United States of America v.  Ashon Leftenant

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4731 
ASHON LEFTENANT,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-02-78)
Argued: June 4, 2003
Decided: August 21, 2003
Before WIDENER, WILKINSON, and KING, Circuit Judges.
Affirmed in part and vacated in part by published opinion. Judge King
wrote the opinion, in which Judge Widener and Judge Wilkinson
joined.
COUNSEL
ARGUED: Paul Geoffrey Gill, Assistant Federal Public Defender,
Richmond, Virginia, for Appellant. Sara Elizabeth Flannery, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Richmond,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Richmond, Virginia, for Appellee.

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OPINION
KING, Circuit Judge:
On May 29, 2002, Ashon Leftenant was convicted of six counts of
possessing counterfeit obligations of the United States, in violation of
18 U.S.C. § 472. On appeal, he has raised several issues. First, he
asserts that his indictment should have been dismissed because of a
violation of the Speedy Trial Act. Second, he contends that the district
court erred in admitting evidence of uncharged counterfeiting activity.
Third, he insists that the evidence against him was insufficient to sus-
tain his convictions. Finally, he maintains that the charges in the
indictment were multiplicitous. As explained below, we reject his first
three contentions. However, as the Government now concedes, Lefte-
nant was erroneously convicted of six offenses when the evidence
established only a single act of possession. Thus, we vacate all save
one of Leftenant’s convictions.
I.
A.
On October 13, 2001, police officers responded to a call from
Loyce Bailey, the manager of a Hardee’s restaurant on Temple Ave-
nue in Colonial Heights, Virginia. Bailey reported that a black male
wearing an Atlanta Falcons hat had attempted to pass a counterfeit
twenty-dollar bill. After the bill reacted to a counterfeit detection pen
used by one of the restaurant’s employees, Bailey advised Freeman
that Hardee’s would not accept it. Freeman then took the bill and left
the restaurant, but he remained in the Hardee’s parking lot with some
friends.
Three police officers responded separately to Bailey’s call, arriving
at the Hardee’s within minutes of one another. The first to arrive,
Officer Richard Wilson, approached a group of individuals who were
standing in the Hardee’s parking lot. The second to arrive, Officer
Steve Hanson, went inside the restaurant and spoke to Bailey, who
verified that the counterfeit bill had been returned to the suspect, and
that it had a black "X" on it from the counterfeit detection pen.
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By this point, a third police officer, Detective Steve Kolev, had
arrived on the scene, and he had joined Officer Wilson in questioning
individuals in the parking lot. William Freeman, an African-American
male, was one of the individuals in the parking lot, and he was wear-
ing an Atlanta Falcons hat. Because Freeman matched the description
of the person who had attempted to use the counterfeit bill, Officer
Wilson separated him from the group and patted him down for weap-
ons. During the pat-down search, Wilson discovered a roll of money
in one of Freeman’s pockets, including fifteen counterfeit bills. None
of these bills, however, bore the incriminating black "X."
Officer Wilson arrested Freeman for possession of counterfeit bills
and transported him to police headquarters. During the trip, Freeman
advised Wilson that, after Bailey advised him that the bill he had ten-
dered was counterfeit, he had ripped it up. Wilson promptly radioed
that information to the officers at the Hardee’s. Officer Hanson and
Detective Kolev then searched the area surrounding the Hardee’s res-
taurant for the remnants of the bill, but they did not find anything.
After their search, Detective Kolev ran record checks on the
remaining individuals in the parking lot, and he discovered that one
of them, Derrick Ward, was the subject of an outstanding arrest war-
rant in Pennsylvania. Kolev arrested Ward and placed him in a police
cruiser. Ward advised the officers that he had driven to the Hardee’s
in his girlfriend’s Range Rover, and that he did not want anyone else
driving the vehicle, which remained parked in the Hardee’s lot. The
restaurant manager, Loyce Bailey, in turn, advised the officers that he
wanted the Range Rover removed from the premises.
At some point, the officers asked Leftenant if he had the keys to
the Range Rover, and Leftenant reached into his right-hand pocket to
search for them. As Leftenant removed his hand from his pocket, a
twenty-dollar bill fell to the ground. It was folded such that a black
"X" was clearly visible. On seeing the twenty-dollar bill fall from his
pocket, Leftenant appeared shocked. Officer Hanson promptly
retrieved the bill and placed Leftenant under arrest. When the officers
searched Leftenant incident to the arrest, they discovered ten addi-
tional counterfeit bills. Five of these counterfeits were twenty-dollar
bills, and the other five were fifty-dollar bills.
