United States v. Almeida, III

United States Court of Appeals
For the First Circuit
No. 12-2265
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY E. ALMEIDA III,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Henry W. Griffin for Appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for Appellee.
April 4, 2014
STAHL, Circuit Judge. On July 20, 2012, a jury convicted
Anthony Almeida of possessing counterfeit obligations of the United
States, in violation of 18 U.S.C. § 472. The court sentenced
Almeida to fifty-one months' imprisonment. Almeida timely
appealed, challenging a number of evidentiary rulings, the
sufficiency of the evidence to sustain a conviction, and his
sentence. Finding that the district court committed no error in
the proceedings below, we affirm.
I. Facts & Background
On July 5, 2011, Detective Maurice Drouin was pursuing a
vehicle that was traveling with a headlight out on Route 4 in
Turner, Maine, when he noticed a Chevrolet Silverado pickup truck
that failed to yield to his emergency lights. Although Drouin
initially passed the truck in pursuit of the other vehicle, he
later located the truck and pulled it over. A search for the
truck's license plate number on Drouin's mobile data terminal
revealed that the truck was registered to Maynard Martin. The
driver provided a temporary Maine license with no photograph issued
to John Martin. The passenger gave his name as Joshua Almeida. In
fact, the passenger was John Martin and the driver was Anthony
Almeida, Joshua's brother.1
1
This opinion will refer to Anthony Almeida as "Almeida" and
Joshua Almeida as "Joshua."
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Drouin returned to his cruiser and ran another search on
the data terminal that showed Martin's license was expired and
Joshua's was suspended. Drouin informed the men in the truck of
the results of the search, issued a warning, and let them go. As
the truck headed off, Drouin ran a cross-agency check on John
Martin and Joshua Almeida, retrieving photographs of each. He
determined that the passenger was actually John Martin, and
(erroneously) identified the driver as Joshua Almeida. He also
learned that Joshua Almeida had a history of drug possession and
trafficking.
Drouin pursued the truck again, intending to arrest both
the driver and the passenger for driving identity offenses. When
he stopped the truck, the two occupants had switched places – the
real John Martin was driving and Almeida was in the passenger seat.
Drouin arrested them both. When he handcuffed and patted down
Almeida, Drouin retrieved a wallet from his back pocket. Drouin
opened the wallet and saw a large bundle of cash wrapped in rubber
bands, a manner of carrying money that Drouin associated with drug
traffickers. He put the wallet with the money back in Almeida's
pocket.
After the arrests, Drouin's partner arrived on the scene,
and the two officers called for a K-9 dog to sniff the exterior of
the truck. The dog alerted to the presence of drugs in the truck,
and the dog's handler found a small bag of marijuana in the
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passenger's side door panel. On this basis, Drouin and the other
officers present conducted a full search of the truck.2
During the search, the officers found a large amount of
money wrapped in rubber bands inside a Doritos bag and drug
paraphernalia. Martin stated that the money in the Doritos bag
belonged to him. A dog sniff of the money indicated the presence
of drug residue on the bills. Drouin observed that the money in
the Doritos bag was bundled in the same manner as the money in
Almeida's wallet.
Prior to transporting Martin and Almeida to jail, Drouin
removed the money from Almeida's wallet. He counted the seized
money, placed it in a bag, and retained it as evidence. Drouin
later testified at trial that he believed he had probable cause to
seize the contents of Almeida's wallet as proceeds of drug
trafficking.
At the Androscoggin County Jail, where Almeida and Drouin
were held, there is a policy requiring the staff member who admits
an inmate to conduct a preliminary search for weapons and
contraband. If the staff member finds contraband, the shift
supervisor may turn it over to the originating arresting agency for
further action. In this instance, jail officials found contraband
on Martin and turned it over to Drouin. At some point after Martin
2
Although the magistrate judge discussed the officers' use
of the K-9 at length, those details are not pertinent to the
outcome of this appeal, so we have omitted them here.
