United States of America v. Wesley D. Mitchell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2006
Decided April 13, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-3497
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WESLEY D. MITCHELL,
Defendant-Appellant.
Appeal from the United States
District Court for the Central
District of Illinois
No. 05-30005-001
Jeanne E. Scott,
Judge.
O R D E R
A jury found Wesley Mitchell guilty of two counts of possessing counterfeit
currency and one count of attempting to pass counterfeit currency, all in violation of
18 U.S.C. § 472. The district court sentenced him to three concurrent terms of 24
months’ imprisonment and three concurrent terms of three years’ supervised
release. Mitchell filed a notice of appeal, but his appointed counsel has moved to
withdraw because he is unable to find a nonfrivolous basis for appeal. Anders v.
California, 386 U.S. 738 (1967). Counsel’s supporting brief is facially adequate, and
Mitchell did not respond to our invitation under Circuit Rule 51(b) to explain why
he believes his appeal has merit, so we review only the potential issues identified in
counsel’s brief. United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per
curiam).
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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Mitchell was arrested after attempting to purchase drinks at a bar for
himself and an ex-girlfriend with a counterfeit $20 bill. The bartender’s suspicions
were aroused by the feel of the bill, so she tested it with a counterfeit marking pen
and then called the manager. The manager submitted the bill to his own tests and
called the police. Bouncers prevented Mitchell from leaving before the police
arrived. As he was escorted out of the bar by the police, one of the bouncers saw
him surreptitiously drop a wad of currency that turned out to consist of 18
counterfeit hundred-dollar bills. At the police station, Mitchell was interviewed by
a Secret Service agent to whom he admitted that he had manufactured the money
in the basement of his grandparents’ home using a color printer. He then led police
to his grandparents’ basement, where they discovered a quantity of uncut currency.
At trial the government presented the testimony of the bartender, the bar
manager, the bouncers, the police officers who arrested Mitchell, and the Secret
Service agent who both interviewed Mitchell and searched his grandparents’
basement. After the government rested its case, Mitchell moved under Federal
Rule of Criminal Procedure 29(a) for a judgment of acquittal based on insufficiency
of the evidence. The motion was denied. Mitchell then testified that he never
intended to defraud anyone and that he bought the printer to make false currency
to use as gag gifts at Christmastime. He claimed that he gave the bartender the
wrong money by mistake because he was drunk and tired. After the close of the
evidence, Mitchell renewed his Rule 29 motion, and also moved for dismissal of the
third count on the ground that it was substantively identical to the first count and
thus multiplicitous. The district court denied both motions. The jury found
Mitchell guilty on all three counts. The district court then calculated a guidelines
range of 21 to 27 months and sentenced him within that range to 24 months.
Counsel first considers whether Mitchell might argue that the evidence was
insufficient to sustain his conviction. We agree that an appeal on this ground would
be frivolous. In responding to a challenge to the sufficiency of the evidence, we ask
whether “‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Medina, 430 F.3d 869, 881 (7th
Cir. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This test
presents a “‘nearly insurmountable hurdle.’” United States v. Moore, 425 F.3d 1061,
1072 (7th Cir. 2005) (quoting United States v. Frazier, 213 F.3d 409, 416 (7th Cir.
2000)).
The three elements required for conviction under 18 U.S.C. § 472 are (1)
possession of counterfeit obligations, (2) knowledge that the obligations were
counterfeit, and (3) intent to defraud. United States v. Leftenant, 341 F.3d 338, 347
(4th Cir. 2003); United States v. Bolin, 35 F.3d 306, 309 (7th Cir. 1994). Mitchell’s
admissions at trial served as proof of the first two elements; the only element in
dispute was whether he had the intent to defraud. The government satisfied this
element by introducing evidence that Mitchell produced more money than plausibly