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B.
On November 13, 2001, criminal complaints were filed against
Leftenant and Freeman in the Eastern District of Virginia, charging
them with possession of counterfeit obligations of the United States,
in violation of 18 U.S.C. § 470. On November 26, 2001, Leftenant
and Freeman were arrested in connection with this charge. Two days
later, on November 28th, the Government sought to amend the com-
plaints to clarify that they intended to charge a violation of 18 U.S.C.
§ 472, rather than § 470, because § 470 applies only to acts committed
outside the United States. After a detention hearing on November 28,
2001, and a bond reconsideration hearing conducted six days later,
Leftenant was released on a personal recognizance bond on December
4, 2001.1
Thereafter, on December 28, 2001, the Government gave Leftenant
and Freeman the opportunity to plead guilty to a misdemeanor charge.
On that date, the Government filed a criminal information in the dis-
trict court, charging Leftenant and Freeman with a misdemeanor
offense, namely, possession of paper similar in size and shape to law-
ful currency with the intent to use it fraudulently, in violation of 18
U.S.C. § 491(b). On January 17, 2002, Leftenant and Freeman were
arraigned on this misdemeanor charge, and trial was scheduled for
March 7, 2002. On January 22, 2002, Freeman pled guilty to the mis-
demeanor, and he was later sentenced to three years of probation.
After a breakdown in plea negotiations with Leftenant, however,
the Government discontinued its effort to prosecute him on the misde-
meanor charge, and it instead presented the grand jury with an indict-
ment charging felony possession of counterfeit bills. In particular, the
indictment charged Leftenant with violating 18 U.S.C. § 472. Because
Leftenant possessed groups of bills with six separate and distinct
serial numbers, the indictment charged six counts of felony posses-
1From December 4, 2001, until May of 2002, Leftenant remained free
on bond. On May 29, 2002, however, after he was convicted of the § 472
offenses, his bond was revoked.
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sion. The grand jury returned the indictment on March 5, 2002, and
a jury trial was scheduled for May 29, 2002.2
On March 15, 2002, Leftenant moved to dismiss the indictment,
maintaining that it was filed more than thirty days after his arrest on
November 26, 2001, a delay he asserted violated the Speedy Trial Act
(the "STA"). See 18 U.S.C. § 3161(b). Leftenant also asserted that the
six counts in the indictment were multiplicitous. The court denied the
motion from the bench on May 8, 2002, United States v. Leftenant,
Transcript of Motion Hearing, No. 3:02CR078, at 7-10 (E.D. Va. May
8, 2002), and it entered a corresponding order the following day,
United States v. Leftenant, Order, No. 3:02CR078 (E.D. Va. May 9,
2002). Without addressing the multiplicity issue, the court concluded
that the STA had not been violated, reasoning that: (1) the filing of
the § 491(b) information satisfied the STA’s requirements, and
although the information had been filed late, Leftenant had waived
any right to object to its timeliness; and (2) the STA was not, in any
event, implicated by the filing of the indictment on March 5, 2002,
because it charged a different offense than the criminal complaint.
On May 28, 2002, the day before his trial, Leftenant filed a motion
in limine, asserting that the Government should not be permitted to
introduce into evidence certain Secret Service records (the "Secret
Service records"), which documented counterfeiting activity for the
same serial numbers in the Virginia area before and after his arrest.
Prior to trial, the court denied the motion. United States v. Leftenant,
Transcript of Motion Hearing, No. 3:02CR078, at 5 (E.D. Va. May
29, 2002).
Following a one-day jury trial, conducted on May 29, 2002, Lefte-
nant was convicted of all six counts. Thereafter, pursuant to Rules
29(c) and 33 of the Federal Rules of Criminal Procedure, he filed a
motion for judgment of acquittal and a motion for a new trial. In sup-
port thereof, he contended that the evidence was insufficient to sup-
port his convictions; that the court should have dismissed the
2The Speedy Trial Act requires a trial to "commence within seventy
days from the filing date (and making public) of the information or
indictment." 18 U.S.C. § 3161(c)(1). Leftenant has not raised any issue
with respect to this seventy day rule.