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and Almeida were jailed, Drouin learned from a probation officer
that Almeida was Anthony, not his brother Joshua.
Drouin placed the seized items into evidence at the
Androscoggin County Sheriff's Office ("ACSO"). As he was counting
the seized money, he noticed bills that were smaller than others,
and bills with matching serial numbers. Drouin suspected that some
of the money was counterfeit and contacted the United States Secret
Service. Later that day, he met with Secret Service Special Agent
Matt Fasulo, who examined the seized money and concluded that some
of it was counterfeit.
On July 6, 2011, Almeida placed two telephone calls to
his wife from jail. These conversations were recorded. The second
conversation primarily concerned Almeida's efforts to secure bail
money, but Almeida also told his wife, "Throw all my shit – all my
shit needs to be thrown away. You know what I'm sayin? . . . My
suitcase – all that – thrown right away – okay?"
On July 7, 2011, Drouin obtained a warrant to search the
impounded truck for additional evidence related to drug trafficking
or counterfeiting. The search pursuant to the warrant did not
uncover any further evidence. The truck remained at ASCO, subject
to asset forfeiture proceedings initiated by the Secret Service.
As part of those proceedings, Secret Service agents Kelley Erskine
and Joshua Catella performed an inventory search of the truck under
Fasulo's direction. That search yielded, among other items, a
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Canon printer cartridge. An expert testified at trial that the ink
used to produce the counterfeit bills was "consistent with inks
manufactured in Canon inkjet printers and copiers."
While the investigation was in progress, Detective Kelly
Rupert contacted Drouin to inform him about the discovery of
counterfeit bills along Oak Pond Road in Skowhegan, Maine. On June
28, 2011, Travis Pece found $5,950 in loose currency in a pile on
the side of the road ("Oak Pond bills"). He turned them in to the
police, who determined that the money was counterfeit. Subsequent
investigation identified Almeida's fingerprints on two of the Oak
Pond bills. The police also determined that the serial numbers on
some of the genuine bills in Almeida's wallet matched the serial
numbers on several of the Oak Pond bills, as well as some of the
counterfeit bills found in the truck. Fasulo testified at trial
that these genuine bills were "pattern notes" used to manufacture
the matching counterfeit bills.
Almeida was arraigned on August 16, 2011. He pleaded not
guilty to the charge of possessing counterfeit obligations of the
United States, in violation of 18 U.S.C. § 472. After a jury trial
on June 19 and 20, 2012, Almeida was found guilty. On October 15,
2012, the presiding judge sentenced Almeida to fifty-one months'
imprisonment. This appeal followed.
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II. Analysis
On appeal, Almeida challenges the district court's
decision to admit certain evidence at trial. He also challenges
the court's denial of a motion for acquittal, arguing that there
was insufficient evidence to prove the counterfeiting charge.
Finally, Almeida disputes the reasonableness of his sentence.
A. Motion to Suppress
On September 6, 2011, Almeida filed a motion to suppress
evidence obtained from the officers' search of the truck and from
the seizure of the money in Almeida's wallet. Magistrate Judge
Rich held a hearing on the motion and issued a recommended decision
denying the motion on January 9, 2012. On March 20, 2012, the
district court adopted the recommended decision. "We apply a mixed
standard of review to the district court's denial of a motion to
suppress, reviewing findings of fact for clear error and
conclusions of law . . . de novo." United States v. Bolton, 520
F.3d 80, 82 (1st Cir. 2008).
1. Search of the Truck
In his motion to suppress, Almeida argued that the
warrantless search of the truck violated the Fourth Amendment,
because "[n]o exigency existed which justified a warrantless
search." He also challenges the admission of the evidence gathered
in the inventory search. These arguments fail at a threshold
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issue: whether Almeida had a reasonable expectation of privacy in
the truck. We find that he did not.