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No. 05-3497 Page 3
necessary for the purported gag gifts, that he brought counterfeit money with him
to the bar, and that he did not appear on the night he was arrested to be
intoxicated, either to the bar employees or to the officers. From these
circumstances, the jury could easily have inferred that Mitchell intended to defraud
the recipient of the counterfeit bills.
Counsel also considers whether Mitchell could argue that his convictions for
possession in counts one and three should be reversed as multiplicitous. A claim of
multiplicity alleges that separate counts in an indictment charge a single offense,
creating a risk that the defendant may be punished more than once for a single
offense in violation of the Double Jeopardy Clause of the Constitution. United
States v. Cassano, 372 F.3d 868, 881 (7th Cir. 2004), vacated on other grounds, 125
S. Ct. 1018 (2005) (citing United States v. Booker, 543 U.S. 220 (2005)). We review
a claim of multiplicity de novo. United States v. Snyder, 189 F.3d 640, 646 (7th Cir.
1999).
Counsel questions whether the district court ought to have deemed Mitchell
to have waived his multiplicity claim by not raising it before trial—compare United
States v. Wilson, 962 F.2d 621, 626 (7th Cir. 1992), and United States v. Jackson,
155 F.3d 942, 947 (8th Cir. 1998), with United States v. Tucker, 345 F.3d 320, 337
(5th Cir. 2003), and United States v. Chacko, 169 F.3d 140, 145-46 (2d Cir.
1999)—but we need not resolve this question because we agree that any contention
that the possession counts should have been charged as one is frivolous. Though we
are aware of no specific precedent on possession of counterfeit currency under 18
U.S.C. § 472, possession cases generally have permitted a defendant to be charged
with multiple violations of the same statute if the items possessed were stored
separately. See, e.g., United States v. Conley, 291 F.3d 464, 470 (7th Cir. 2002)
(addressing possession of firearms under 18 U.S.C. § 922(g)(1)); United States v.
Griffin, 765 F.2d 677, 681, 683 (7th Cir. 1985) (addressing possession of cocaine
under 21 U.S.C. § 841(a)(1)). As counsel points out, Mitchell “stored” separate
amounts of counterfeit currency on his person and in his grandparents’ basement.
Cf. Griffin, 765 F.2d at 682-83 (double jeopardy not violated by charges for
possession of packages of cocaine stored separately in defendant’s pocket and in his
car). Other cases that apply counterfeiting statutes without involving possession
are even less favorable to Mitchell. See, e.g., United States v. LeMon, 622 F.2d
1022, 1024 (10th Cir. 1980) (holding that each counterfeit note constitutes a
separate violation of 18 U.S.C. § 471).
Counsel next considers whether Mitchell might argue that the district court
erred at sentencing when it applied an adjustment to his base offense level under
U.S.S.G. § 2B5.1(b)(2)(A), which provides for an addition of two levels when the
defendant has manufactured the counterfeit obligations at issue. Section 2B5.1's
Application Note 4 prevents application of subsection 2B5.1(b)(2)(A) where the
counterfeit bills were “so obviously counterfeit that they [we]re unlikely to be

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accepted even if subjected to only minimal scrutiny,” and, counsel posits, Mitchell’s
bills might fit into this category. Although the guidelines are now advisory, the
guidelines range still must be properly calculated. United States v. Carter, 410 F.3d
942, 954 (7th Cir. 2005). We review the district court’s findings of fact for clear
error. United States v. Blaylock, 413 F.3d 616, 618 (7th Cir. 2005). It might have
been preferable if we had a sample of the counterfeit bills, see United States v.
Barnes, 188 F.3d 893, 895 (7th Cir. 1999); United States v. Bollman, 141 F.3d 184,
187 (5th Cir. 1998) (per curiam), but the record is adequate for purposes of our
review. The district court was able to examine one of the notes in determining that
they were not so obviously counterfeit as to warrant invocation of Application Note
4. The court’s judgment is supported by the uncontroverted testimony at trial that
the bartender, the bar manager, and the police all tested the bills with a counterfeit
marker, thus indicating that although the bills were suspicious, they were not so
obviously counterfeit as to be rejected outright.
Finally, counsel considers whether Mitchell might argue that his sentence
was unreasonable because his efforts at counterfeiting were “unsophisticated” and
the application of subsection 2B5.1(b)(2)(A) brought him within a guidelines range
designed for professional counterfeiters. After United States v. Booker, 543 U.S. 220
(2005), we review all sentences for reasonableness in the context of the factors listed
in 18 U.S.C. § 3553(a). See United States v. Vaughn, 2006 WL 29208, at *5 (7th Cir.
Jan. 6, 2006); United States v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005). We
agree with counsel that appeal on this ground would be frivolous, since we have
already rejected the argument that subsection 2B5.1(b)(2)(A) should apply only
when the counterfeiter uses “sophisticated methods.” See United States v. Baronia,
287 F.3d 607, 608-09 (7th Cir. 2002). Moreover, we perceive no other vulnerability
in the sentence. Because it is within the recommended guidelines range, it is
presumptively reasonable, see United States v. Bokhari, 430 F.3d 861, 864 (7th Cir.
2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The district
court need not support its determination with detailed findings; it is enough if we
can tell from the record that the relevant factors were considered. United States v.
Welch, 429 F.3d 702, 705 (7th Cir. 2005); United States v. Williams, 425 F.3d 478,
480 (7th Cir. 2005). Here, the district court stated that it considered “all of the
sentencing factors” and concluded that sentencing Mitchell within the range was
warranted in order to avoid sentencing disparities among defendants with similar
records (see 18 U.S.C. § 3553(a)(6)) and to reflect the seriousness of the offense (see
18 U.S.C. § 3553(a)(2)(A)) .
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.

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