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indictment pursuant to the STA; that the Secret Service records
should not have been admitted against him; and that the six counts of
the indictment were multiplicitous. After hearing argument on July 7,
2002, the court denied the motions. United States v. Leftenant, Tran-
script of Motion Hearing, No. 3:02CR78, at 8-11 (E.D. Va. July 7,
2002).3
On August 28, 2002, the district court sentenced Leftenant to six
concurrent prison terms of twelve months each and to six concurrent
terms of three years of supervised release. The court also imposed a
$100 special assessment for each count. Leftenant has filed a timely
appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s interpretation of the STA,
while we review any of the court’s related factual findings for clear
error. United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996).
Second, we review a district court’s evidentiary rulings for abuse of
discretion. United States v. Godwin, 272 F.3d 659, 670 (4th Cir.
2001), cert. denied, 535 U.S. 1069 (2002). Third, in assessing a chal-
lenge to the sufficiency of evidence, we must uphold a guilty verdict
if, viewing the evidence in the light most favorable to the Govern-
ment, there is substantial evidence to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942); see also United States v. Myers, 280
F.3d 407, 415 (4th Cir.), cert. denied, 123 S. Ct. 53 (2002). Finally,
we review de novo a claim that charges in an indictment are multipli-
citous. United States v. Stewart, 256 F.3d 231, 247 (4th Cir.), cert.
denied, 534 U.S. 1049 (2001).
III.
A.
Leftenant first contends that the district court was obliged to dis-
miss the indictment because it was returned more than thirty days
3After ruling from the bench on July 7, 2002, the court entered a sum-
mary order denying both motions. United States v. Leftenant, Order, No.
3:02CR78 (E.D. Va. July 10, 2002).
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after his arrest, a delay that he maintains contravened the speedy
indictment provision of the STA, 18 U.S.C. § 3161(b). The Govern-
ment disagrees, contending that the filing of the information within
the thirty day period of 18 U.S.C. § 3161(b) satisfied the STA’s
speedy indictment requirement. As explained below, the prosecution
of Leftenant did not contravene the STA, but our resolution of this
issue is premised on grounds other than those suggested by the Gov-
ernment.
1.
The STA requires that a defendant be indicted within thirty days
of arrest. See 18 U.S.C. § 3161(b); United States v. Williams, 314
F.3d 552, 556 (11th Cir. 2002) (per curiam). Specifically, § 3161(b)
provides that: "[a]ny information or indictment charging an individual
with the commission of an offense shall be filed within thirty days
from the date on which such individual was arrested or served with
a summons in connection with such charges." 18 U.S.C. § 3161(b).
Importantly, the STA does not limit the Government’s ability to
charge a defendant with offenses unrelated to the charge underlying
his arrest. To the contrary, "[a]n unrelated charge can be brought at
any time." United States v. Heldt, 745 F.2d 1245, 1279 n.9 (9th Cir.
1984); see also United States v. Mosquera, 95 F.3d 1012, 1015 (11th
Cir. 1996) (per curiam) ("[T]he Speedy Trial Act does not guarantee
that an arrested individual indicted within thirty days of his arrest
must, in that thirty-day period, be indicted for every crime known to
the government, failing which he may never be charged." (alteration
in original and internal quotation marks omitted)).
We must first assess whether the criminal complaint filed against
Leftenant charged a violation of § 472, or a violation of § 470. This
is our threshold inquiry because Leftenant’s arrest on November 26,
2001, triggered the running of the STA’s thirty-day speedy indictment
clock only as to the offense for which he was arrested. United States
v. Giwa, 831 F.2d 538, 541 (5th Cir. 1987) ("[I]f the Government fails
to indict a defendant within thirty days of arrest, the Act requires dis-
missal of only the offense or offenses charged in the original com-
plaint." (emphasis in original)). The district court decided that
Leftenant was arrested for violating § 470, and that his arrest trig-
gered the running of the STA clock as to this offense only. Thus,
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according to the court, the indictment could not be untimely under the
STA because it charged violations of § 472, not § 470.
On this point, however, we disagree with the district court and
deem Leftenant’s arrest of November 26, 2001, to have been for a
violation of § 472, rather than § 470. Although the complaint refer-
enced § 470, its language indicates that the Government was, in sub-
stance, charging a violation of § 472. Further, the Government
represented to the magistrate judge at Leftenant’s detention hearing
that its intent had been to charge a violation of § 472, and it sought
to amend the complaint accordingly. In these circumstances, the Gov-
ernment had thirty days — running from November 27, 2001, the day
after Leftenant’s arrest — in which to secure an indictment charging
Leftenant with a violation of § 472. See Stoudenmire, 74 F.3d at 63
(observing that STA clock runs from date after triggering event); see
also United States v. Perez, 217 F.3d 323, 328 n.23 (5th Cir. 2000)
(overlooking "technical error in transcription" in construing charge
alleged in indictment).
