United States of America v. Joseph Kelly

*The Honorable Edmund A. Sargus, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
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 S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J OSEPH KELLY ,
Defendant-Appellant.
;>

1
No. 97-4481
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.*

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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.

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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).

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4 United States v. Kelly No. 97-4481
II
A. Admission of Evidence of Prior Convictions
Kelly filed a pretrial motion in limine to exclude from the
government’s case in chief any evidence of his previous
counterfeiting convictions – three in number – and the
conduct underlying those convictions. The record does not
disclose that the district court ever ruled on this motion.
Lolakis testified during the presentation of the
government’s case that he met Kelly in prison in 1992 and
that Kelly had been incarcerated for counterfeiting. No
objection was made to this testimony. In the absence of a
contemporaneous objection we must apply a “plain error”
standard of review unless the motion in limine operated to
preserve the issue for appeal. In that event we must apply an
“abuse of discretion” standard. See Rule 103, Fed. R. Evid.,
and United States v. Levy, 904 F.2d 1026, 1029-30 (6th Cir.
1990), cert. denied, 498 U.S. 1091 (1991).
Faced with similar circumstances, a panel of this court
determined, in an unpublished opinion, that a motion in
limine does not preserve evidentiary questions for appeal.
We find the panel’s reasoning persuasive:
“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).
No. 97-4481 United States v. Kelly 9
determination under a “clear error” standard. See Stanley, 23
F.3d 1085.
Although the sentencing guidelines do not specifically
define the term “leader,” courts are invited to consider, in this
connection, such factors as the right to a larger share of the
profits, the degree of participation in planning or organizing
the activity, the nature of the defendant’s participation, the
nature and scope of the criminal activity, and the exercise of
decision making authority. See U.S.S.G. § 3B1.1 application
note 3. In the case at bar the record shows that Kelly was to
receive a full 25 percent of the profits, while Lolakis was to
split the rest with the six men recruited to pass the counterfeit
bills. Kelly was involved in plans for the operation, and he
selected and purchased the equipment and supplies used. He
was also responsible for printing the counterfeit currency; it
was Kelly’s expertise alone that made the operation possible.
The fact that Lolakis also took a leadership role does not
preclude a leadership adjustment in Kelly’s offense level. See
U.S.S.G. § 3B1.1 application note 4 (“There can, of course,
be more than one person who qualifies as a leader or
organizer of a criminal association or conspiracy”). We find
no clear error in the district court’s determination.
AFFIRMED.

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8 United States v. Kelly No. 97-4481
currency before it can be considered counterfeit. See United
States v. Taftsiou, 144 F.3d 287, 290 (3d. Cir.), cert. denied,
525 U.S. 899 (1998), and cases cited therein. These cases
deal with the substantive crime of counterfeiting, however,
and not with the sentencing guidelines’ rather expansive
instructions on what sort of “counterfeit” currency should be
counted in calculating a convicted counterfeiter’s offense
level.
As used in the relevant guideline, “‘[c]ounterfeit’ . . . means
an instrument that purports to be genuine but is not, because
it has been falsely made or manufactured in its entirety [as
opposed to genuine instruments that have merely been
altered].” U.S.S.G. § 2B5.1 application note 3. We have not
had occasion to construe this definition in a published
opinion, but several of our sister circuits have construed it to
require something less than bills of “passable” quality. See
United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.
1997). At least two circuits have found that bills printed on
only one side “purported to be genuine.” See United States v.
Ramacci, 15 F.3d 75, 78 (7th Cir. 1994), and United States v.
Lamere, 980 F.2d 506, 509, 513-14 (8th Cir. 1992). The
history of § 2B5.1(b)(1) supports this interpretation; a
proposed amendment that would have excluded defective
items from consideration was rejected. See Webster, 108 F.3d
at 1158, Ramacci, 15 F.3d at 78, and Lamere, 980 F.2d at
512. We agree with the view set forth in the cited cases.
Kelly’s unfinished counterfeit notes lacked only the
Treasury seal, Federal Reserve seal, and Federal Reserve
numbers. The bills were near enough to completion, we
believe, to “purport to be genuine.” The district court did not
err in counting the entire $2.6 million.
E. Adjustment for Leadership Role
Kelly’s final argument is that his guideline offense level
should not have been adjusted under U.S.S.G. § 3B1.1(c) on
the strength of his supposed “leadership role” in the
conspiracy. We review the district court’s leadership role
No. 97-4481 United States v. Kelly 5
Decisions from other circuits to the same effect include
Petty v. Ideco, Div. of Dresser Indus., Inc., 761 F.2d 1146,
1150 (5th Cir.1985) (“[A] party whose motion in limine is
overruled must renew his objection when the error he sought
to prevent is about to occur at trial”), and Adams v. Fuqua
Indus., 820 F.2d 271, 274 (8th Cir.1987) (noting in dictum
that “a motion in limine does not ordinarily preserve error [in
evidentiary rulings] for appellate review. . .”). But see
American Home Assurance Co. v. Sunshine Supermarket,
Inc., 753 F.2d 321, 324 (3rd Cir.1985), and Thronson v.
Meisels, 800 F.2d 136, 142 (7th Cir.1986).
The district court’s allowance of Lolakis’ unobjected-to
testimony regarding Kelly’s prior conviction does not, we
believe, constitute plain error. The information was integral
to the facts underlying the indictment and may well have been
indicative of Kelly’s specific intent to defraud, an element of
the charged crimes. See, e.g., United States v. Benton, 852
F.2d 1456, 1468 (6th Cir.), cert. denied, 488 U.S. 993 (1988)
(allowing evidence of prior acceptance of bribes to show
intent to accept drug protection money). Were it not for Fed.
R. Evid. 403, therefore, the evidence would almost certainly
have been admissible under Rule 404(b). See United States
v. Crachy, 800 F.2d 83, 87 (6th Cir. 1986), cert. denied, 479
U.S.1042 (1987), and United States v. Hamilton, 684 F.2d
380, 384 (6th Cir.), cert. denied, 459 U.S. 976 (1982). Rule
403 permits the exclusion of relevant evidence if its probative
value is substantially outweighed by the danger of unfair
prejudice; viewing the record as a whole, we cannot say the
district court was clearly required to find that any such danger
substantially outweighed the probative value of the evidence
here. See United States v. Khan, 969 F.2d 218, 222 (6th Cir.
1992).
B. Sufficiency of the Evidence
“The standard for evaluating claims that a conviction is not
supported by sufficient evidence presents a very difficult
hurdle for the criminal appellant. . . . ‘The relevant question
is whether, after viewing the evidence in the light most