"The Fourth Amendment's protection against unreasonable
searches may only be claimed where a defendant demonstrates that he
or she personally has a reasonable expectation of privacy in the
place searched." United States v. Symonevich, 688 F.3d 12, 19 (1st
Cir. 2012). In the context of a vehicle search, a defendant must
show "a property [or] a possessory interest in the automobile" in
order to establish a reasonable expectation of privacy.3 Id.We have held a person who is "merely a passenger" does
not have a reasonable expectation of privacy in a vehicle, id.(internal quotation marks and alterations omitted), but in some
circumstances, a person who borrows a vehicle with the owner's
permission may have a reasonable expectation of privacy, see United
States v. Sugar, 322 F. Supp. 2d 85, 94 (D. Mass. 2004) (citing
cases). The facts of this case fall somewhere in between. Almeida
was driving the truck during the initial stop, apparently with
Martin's permission, but during the second stop Martin was driving
and Almeida was the passenger.
3
The Fourth Amendment may also apply when the defendant
shows "an interest in the property seized," Symonevich, 688 F.3d
at 19, but here Almeida never claimed an interest in the
counterfeit bills or any other evidence seized from the truck.
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No bright-line rule determines whether a person has a
reasonable expectation of privacy in a vehicle; instead the court
considers a number of factors:
ownership, possession, and/or control; historical use of
the property searched or the thing seized; ability to
regulate access; the totality of the surrounding
circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts of
a given case. We look, in short, to whether or not the
individual thought of the place (or the article) as a
private one, and treated it as such.
United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)
(citations omitted). In applying these factors to the facts before
us, we take guidance from our decisions in United States v. Lochan,
674 F.2d 960 (1st Cir. 1982), and United States v. Sanchez, 943
F.2d 110 (1st Cir. 1991).
In Lochan, as in this case at least part of the time, the
defendant was driving the car while the owner of the car was in the
passenger seat.4 674 F.2d at 965. The court in Lochan further
noted that the defendant had the car's registration in his pocket
and that he was on a long trip, which might "engender a slightly
greater privacy expectation than would a short trip." Id.Nevertheless, the court found that other factors weighed more
heavily in favor of finding no expectation of privacy. The court
noted, for example, that the defendant "did not own the car, nor
4
Here, the truck was actually registered to Martin's father,
but in this case that distinction does not affect our analysis.
-9-
was there evidence that he had used the car on other occasions.
There was no evidence as to the responsibility or control [the
defendant] had over the automobile other than the fact that he was
driving it when stopped." Id. Accordingly, the court found that
the defendant "failed to meet his burden of proof of a privacy
expectation." Id.In Sanchez, the defendant was driving the vehicle with
the apparent permission of its owner (although the court expressed
some doubt on that point). 943 F.2d at 113–14. The court
observed, however, that the defendant "had only a casual possession
of the car. He did not own it, nor, as the district court observed,
was there evidence that he had used the car on other occasions."
Id. The court explained that "a history of regular use of the
[car]" or a "pattern of permission, together with his sole control
on a long trip, would have minimized the informal and temporary
nature of this specific acquisition of the car." Id. at 114. But
in the absence of those circumstances, the court held that the
defendant had not met his burden of proof. Id.In this case, although Almeida was driving part of the
time, apparently with Martin's permission, he had "only a casual
possession" of the truck. Id. at 113. He did not own it, and he
has shown no pattern of repeated use or control over the truck that
would allow us to conclude that his possession of the truck was
anything more than "informal and temporary." Id. at 114. Almeida
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argues that we should infer an expectation of privacy from the fact
that there was incriminating evidence in the truck: "Considering
that the contents of the truck . . . formed much of the
condemnatory evidence produced at trial, it is logical that
[Almeida] bore a reasonable expectation of privacy with respect to
the area searched and the items seized." This argument goes
nowhere. The existence of incriminating evidence does not by
itself create a reasonable expectation of privacy. If it did, the
Fourth Amendment would apply to any search the reveals
incriminating evidence. That is obviously not the case. See
United States v. Hershenow, 680 F.2d 847, 855 (1st Cir. 1982) ("[A]
legitimate expectation of privacy means more than a subjective
expectation of keeping incriminating evidence hidden.")
