 827 (9th Cir.
1970).
Defendants argue that because the paper notes they
circulated were not of high enough quality to pass hand-to-
6
hand, they could not be characterized as "counterfeit." They
rely almost exclusively on the opinion of the United States
Court of Appeals for the Fourth Circuit in Ross, 844 F.2d
187, where the $1 bill defendants were charged with
counterfeiting was a one-sided photocopied black and white
reproduction on plain white paper. The defendants had
attempted to insert the photocopy into a change machine at
a car wash. Their convictions under 18 U.S.C. SS 471 and
472 were reversed on the ground that the reproduction was
not sufficiently similar to genuine notes. According to the
court, the photocopies were "patently fake,"obviously false
and bogus," and could not be mistaken for genuine from
"one hundred feet away." Id. at 189-90. In addition, the
court pointed out that there had been no testimony that the
reproduction had actually deceived anyone. Id. at 190.
The evidence in this case differs from that in Ross.
Bardul's daughter Julie Hasimi testified that she believed
the counterfeit notes were genuine, and there was evidence
in the record that three of the bills had been successfully
passed to at least one person. Supp. App. at 86. A Secret
Service expert in the analysis of counterfeit currency
testified that the Taftsious' bills were "average" and that she
was aware of worse quality bills having been successfully
passed in other cases. Supp. App. at 246A.
In addition to the testimony adduced at trial, physical
examples of the Taftsious' counterfeit notes were admitted
into evidence. See Addendum to Appellee's Br.; Gov't. Exh.
183, 220. Therefore, presumably each juror could touch
and examine the notes and come to his or her own
conclusion regarding the reasonableness of their being
accepted by an honest, unsuspecting person. Thus, it was
not improper for the district court to have described the
bills on the record and to have commented that "the
evidence speaks for itself." App. at 143. In doing so, the
judge did not, as appellants claim, improperly weigh the
evidence. The judge merely acknowledged that the jurors
were entitled to examine and consider the Taftsious' notes
in reaching their conclusion, based on the totality of the
evidence, that the bills were sufficiently similar to genuine
currency to be "counterfeit" within the meaning of 18
U.S.C. SS 472 and 473.
7
Finally, we reject appellants' suggestion that the
counterfeiting statutes at issue require them to have passed
or intended to pass their notes to persons, as opposed to
machines. Our decision in Lustig with its emphasis on
whether the bills could deceive "an honest, sensible and
unsuspecting person" was written in a time when machines
were not regularly used to process money. There seems
little reason why false bills that are successfully processed
through machines, whether slot machines, vending
machines or others, should not be treated the same for
purposes of the counterfeiting statutes as false bills that
were passed to a person. The intent to defraud is the same,
as is the effect. The statutes themselves do not contain
language requiring passing to a person. A slight
clarification by Congress to expressly require treatment of
counterfeit bills passed through machines equal to that of
counterfeit bills passed to persons would eliminate any
question of a different interpretation. However, we need not
resolve this issue because the record before us is adequate
for us to affirm the district court's denial of appellants' Rule
29 motion for judgment of acquittal even under the Lustig
standard.
B.
Defendants next argue that the district court erred in
refusing to charge a misdemeanor violation of 18 U.S.C.
S 491 as a lesser included offense of the counterfeiting
charges. Following some period of uncertainty as to the
interpretation of Rule 31(c) of the Federal Rules of Criminal
Procedure with respect to when a jury may convict a
defendant "of an offense necessarily included in the offense
charged," there are now some clear guidelines. A district
court is required to charge an offense as a lesser included
of a greater offense when requested if "the elements of the
lesser offense are a subset of the elements of the greater
offense." United States v. Mosley, 126 F.3d 200, 203 (3d
Cir. 1997). On the other hand, "[w]here the lesser offense
requires an element not required for the greater offense, no
instruction is to be given under Rule 31(c)." Schmuck v.
United States, 489 U.S. 705, 716 (1989). "This standard
involves a textual comparison, looking solely to the
8
elements of the two offenses; inferences arising from the
evidence and similarities as to the interests served by the
statutes are not relevant." Mosley, 126 F.3d at 203-04
(citing Schmuck, 489 U.S. at 720).
In the case at bar, a most cursory review of the relevant
statutory language reveals that the lesser offense of S 491
requires elements not required by SS 472 and 473.3 Namely,
_________________________________________________________________
3. The full text of S 472 is as follows:
Whoever, with intent to defraud, passes, utters, publishes, or
sells,
or attempts to pass, utter, publish, or sell, or with like intent
brings
into the United States or keeps in possession or conceals any
falsely
made, forged, counterfeited, or altered obligation or other
security of
the United States, shall be fined under this title or imprisoned
not
more than fifteen years, or both.
