United States v. Whitehead

13-3666-cr
United States v. Whitehead
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 3rd day of October, two thousand fourteen.
PRESENT: RALPH K. WINTER,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 13-3666-cr
SHAUN WHITEHEAD,
Defendant-Appellant.
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APPEARING FOR APPELLANT: FRANCIS LEE O’REILLY, O’Reilly & Shaw
LLC, Southport, Connecticut.
APPEARING FOR APPELLEE: FELICE M. DUFFY (Edward Chang, on the
brief), Assistant United States Attorneys, for
Deirdre M. Daly, United States Attorney for the
District of Connecticut, New Haven,
Connecticut.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Alfred V. Covello, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 9, 2013, is AFFIRMED.
Defendant Shaun Whitehead, who stands convicted after a jury trial of five counts
of passing counterfeit one-hundred dollar bills, see 18 U.S.C. § 472, argues that the trial
evidence was insufficient to prove his knowledge that the bills were counterfeit or his
intent to defraud. We review a sufficiency challenge de novo and must affirm if, “viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. Kozeny,
667 F.3d 122, 139 (2d Cir. 2011). We assume the parties’ familiarity with the facts and
the record of prior proceedings, which we reference only as necessary to explain our
decision to affirm.
On appeal, Whitehead does not contest that he used counterfeit bills on five
occasions to purchase iPads and Bose headphones, which he then returned to different
store locations for non-counterfeit cash refunds. Rather, Whitehead asserts that the
evidence failed to prove beyond a reasonable doubt his knowledge that the bills he used
were counterfeit or his intent to defraud. Neither the law nor the facts supports this
argument.
The law has long recognized that knowledge and intent must frequently be proved
through circumstantial evidence. See United States v. MacPherson, 424 F.3d 183, 189–90
(2d Cir. 2005). Here, the circumstantial evidence of Whitehead’s culpable mens rea was
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compelling. First, Whitehead engaged in an unusual pattern of traveling across the
tri-state area to purchase the same expensive items, each time with counterfeit one-hundred
dollar bills, and each time returning the items to a different store within days for a cash
refund. See id. at 190–91 (holding that jury may infer guilty intent from pattern of
conduct); see also United States v. Sheiner, 410 F.2d 337, 340 (2d Cir. 1969) (holding that
guilty knowledge may properly be inferred from variety of circumstances, including
“number of counterfeits passed over a short period of time”). Indeed, an expert testified
that buying and returning expensive items is a common method for swapping large
denomination counterfeit bills for genuine currency. See United States v. Abdulle, 564
F.3d 119, 129 (2d Cir. 2009) (finding that conviction was supported in part by expert
testimony that defendant’s behavior was consistent with criminal practices). Second,
multiple witnesses testified to the suspect nature of the bills, including their fake
appearance, feel, and smell. Moreover, all of the counterfeit bills used by Whitehead were
admitted into evidence, enabling the jury to assess for itself their readily apparent
counterfeit nature. See United States v. Asbury, 586 F.2d 973, 978 (2d Cir. 1978)
(upholding counterfeiting convictions against sufficiency challenge where “jurors
examined the bills and could conclude that their counterfeit nature must have been readily
apparent to [defendants]”). Third, witnesses testified to Whitehead’s nervousness while
using the counterfeit bills and his quick exit from several stores after doing so. Fourth, the
prosecution presented evidence that Whitehead had lied about why he was rushing from
the scene of one of his acts, falsely stating that he had children waiting in his car. Fifth,
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when arrested, Whitehead (a) attempted to hide various receipts from the stores he had
defrauded; (b) possessed a fake Florida driver’s license with his picture but a different
name; and (c) told an arresting officer that he had “nothing to say” because the case against
him was “rock solid.” When these circumstances are viewed in the light most favorable to
the prosecution, a reasonable jury certainly could have concluded that Whitehead
knowingly used counterfeit currency with intent to defraud.
In urging otherwise, Whitehead argues that (1) no direct evidence was presented
wherein he admitted knowledge of the bills’ inauthenticity; (2) on one occasion, he did not
flee the scene quickly; (3) one witness testified that he did not appear nervous when using
the counterfeit bills; (4) there were other explanations for his leaving one of the stores
quickly; and (5) several witnesses testified to the high quality of the counterfeit bills.
Whitehead’s first argument is defeated by precedent. See United States v. Lorenzo, 534
F.3d 153, 159 (2d Cir. 2008) (observing that “[d]irect evidence is not required; in fact, the
government is entitled to prove its case solely through circumstantial evidence, provided,
of course, that the government still demonstrates each element of the charged offense
beyond a reasonable doubt” (internal quotation marks omitted)); see also United States v.
MacPherson, 424 F.3d at 189–90 (collecting cases). The same conclusion obtains as to
Whitehead’s remaining arguments. See United States v. Praddy, 725 F.3d 147, 152 (2d
Cir. 2013) (“Choices between competing inferences and assessments of witness credibility
lie solely within the province of the jury. The jury is free to believe part, and to disbelieve
part, of any given witness’s testimony. Where there are conflicts in the testimony, we
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must defer to the jury’s resolution of the weight of the evidence and the credibility of the
witnesses. . . . These principles apply whether the evidence being reviewed is direct or
circumstantial.” (citations, internal quotation marks, brackets, and ellipses omitted)).
Accordingly, Whitehead’s sufficiency challenge fails on the merits.
We have considered Whitehead’s remaining arguments and conclude that they are
without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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