2.
The indictment, however, was returned on March 5, 2002, more
than ninety calendar days after Leftenant’s arrest. Even so, the indict-
ment was not necessarily returned outside the STA’s thirty day arrest-
to-indictment period: § 3161(b) does not require that an indictment be
returned within thirty calendar days of arrest. Instead, it requires that
an indictment, in order to be considered timely, be returned within
thirty nonexcludable days. In this regard, the STA provides a list of
periods that are to be excluded in calculating the time within which
an information or indictment must be secured. See 18 U.S.C.
§ 3161(h)(1)-(9). Among the excludable periods are: any period of
delay resulting from other proceedings concerning the defendant, id.
§ 3161(h)(1); any period of delay resulting from the unavailability of
the defendant or an essential witness, id. § 3161(h)(3); any period of
delay resulting from the defendant’s mental incompetence, id.
§ 3161(h)(4); and some periods of delay resulting from trial continu-
ances, id. § 3161(h)(8). Thus, we must next determine which, if any,
of the days between Leftenant’s arrest on November 26, 2001, and his
indictment on March 5, 2002, are subject to exclusion from the thirty-
day period of § 3161(b).
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As explained below, sixty-nine days of this period must be
excluded because of delay from "other proceedings" involving the
defendant. As noted, § 3161(h)(1) renders excludable "any period of
delay resulting from other proceedings concerning the defendant." 18
U.S.C. § 3161(h)(1). This "other proceedings" provision requires that
we first exclude the dates on which pre-trial hearings were conducted.
See United States v. Wright, 990 F.2d 147, 148 (4th Cir. 1993) (hold-
ing that dates of pretrial hearings must be excluded from speedy
indictment calculation). In Leftenant’s case, the trial court spent two
such days on pretrial hearings — November 28, 2001 (detention hear-
ing), and December 4, 2001 (bond reconsideration hearing). The
exclusion of these two days extended the thirty-day period of
§ 3161(b) from December 26, 2001 (thirty days after November 27,
2001) until December 28, 2001 (the day when the Government filed
the information).
Next, we must assess whether the sixty-seven days between
December 28, 2001 (when the information was filed) and March 5,
2002 (when the indictment was returned) are excludable under the
STA. And, as explained below, we conclude that they are. Put simply,
the § 491(b) proceedings constitute "other proceedings" within the
meaning of § 3161(h)(1), and the delay resulting therefrom tolled the
thirty-day clock on the § 472 charges. After the filing of the § 491(b)
information on the last possible day allowable under the STA, the par-
ties engaged in plea negotiations on the § 491(b) charges. While
Leftenant’s co-defendant, Freeman, accepted the Government’s plea
offer, Leftenant refused to plead guilty to the § 491(b) offense. After
the negotiations broke down, the Government sought and obtained an
indictment charging Leftenant with violations of § 472. In these cir-
cumstances, the § 491(b) proceedings constitute "other proceedings,"
within the meaning of § 3161(h)(1). Indeed, the STA defines "other
proceedings" to include any "delay resulting from trial with respect
to other charges against the defendant." 18 U.S.C. § 3161(h)(1)(D). In
this situation, the sixty-seven day period devoted to the § 491(b)
charges — from the filing of the information on December 28, 2001,
until the indictment on March 5, 2002 — must be excluded in calcu-
lating § 3161(b)’s thirty-day time limit.
In nearly identical circumstances, the Ninth Circuit, in United
States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001), cert. denied,
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535 U.S. 976 (2002), held that the filing of a criminal information
tolled the thirty-day period of § 3161(b). In that case, the Government
filed an information charging the defendant with an offense (a viola-
tion of 8 U.S.C. § 1325) different from the offense involved in his
arrest and subsequent indictment (a violation of 8 U.S.C. § 1326). Id.
at 1120. After a break down in plea negotiations on the § 1325
charge, the Government obtained an indictment charging Arellano-
Rivera with a violation of § 1326. Id. The court concluded that the
indictment had been filed within § 3161(b)’s thirty-day time limit
because the plea negotiations on the § 1325 charge were "other pro-
ceedings" within the meaning of § 3161(h)(1). Id. at 1123-24; see also
United States v. Lopez-Osuna, 242 F.3d 1191, 1197-98 (9th Cir.