Considering the relevant factors as applied in Sanchez
and Lochan, we conclude that Almeida has failed to meet his burden
of proof establishing that he had a reasonable expectation of
privacy in the truck. Thus, he cannot bring a challenge under the
Fourth Amendment to the evidence recovered from the truck, either
in the course of Drouin's warrantless search or the subsequent
inventory search. We therefore affirm the district court's order
denying the motion to suppress with respect to this issue.
2. Seizure of Bills from Almeida's Wallet
Almeida's motion to suppress also challenged Drouin's
seizure of money from his wallet prior to Almeida's transfer to
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jail. The Magistrate Judge recommended denying the motion on two
alternate grounds, the "plain view" exception and the "inevitable
discovery" exception, and the district court adopted the decision.
We affirm on the basis of the inevitable discovery exception.
The application of the inevitable discovery exception
involves three questions:
first, whether the legal means by which the evidence
would have been discovered was truly independent; second,
whether the use of the legal means would have inevitably
led to the discovery of the evidence; and third, whether
applying the inevitable discovery rule would either
provide an incentive for police misconduct or
significantly weaken constitutional protections.
United States v. Almeida, 434 F.3d 25, 28 (1st Cir. 2006).5 Here,
Drouin arrested Almeida and Martin for presenting him with false
identification during the initial stop. Androscoggin County Jail,
where Almeida was booked, has a policy mandating that arrestees be
fully searched and their property removed. If the search uncovers
contraband, the jail routinely turns it over to the arresting
officer. Under these circumstances, the district court held that
"the contents of the wallet inevitably would have been discovered
and seized by an independent, lawful means when Almeida was
processed at the Jail." Almeida presents us with no persuasive
reason to disagree with the district court's conclusion.
Turning to the first question involved in this analysis,
the legal means of discovery in this case were "truly independent,"
5
The 2006 Almeida case is unrelated to the present case.
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because Drouin had probable cause to arrest Almeida for presenting
false identification (and in fact did arrest him on that basis),
regardless of whether he seized the cash. Therefore the arrest and
subsequent seizure of cash during the booking process at the jail
would have occurred independently of the challenged seizure.
Second, the search at the jail would have inevitably
resulted in the seizure of the cash, because it was the jail's
policy to remove an arrestee's property during the booking process.
Almeida does not dispute the existence of the policy, or claim that
the policy was not regularly followed. Instead, he argues that
there is "nothing 'inevitable' about the jails [sic] discovery of
the bills in the wallet that initially fooled a trained detective."
This argument takes the name of the exception too literally.
It is possible, of course, that the jail official might
have missed what Drouin noticed, the irregular size and matching
serial numbers of the counterfeit bills. But we are not looking
for metaphysical certainty. The exception is applicable if there
is a "high degree of probability[] that the evidence would have
been discovered." Almeida, 434 F.3d at 29; see also United States
v. Rogers, 102 F.3d 641, 646 (1st Cir. 1996) ("The term
'inevitable' . . . is something of an overstatement."). There is
no question the bills would have been seized at the jail. The
counterfeit bills might have "fooled" Drouin in the midst of
conducting an arrest, but when he had the opportunity to look at
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the bills without distraction, he recognized them as fake. We have
no trouble concluding that there is a high degree of probability
that the result would have been the same if a jail official had
inspected the bills.
Third, given the particular facts of this case, the
application of this exception will not "provide an incentive for
police misconduct or significantly weaken constitutional
protections." Almeida, 434 F.3d at 28. Drouin arrested Almeida
for reasons unrelated to the seized money. At the time of the
arrest, Drouin was fully aware that the jail would take Alemida's
money and other property when he was booked – he testified that the
money "would have went to the jail with him and I probably would
have just taken it from his property there." Under these
circumstances, application of the exception will not incentivize
unconstitutional behavior, because the seizure of the money gave
the police no particular investigative advantage. See id. at 29.