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6 United States v. Kelly No. 97-4481
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Maxwell, 160 F.3d 1071,
1077 (6th Cir. 1998) (quoting Jackson v. Virginia, 443 U.S.
307 (1979) (emphasis in original)).
Kelly contends that the government’s evidence was
insufficient because the co-conspirators who testified against
him were, in light of their confessed crimes, so unreliable that
no rational trier of fact could have believed what they said.
But determining the credibility of witnesses is a task for the
jury, not this court. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993), cert. denied, 510 U.S. 1130 (1994).
The jury was obviously entitled to accept the testimony of
Kelly’s several co-conspirators and reject Kelly’s own
testimony. Other witnesses identified Kelly as the purchaser
of the printing press and supplies, moreover, and his
fingerprints were retrieved from several of the plates used in
the press. The evidence of Kelly’s guilt was more than
sufficient to support a conviction.
C. Multiplicity of the Indictment
Kelly contends that Counts I and II of the indictment
against him were multiplicitous because the overt acts of the
conspiracy recited in Count I were the same acts that formed
the basis for the substantive counterfeiting crime alleged in
Count II. We find no merit in this argument.
A defendant may be charged with multiple offenses based
on the same underlying conduct as long as each offense
requires proof of an element not required by the other. See
Blockburger v. United States, 284 U.S. 299, 304 (1932). In
Kelly’s case the conspiracy charge required proof of an
agreement between two or more persons – an element not
required to be shown in proving the substantive counterfeiting
charge – while the latter charge, unlike the former, required
proof that the defendant actually manufactured counterfeit
notes. The Supreme Court has explicitly stated that “it is not
material that overt acts charged in the conspiracy count[] were
No. 97-4481 United States v. Kelly 7
also charged and proved as substantive offenses.” Pinkerton
v. United States, 328 U.S. 640, 644 (1946).
Although it is well established that a conspiracy charge can
legitimately be added to a substantive charge, there are certain
exceptions to this general rule:
“One is where the agreement of two persons is necessary
for the completion of the substantive crime and there is
no ingredient in the conspiracy which is not present in
the completed crime. . . . Another is where the definition
of the substantive offense excludes from punishment for
conspiracy one who voluntarily participates in another’s
crime.” Id. at 643 (citations omitted).
The charges against Kelly did not come within any of the
exceptions to the rule.
Kelly further asserts, in connection with his multiplicity
argument, that the language of the conspiracy charge shifted
the burden of proof to him and that the district court should
have made a finding prior to trial as to when the alleged
conspiracy began. These assertions are without merit.
D. Calculation of Sentence Based on Partially-
Manufactured Counterfeit Currency
In calculating Kelly’s guideline sentence range, the district
court used the full $2.6 million in counterfeit currency that
Kelly and Lolakis produced. When Kelly left Ohio for the
last time, however, the manufacturing process was incomplete
as to a portion of this total. Kelly argues that only the bogus
$15,000 introduced at trial should be counted – an argument
acceptance of which would mean a 3-level increase in his
offense level as opposed to a 13-level increase. See U.S.S.G.
§ 2F1.1. Because the argument raises an issue of guideline
interpretation, our review is de novo. See United States v.
Stanley, 23 F.3d 1084, 1085 (6th Cir. 1994).
Kelly draws our attention to a number of cases holding that
fake currency must bear an adequate resemblance to real

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