2000) (holding that plea negotiations constitute "other proceedings");
United States v. Bowers, 834 F.2d 607, 610 (6th Cir. 1987) ("[T]he
plea bargaining process can qualify as one of many ‘other proceed-
ings.’"); United States v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987)
(same).
In sum, Leftenant was arrested on November 26, 2001, for violat-
ing § 472, and the STA’s thirty-day clock began to run the next day.
Arellano-Rivera, 244 F.3d at 1123; see also Stoudenmire, 74 F.3d at
63. Thus, absent excludable periods of delay, the STA required that
Leftenant be indicted by December 26, 2001. The two days spent on
pretrial hearings extended the thirty-day period to December 28,
2001, and the sixty-seven days devoted to the § 491(b) proceedings
further extended the applicable period until March 5, 2002, when
Leftenant was indicted. Thus, the indictment was filed in a timely
manner, and the STA did not mandate its dismissal.
B.
Leftenant next maintains that the district court abused its discretion
in permitting introduction of the Secret Service records. Leftenant
asserts that, because he was not charged with any of the counterfeiting
activity documented in the Secret Service records, they were irrele-
vant to his prosecution and thus inadmissible under Rule 401 of the
Federal Rules of Evidence.4 In the alternative, Leftenant asserts that,
4Rule 401 defines "relevant evidence" as "evidence having any ten-
dency to make the existence of any fact that is of consequence to the
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even if the Secret Service records were relevant, they should never-
theless have been excluded, pursuant to Rule 403, because they were
unduly prejudicial.5 We reject each of these contentions.
1.
As we have often observed, relevance typically presents a low bar-
rier to admissibility. United States v. Van Metre, 150 F.3d 339, 349
(4th Cir. 1998). Indeed, to be admissible, evidence need only be
"worth consideration by the jury," or have a "plus value." United
States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal quotation
marks omitted). In light of this threshold, the district court was within
its discretion in concluding that the Secret Service records were rele-
vant to Leftenant’s prosecution. The records served to establish that
some of the notes confiscated from Leftenant were of sufficient qual-
ity to be considered "counterfeit" currency within the meaning of
§ 472. Cf. United States v. Ross, 844 F.2d 187, 189 (4th Cir. 1988)
(stating that, for conviction under § 472, fake notes must have "simili-
tude" to real currency before they can be considered "counterfeit");
United States v. Smith, 318 F.2d 94, 94-95 (4th Cir. 1963) (same).
In this instance, the Secret Service records documented the passing
of counterfeit bills bearing identical serial numbers to those confis-
cated from Leftenant. Because serial numbers on real currency are
unique to each note, see United States v. Rahm, 993 F.2d 1405, 1409
(9th Cir. 1993), the fact that the serial numbers on Leftenant’s coun-
terfeit notes were identical to those on the bills referred to in the
Secret Service records makes it reasonable to conclude that these
notes were from the same source and were of similar stock and qual-
ity. In such circumstances, the Secret Service records tended to estab-
determination of the action more probable or less probable than it would
be without the evidence." Fed. R. Evid. 401. In general, relevant evi-
dence is admissible, and irrelevant evidence is inadmissible. Fed. R.
Evid. 402.
5Rule 403 provides that relevant evidence "may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence." Fed. R. Evid. 403.
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lish that Leftenant possessed counterfeit bills of such quality that they
could be mistaken for real currency and that the bills were thus "coun-
terfeit" within the meaning of § 472. Accordingly, the district court
was within its discretion in deciding that the Secret Service records
were relevant to Leftenant’s prosecution.
2.
The district court was also within its discretion in its Rule 403
assessment. On this point, Leftenant correctly points out that the
Secret Service records indicate that notes with serial numbers identi-
cal to those confiscated from him were widely circulated prior to his
arrest, but that the circulation of such notes decreased dramatically
thereafter. Because of the incriminating inference the jury could have
drawn from the decrease in counterfeiting activity after Leftenant’s
arrest, Leftenant contends that the Secret Service records impermiss-
ibly left the jury with the impression that he must have been involved
in such counterfeiting activity.
The Government stipulated at trial, however, that Leftenant was
not involved in the specific counterfeiting activity detailed in the
Secret Service records. Moreover, the records might actually have
assisted Leftenant’s defense: a juror could just as easily have con-
cluded that the Government’s failure to implicate Leftenant in any of
the counterfeiting activity documented in the Secret Service records
made it less likely that Leftenant had committed the offenses with
which he was charged. In these circumstances, the trial court did not
abuse its discretion in its Rule 403 assessment, and the Secret Service
records were properly admitted into evidence.