Therefore, we hold that the inevitable discovery
exception applies to Drouin's seizure of the money in Almeida's
wallet and affirm the district court's denial of Almeida's motion
to suppress with respect to that issue.
B. Motions in Limine
Prior to trial, the government filed a motion in limine
seeking the admission of evidence related to the Oak Pond bills,
which Almeida opposed. Almeida filed a motion in limine to exclude
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evidence that he falsely identified himself to Drouin as Joshua
Almeida during the initial stop. The district court granted the
government's motion and denied Almeida's.
We review these rulings for plain error, because Almeida
did not renew his objection to the challenged evidence at trial.
As we have explained:
[i]f an in limine ruling excludes evidence
unconditionally, the adversely-affected party need take
no additional steps to preserve the issue for appeal,
which means abuse-of-discretion review will control. But
if the ruling is merely tentative and clearly invites the
party to offer the evidence at trial under the ruling's
terms, that party must follow up on the invitation or
else plain-error review will hold sway.
Rodríguez v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st
Cir. 2011) (alterations, citations, and internal quotation marks
omitted). Here, while the rulings in limine admitted the
challenged evidence, Almeida has not argued that those rulings were
final rather than tentative, so Almeida's failure to renew his
objection at trial triggers plain error review on appeal. "To
establish plain error, a party must show that there was error, that
it was plain, and that it affected the party's substantial rights;
an appellate court may then notice the error only if it seriously
affect[ed] the fairness, integrity, or public reputation of
judicial proceedings." Long v. Fairbank Reconstruction Corp., 701
F.3d 1, 5 (1st Cir. 2012) (per curiam) (internal quotation marks
omitted). Almeida has not met this high standard.
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1. The Oak Pond Bills
Almeida claims that evidence related to the Oak Pond
bills was propensity evidence inadmissible under Federal Rule of
Evidence 404(b). According to Almeida, the evidence only tends to
prove that "since he apparently possessed counterfeit money on a
prior occasion, he must have possessed it on the occasion of his
arrest." He argues further that "[e]ven if such evidence suggested
intent . . . [it] included 'bad character or propensity as a
necessary link in the inferential chain' and any probative value
was substantially outweighed by the danger of unfair prejudice."
The district court questioned whether evidence of the Oak
Pond bills was propensity evidence at all, suggesting that "[i]t's
arguably part of the res gestae of the transaction in terms of the
defendant's alleged use of certain pattern bills in relationship to
what was found in the two locations." It decided, however, that
even "[i]f it is Rule 404(b) evidence, . . . it does come in under
404(b)(2) because it can be used to show evidence of [absence of]
mistake or lack of accident, knowledge of what was going on[,] and
I don't find any unfair prejudice under Rule 403." We see no error
at all in this decision, much less plain error.
This circuit uses a two-part test to evaluate the
admissibility of evidence under Rule 404(b). United States v.
Appolon, 715 F.3d 362, 373 (1st Cir. 2013). We determine first
whether the proffered evidence has "special relevance, such as
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proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident." Id. at 372–73
(citation and internal quotation marks omitted). "If it does, we
then apply Rule 403 to ascertain whether the evidence's probative
value is substantially outweighed by the danger of unfair
prejudice." Id. at 373.
The evidence of the Oak Pond bills easily satisfies both
parts of the test. The existence of counterfeit bills at a
separate location, bearing Almeida's fingerprints and serial
numbers matching pattern bills found in Almeida's wallet, is
probative of Almeida's knowledge and intent regarding the
counterfeit money found in the truck – the jury could decide that
this evidence weighed against the conclusion that Almeida's
possession of counterfeit bills in the truck was unknowing or
unintentional. Thus, we agree with the district court that this
evidence has "special relevance." Id.We also agree with the district court that this evidence
is not unfairly prejudicial. As we have observed numerous times,
"all evidence is meant to be prejudicial; it is only unfair
prejudice which must be avoided." Id. The term "unfair prejudice"
usually refers to "evidence that invites the jury to render a
verdict on an improper emotional basis." United States v.
Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000). Almeida has not
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shown anything of the sort here. In sum, we find no error in the
district court's decision to admit evidence of the Oak Pond bills.
2. False Identification
Almeida also raises a Rule 404(b) challenge to the
evidence related to his false identification. He argues that he
"was charged with a crime saturated in the concept of deceit. To
allow testimony regarding his provision of deceitful information
. . . regarding ultimately uncharged conduct was a clear invitation
to the jury to reach a conclusion based on inappropriate character
evidence."
Relying on United States v. Wallace, 461 F.3d 15 (1st
Cir. 2006), the district court admitted the evidence as "probative
of a guilty [conscience] or consciousness of guilt." It further
explained that to the extent the evidence fell under Rule 404(b),
"it would be admissible under 404(b)(2) because it does go to proof
of intent and knowledge and I don't find unfair prejudice under
Rule 403." We see no error in the district court's decision.
On appeal, Almeida claims that "the 'consciousness of
guilt' referred to by the trial court was consciousness of [an]
uncharged motor vehicle offense and not the eventual federal
charges that were not being investigated at the time he was
arrested." But Wallace forecloses this argument. In that case,
"we rejected a broad rule that would bar alias evidence whenever a
defendant commits more than one crime," because "such a rule would
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ignore the substantial possibility that the defendant is using the
alias to evade detection for all his crimes, including the one
charged." Wallace, 461 F.3d at 26 (alteration and internal
quotation marks omitted).
There was no reason in this case for the district court
to prevent the jury from considering whether the false
identification revealed a consciousness of guilt of counterfeiting,
even if Almeida was engaged in other criminal activity at the same
time. While we have warned that such evidence "is controversial
and must be handled with care," id. at 25 (alteration and internal
quotation marks omitted), the district court was well aware of our
admonition and offered the defense a cautionary instruction for the
jury.
Under these circumstances, the district court did not err
in holding that the evidence was sufficiently probative to be
admissible under Rule 404(b). Neither did it err in finding no
unfair prejudice under Rule 403. As with the evidence of the Oak
Pond bills, Almeida has failed to point out any unfairness beyond
the ordinary prejudice inherent in all evidence. We therefore
affirm the district court's denial of Almeida's motion in limine
seeking the exclusion of evidence related to his false
identification.
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C. Sufficiency of the Evidence
At trial, after the close of the government's case,
Almeida made an oral motion for acquittal, arguing that the
government had failed to meet its burden to prove Almeida's intent
to defraud as required by 18 U.S.C. § 472. The district court
decided there was enough evidence of intent to go to the jury and
denied the motion. On appeal, Almeida renews his argument that the
evidence presented at trial was insufficient to prove intent. We
disagree.
We review claims of insufficient evidence de novo,
"considering whether the evidence, viewed in the light most
favorable to the prosecution, would allow a rational jury to find
all the elements of the crime beyond a reasonable doubt." United
States v. Mousli, 511 F.3d 7, 14 (1st Cir. 2007) (internal
quotation marks omitted); see also United States v. Hall, 434 F.3d
42, 49 (1st Cir. 2006). "The requisite fraudulent intent required
by . . . 18 U.S.C. § 472[] may be inferred from surrounding
circumstances or circumstantial evidence and thus need not be
proven directly. Courts may look to surrounding circumstances to
supply inferences of knowledge which adequately prove intent."
Mousli, 511 F.3d at 16 (citations omitted); see also United States
v. Silva, 742 F.3d 1, 9 (1st Cir. 2014).
There is no need to catalogue every piece of evidence
presented at trial; two key points will suffice. The government
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presented evidence that Almeida possessed fourteen pattern notes
that matched numerous counterfeit bills found in the truck and
along Oak Pond Road. The jury could easily infer from the "number
and variety of bills" that Almeida's possession of them was not
unwitting or coincidental; rather he "was engaged in an ongoing
effort to produce . . . fake currency with the intent of using it."