18 U.S.C. S 472.
Section 473 provides in full:
Whoever buys, sells, exchanges, transfers, receives, or delivers
any
false, forged, counterfeited, or altered obligation or other
security of
the United States, with the intent that the same be passed,
published, or used as true and genuine, shall befined under this
title or imprisoned not more than ten years, or both.
18 U.S.C. S 473.
The relevant subsections of the misdemeanor statute that the
appellants contend the district court should have charged as a lesser
included offense are as follows:
(a) Whoever, being 18 years of age or over, not la wfully
authorized, makes, issues, or passes any coin, card, token, or
device
in metal, or its compounds, intended to be used as money, or
whoever, being 18 years of age or over, with intent to defraud,
makes, utters, inserts, or uses any card, token, slug, disk,
device,
paper, or other thing similar in size and shape to any of the
lawful
coins or other currency of the United States or any coin or other
currency not legal tender in the United States, to procure anything
of value, or the use or enjoyment of any property or service from
any
automatic merchandise vending machine, postage-stamp machine,
turnstile, fare box, coinbox telephone, parking meter or other
lawful
receptacle, depository, or contrivance designed to receive or to be
operated by lawful coins or other currency of the United States,
shall be fined under this title, or imprisoned not more than one
year, or both.
9
S 491 requires that a fraudulent card, slug or paper be
used or intended to be used in a vending machine, stamp
machine, turnstile, fare box, or other "contrivance designed
to receive or to be operated by lawful coins or other
currency of the United States." 18 U.S.C. S 491. Sections
472 and 473 have no such requirement.
Thus, if one were to pass counterfeit notes to a human
being, the perpetrator could be convicted underS 472, but
would not be guilty of having violated S 491. Likewise, one
who buys or sells counterfeit notes could be convicted
under S 472, but would not necessarily be guilty of having
violated S 491. The mere coincidence that, in this case,
defendants' conduct may have simultaneously violated
SS 472, 473, and 491 does not affect the Rule 31(c)
analysis. See Schmuck, 489 U.S. at 716-17 (the
"comparison is appropriately conducted by reference to the
statutory elements of the offenses in question, and not . . .
by reference to conduct proved at trial. . . .")."[L]ooking
solely to the elements of the two offenses," Mosley, 126 F.3d
_________________________________________________________________
(b) Whoever manufactures, sells, offers, or advert ises for sale,
or
exposes or keeps with intent to furnish or sell any token, slug,
disk,
device, paper, or other thing similar in size and shape to any of
the
lawful coins or other currency of the United States, or any token,
disk, paper, or other device issued or authorized in connection
with
rationing or food and fiber distribution by any agency of the
United
States, with knowledge or reason to believe that such tokens,
slugs,
disks, devices, papers, or other things are intended to be used
unlawfully or fraudulently to procure anything of value, or the use
or enjoyment of any property or service from any automatic
merchandise vending machine, postage-stamp machine, turnstile,
fare box, coin-box telephone, parking meter, or other lawful
receptacle, depository, or contrivance designed to receive or to be
operated by lawful coins or other currency of the United States
shall
be fined under this title or imprisoned not more than one year, or
both.
Nothing contained in this section shall create immunity from
criminal prosecution under the laws of any State, Commonwealth of
Puerto Rico, territory, possession, or the District of Columbia.
18 U.S.C. S 491.
10
at 203, S 491 is not a lesser included offense of SS 472 and
473.
Accordingly, we will affirm the district court's denial of
the Taftsious' Rule 31(c) motion to charge 18 U.S.C.S 491
as a lesser included offense of the counterfeiting violations
of which they were convicted.
C.
Finally, the Taftsious challenge their sentences on two
different grounds. First, they argue that the district court
erred in enhancing their sentences by 11 levels pursuant to
U.S.S.G. SS 2B5.1(b)(1) on the ground that the "amount of
loss" was allegedly unsubstantiated by the evidence.
Second, they contend that the 11-level enhancement was
improper in light of the poor quality of the notes.
Under the United States Sentencing Guidelines, a
violation of 18 U.S.C. SS 472 and 473 carries with it a base
offense level of 9. U.S.S.G. S 2B5.1(a). "If the face value of
the counterfeit items exceeded $2,000," the court should
increase the offense level using the table in S 2F1.1.