C.
Leftenant also maintains that the evidence was insufficient to sup-
port his convictions. In particular, he asserts that there was no evi-
dence either that he knew the bills found in his possession to be
counterfeit, or that he intended to use these bills to defraud. Both
knowledge and intent are necessary elements of a § 472 conviction.
The Government counters that the evidence was sufficient to support
the verdict and that the court correctly denied Leftenant’s motion for
judgment of acquittal. In denying this motion, the district court rea-
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soned that, viewing the evidence in the light most favorable to the
prosecution, the jury was entitled to find Leftenant guilty as charged.
In order to establish that Leftenant had violated § 472, the Govern-
ment was required to prove three elements: (1) that Leftenant pos-
sessed counterfeit money; (2) that, at the time of such possession, he
knew the money to be counterfeit; and (3) that he possessed the coun-
terfeit money with the intent to defraud. United States v. Acosta, 972
F.2d 86, 89 (5th Cir. 1992). Because the counterfeit bills were in
Leftenant’s possession, there was no dispute as to the first element.
Instead, the issues for the jury were whether Leftenant knew that the
notes were counterfeit, and whether he possessed those notes with the
intent to defraud.
After weighing the evidence presented at trial, a reasonable juror
could readily have concluded that the last two elements were satis-
fied. First, the Government presented the testimony of Officer Han-
son, who advised the jury of Leftenant’s behavior when the first
counterfeit bill fell from his pocket. According to Hanson, when
Leftenant saw the bill fall from his pocket, "he had a shocked look
on his face." Viewed in the proper light, Leftenant’s reaction indi-
cated that he realized that he had been caught with counterfeit cur-
rency and that he had intended to use it to defraud. Second, the
Government discredited Leftenant’s explanation of how he came into
possession of the counterfeit bills. Leftenant claimed to have obtained
the bills, which appeared new and unhandled when they were seized
by police, while gambling in a fast-paced dice game. By Leftenant’s
own admission, however, the money used in the dice game changed
hands quickly and repeatedly, making it unlikely that any bills
obtained from such a game would appear new and unhandled. In
weighing this evidence, the jury could well have concluded that
Leftenant was lying in his explanation of how the bills came into his
possession. In these circumstances, the jury was entitled to find that
Leftenant knew that he possessed counterfeit bills and that he
intended to use them to defraud.
D.
Finally, Leftenant contends that the six separate counts charged in
the indictment were multiplicitous. In particular, he maintains that he
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should not have been charged with multiple counts of § 472 posses-
sion when he was found in possession of counterfeit currency at a sin-
gle time and in a single location. The indictment charged a separate
count for each of the six serial numbers on the eleven counterfeit bills
found in Leftenant’s possession. The Government now concedes that
its charging decision was erroneous and that the six charges in the
indictment are multiplicitous. In short, it acknowledges that Leftenant
should have been charged with a single count of § 472 possession,
and that we should vacate all of Leftenant’s convictions save one.
In similar circumstances, we have held that a defendant cannot be
convicted of multiple counts of possession when multiple items of
contraband are seized on a single occasion. See United States v. Ben-
nafield, 287 F.3d 320, 323-24 (4th Cir.), cert. denied, 123 S. Ct. 388
(2002) (holding that defendant could only be convicted of single act
of possession for simultaneous possession of multiple packages of
cocaine); United States v. Dunford, 148 F.3d 385, 389-90 (4th Cir.
1998) (holding that defendant could only be convicted of single act
of possession where multiple firearms were seized at single time and
location). Similar to the situations presented in Bennafield and Dun-
ford, we have a situation here in which Leftenant was charged and
convicted of multiple offenses when the evidence established only a
single act of possession. Under such circumstances, "the appropriate
remedy is to vacate all of [the convictions] but one." United States v.
Burns, 990 F.2d 1426, 1438 (4th Cir. 1993). Accordingly, we vacate
all of Leftenant’s convictions — and their related sentences and spe-
cial assessments — except one.
IV.
For the foregoing reasons, we affirm one of Leftenant’s convic-
tions, one of the twelve month prison terms, and one of the $100 spe-
cial assessments. We vacate Leftenant’s other five convictions, five
of the six concurrent terms of twelve months imprisonment, and five
of the six $100 special assessments.
AFFIRMED IN PART AND VACATED IN PART
14 UNITED STATES v. LEFTENANT

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