Mousli, 511 F.3d at 16. The jury also heard evidence that twelve
counterfeit bills with serial numbers matching the pattern bills
were put into circulation in areas near where Almeida lived and
vacationed. That evidence "support[s] an inference that [Almeida]
had previously passed the bills in commercial transactions."
Silva, 742 F.3d at 10. These facts provide sufficient
circumstantial evidence of intent to sustain a conviction under 18
U.S.C. § 472.
Almeida's suggestion that the counterfeit bills were of
such poor quality that he could not have intended to use them to
defraud is unpersuasive. First, it directly contradicts his
argument that the discovery of the counterfeit bills at the jail
was not inevitable because the bills looked authentic enough to
fool Officer Drouin at the scene of the arrest. But even setting
that contradiction aside, there was ample evidence that the bills
were of sufficient quality for a reasonable jury to infer Almeida's
intent to defraud. Twelve counterfeit bills matching the pattern
bills found in Almeida's possession were successfully passed around
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the time of Almeida's arrest and were discovered only when the
people who had accepted them in good faith presented them to banks.
Moreover, even were there not "evidence [of] a high degree of
likeness" between the counterfeit bills and the real ones, that
would not "prevent proof by other means of intent to defraud."
Mousli 511 F.3d at 16. Here, the government presented enough
circumstantial evidence to allow a jury to infer Almeida's intent
to defraud. Thus, we affirm the district court's denial of the
motion for acquittal.
D. Sentencing
Almeida attacks his fifty-one-month sentence on three
fronts: the calculation of his criminal history category ("CHC"),
the application of sentencing guideline enhancements to his base
offense level ("BOL"), and the disparity between his sentence and
that of his co-defendant, Martin. He has failed to identify any
errors, however, and we therefore affirm the sentence as handed
down by the district court.
1. Criminal History Category
With respect to his CHC, Almeida does not contend that
the district court made any factual errors in the calculation.
Rather, he argues that a downward departure was appropriate in this
case because the CHC "significantly over-represents his criminal
history." The district court considered this argument at the
sentencing hearing and came to the opposite conclusion: "I find
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that the criminal history here does not overrepresent in light of
the defendant's history of recurrent criminal law violations,
despite sentences that have been imposed which involve custody of
either small amounts or large amounts."
We review a district court's decision whether to depart
from the CHC for abuse of discretion. United States v. Tavares, 93
F.3d 10, 17 (1st Cir. 1996). Here, the district court did not
commit an error of any sort; it simply disagreed with Almeida about
the seriousness of his criminal history. A disagreement of that
nature does not approach an abuse of discretion. Accordingly, it
is not grounds for reversal on appeal.
2. Sentencing Guideline Enhancements
Almeida claims that the district court erred in applying
enhancements to his BOL for loss in excess of $10,000 under
U.S.S.G. § 2B1.1(b)(1)(C), the manufacture or production of
counterfeit obligations under U.S.S.G. § 2B5.1(b)(2), and
obstruction of justice under U.S.S.G. § 3C1.1. "As a general
matter, we review a sentencing court's legal determinations of the
Sentencing Guidelines' meaning and scope de novo and its factual
determinations for clear error." United States v. Bryant, 571 F.3d
147, 153 (1st Cir. 2009); see also United States v. Doe, 741 F.3d
217, 235 (1st Cir. 2013). It is the government's burden at
sentencing to prove sentencing enhancement factors by a
preponderance of the evidence, and a district court may base its
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determinations on "any evidence that it reasonably finds to be
reliable." United States v. Walker, 665 F.3d 212, 232 (1st Cir.
2011).
Section 2B1.1 increases a defendant's BOL for various
forms of theft and fraud, including counterfeiting, based on the
amount of loss caused by the defendant. U.S.S.G. § 2B1.1; United
States v. Appollon, 695 F.3d 44, 66 (1st Cir. 2012). As a general
rule, we measure loss under § 2B1.1 as "the greater of actual loss
or intended loss." Appollon, 695 F.3d at 66. "Intended loss is
the loss that the defendant could have reasonably expected to occur
at the time he or she perpetuated the fraud." Id. at 67.