U.S.S.G. S 2B5.1(b)(1). That table provides for an increase
of 11 levels where the value of the counterfeit items is
between $800,000 and $1.5 million. U.S.S.G.
S 2F1.1(b)(1)(L).
In this case, the Probation Office quantified the face value
of the counterfeit notes attributable to these defendants at
$1.2 million. At sentencing, the district court found by a
preponderance of the evidence that the amount in issue for
purposes of S 2F1.1 was between $800,000 and
$1.5 million. Accordingly, following SS 2B5.1 and 2F1.1, the
court increased the Taftsious' offense level by 11 levels.
We review the district court's factual findings for clear
error and may reverse those findings only where they are
"completely devoid of a credible evidentiary basis or bear[ ]
no rational relationship to the supporting data." United
States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997) (quoting
American Home Prod. Corp. v. Barr Labs., Inc., 834 F.2d
368, 370-71 (3d Cir. 1987)).
11
At trial, Secret Service Agent Brian Donovan testified that
approximately $210,000 in counterfeit notes was recovered
directly from the defendants and their co-conspirators and
in casino machines which they were playing when found.
Lorelei Pagano, a Secret Service Agent expert in the
analysis of counterfeit currency, testified that virtually all of
the $1.2 million in counterfeit notes, including the
$210,000 identified by Agent Donovan, had a "common
origin" and were made from a "common source." Supp. App.
at 234. Susan Fortunato, another agent expert in the
analysis of counterfeit currency, testified that all of the
notes comprising the approximately $1.2 million in the
possession of the Secret Service had been printed using the
same brand of computer equipment purchased by James
Taftsiou.
In an attempt to counter this evidence, appellants
challenge Agent Pagano's analysis on the ground that she
actually examined only a handful of the notes at issue.
However, Agent Pagano testified in detail regarding the
analysis she employed in identifying the $1.2 million in
counterfeit notes as being of common origin. Her testimony
was sufficient to support a finding that all $1.2 million
originated from a common source. In turn, other evidence
in the record, including the testimony of Agents Fortunato
and Donovan as well as that of James Taftsiou and several
of his co-conspirators, was sufficient to support a finding
that the source was the Taftsious.
Moreover, appellants' general assertion that "only a
fraction of the $1.2 million charged was directly linked to
this case and any related cases" does not demonstrate clear
error. Given the district court's finding that the face value
of the notes at issue was between $800,000 and
$1.5 million, the Taftsious would have to show that Agent
Pagano's calculations were off by more than $400,000--
something they have not attempted to do -- before they
could succeed in proving reversible error. See U.S.S.G.
S 2F1.1, Appl. Note 8 ("For the purpose of subsection (b)(1),
the loss need not be determined with precision. The court
need only make a reasonable estimate of the loss, given the
available information.").
12
Defendants next challenge the $1.2 million lossfigure on
the ground that "this is the age of technology" and argue
they should not "be held accountable for such an amalgam
of printed material while the various components are
certainly available to millions of people within the ether of
the Internet." Appellants' Br. at 27-28. They cite nothing in
the record to suggest that copies of their counterfeit bills
were available on the Internet or that any of the notes at
issue were in fact obtained by anyone from that source.
Such wild speculation is inadequate to demonstrate clear
error on the part of the district court.
The Taftsious seek some assistance from application note
4 to U.S.S.G. S 2B5.1 which provides, in full, that
"[s]ubsection (b)(2) [of S 2B5.1] does not apply to persons
who merely photocopy notes or otherwise produce items
that are so obviously counterfeit that they are unlikely to be
accepted even if subjected to only minimal scrutiny." They
contend that theirs are examples of the "so obviously
counterfeit" notes to which the application note is
addressed. However, note 4 is limited by its terms to
enhancements under subsection (b)(2) of S 2B5.1 while the
district court in the case at bar proceeded under subsection
(b)(1). Nonetheless, appellants argue that the "same sort of
limiting analysis should have been applied to the
enhancement under S 2B5.1(b)(1)." Appellants' Br. at 29.
The Sentencing Commission has expressly and
unambiguously limited the reach of note 4 to subsection
(b)(2), and we are not at liberty to extend its application to
other subsections by judicial fiat alone. Accordingly, we find
no error in the district court's finding that the face value of
the Taftsious' counterfeit currency was between $800,000
and $1.5 million and that appellants' offense level should
be increased by 11 levels pursuant to U.S.S.G.
SS 2B5.1(b)(1) and 2F1.1(b)(1)(L).
III.
For the reasons stated above, we will affirm the
judgments of conviction and sentence entered by the
district court.
13
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
14