Here, the district court imposed a four-level enhancement
under § 2B1.1(b)(1)(C) for a loss greater than $10,000. It found
as a factual matter that Almeida was responsible for the
counterfeit money in the truck as well as the Oak Pond bills,
totaling $10,270, based on his possession of the pattern bills and
his fingerprints on the Oak Pond bills. These facts are a
sufficient basis for the district court to infer by a preponderance
of the evidence that Almeida was responsible for producing over
$10,000 in counterfeit bills. It follows that Almeida could
reasonably expect over $10,000 in loss to result. Therefore the
court did not err in applying § 2B1.1(b)(1)(C).
Section 2B5.1 provides for a two-level enhancement "if
the defendant . . . manufactured or produced any counterfeit
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obligation or security of the United States, or possessed or had
custody of or control over a counterfeiting device or materials
used for counterfeiting." U.S.S.G. § 2B5.1(b)(2)(A). On appeal,
Almeida argues primarily that pattern notes are not "a
counterfeiting device or materials used for counterfeiting." The
district court stated quite clearly, however, that it was "not
going to rely on the possession of material used for
counterfeiting, but instead that the defendant did manufacture or
produce counterfeit obligations." It based this conclusion on
Almeida's possession of the pattern notes and the counterfeit bills
that were produced with them. Again, we find this conclusion
sufficiently supported by the evidence. Thus, Almeida's challenge
to the application of § 2B5.1(b)(2)(A) fails.
The third enhancement imposed by the court was two levels
for obstruction of justice under § 3C1.1. That enhancement was
based on the court's interpretation of the phone calls Almeida made
to his wife from jail, in which he told her "all my shit needs to
be thrown away." The district court reasonably interpreted this
statement as an instruction to dispose of evidence. Having
reviewed the transcript of the calls, we find that the district
court's understanding of Almeida's statement is more plausible than
the interpretation Almeida offers on appeal – that he was referring
to a suitcase full of clothes that he brought with him on vacation.
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Almeida also argues that he could not have been
obstructing the investigation of the counterfeiting charge, because
at the time of the calls he was only facing the false
identification charge. But during the call recorded at 4:39 on
July 6, 2011, prior to the call where Almeida told his wife to
dispose of his things, his wife stated that "they had the Secret
Service looking into everything and stuff like that." The district
court could infer from that statement that Almeida was aware of the
counterfeiting investigation at that time. In sum, the district
court did not err in applying a two-level enhancement for
obstruction of justice under § 3C1.1.
3. Sentencing Disparity
Finally, Almeida points to the disparity between his
sentence of fifty-one months and Martin's sentence of only six
months. He claims that "[t]o deliver a sentence that is
potentially ten times the sentence of a co-defendant is simply not
reasonable." He does not fully develop an argument on this point,
but we construe it as a challenge to the substantive reasonableness
of the sentence. We review substantive reasonableness for abuse of
discretion. United States v. Walker, 665 F.3d 212, 232 (1st Cir.
2011). "[T]he linchpin of a reasonable sentence is a plausible
sentencing rationale and a defensible result." United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008).
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Here, Almeida fails to offer any explanation as to why
the sentences of the two co-defendants should be less disparate.
Merely pointing out the disparity is plainly insufficient to
establish unreasonableness. There are many valid reasons why two
co-defendants might receive dramatically different sentences, and
the district court expressly identified the reasons applicable in
this case. Martin accepted responsibility; he was not connected to
the Oak Pond bills; and he did not engage in obstruction. Under
these circumstances, the district court did not abuse its
discretion in sentencing Almeida to a much harsher penalty than
Martin.
III. Conclusion
For the foregoing reasons, we AFFIRM Almeida's conviction
and sentence.
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