1 District Judge of the Western District of Louisiana,

sitting by designation.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

NO. 91-5690

______________________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

versus

RUDOLPH ACOSTA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

( August 27, 1992)

Before JONES and WIENER, Circuit Judges, and LITTLE, District

Judge. 1

LITTLE, District Judge:

Appellant, Rudolph Acosta, was found guilty of five counts of

passing counterfeit currency and one count of attempting to pass a

counterfeit bill. On appeal, Acosta asserts that the evidence was

insufficient to support his conviction on Counts 1, 2, 4 and 6. He

also takes issue with the district court's increase of his offense

level, positing that there was no evidence to support the court's

conclusion that Acosta was responsible for more than nine

negotiations of counterfeit currency. Finding no reversible error,2

we affirm the convictions. As to the sentencing, we vacate and

remand for the following reasons.

I.

There is no ser ious dispute as to the facts. In early

December of 1990, Rudolph Acosta attempted to purchase merchandise

of an insignificant value from a San Antonio, Texas convenience

store. The $20.00 bill tendered by Acosta appeared fishy to the

clerk. She refused to accept it. Acosta replaced the questionable

$20.00 with another seemingly valid bill, completed the sale, and

departed the premises. The clerk remembers Acosta telling her that

he probably got the bogus bill from the Desperado, a local

nightclub.

Suspecting that Ac osta intended to pass the counterfeit

currency, the store personnel notified local police. The

aut horities went to the neighborhood and found Acosta in a

laundromat. When questioned, Acosta surrendered the invalid bill,

and again opined that he had probably acquired the money from a

local nightclub.

Government agents analyzed the bill and concluded that it was

in fact counterfeit. After noting all of the irregularities of the

bill, the government assigned it circular number, "14923." Thus,

with this identification numb er, bills with the same

characteristics passed in other locales could be traced to this

same illegal batch.

Evidence was presented that Acosta was in a video rental store

on 23 November 1990 and rented a film for cash . The daily cash2 Acosta may not agree with the jury finding as to the

cigarette purchase transaction, but he does not appeal that

adverse result.

3 receipts included a No. 14923 counterfeit bill. There was no

direct evidence linking Acosta to the counterfeit currency. On 25

November 1990, Acosta returned to the video rental store and rented

a video for cash. Again, the deposit included a counterfeit $20.00

bill, No. 14923. As in the prior transaction, there was no

evidence presented to connect Acosta directly to the counterfeit

currency.

In December o f 1990, and January of 1991, the cafeteria

operating in the hospital where Acosta was employed deposited two

counterfeit twenties, both of which were No. 14923 bills. A

cafeteria employee testified that Acosta frequently purchased items

of small value and paid for them with $10.00 or $20.00 bills. On

New Year's Day, 1991, someone passed a "14923" $20.00 bill for

merchandise at a Diamond Shamrock store in San Antonio. The store

manager testified that Acosta had been in the store on the day the

counterfeit $20.00 was passed and had purchased one package of

cigarettes with a $20.00 bill. 2 Thus, there is evidence placing

Acosta at the store and paying for an item with a $20.00 bill. The

other transactions (the two video renta ls and the two cafeteria

purchases) are quite another story, however. There is no evidence

that Acosta paid for either video with a $20.00 bill, nor is there

evidence that Acosta was in the cafeteria at any material time and

paid for his purchases with a $20.00 bill. In short, according to

Acosta, the evidenc e is insufficient to support convictions on4

Counts 1, 2, 4 and 6.

Our standard of review for conviction s based upon evidence

allegedly insufficient to support the verdict is well known. We

view the evidence, and all reason able inferences to be drawn

therefrom, in the light most favorable to the verdict. U nited

States v. Triplett

, 922 F.2d 1174, 1177 (5th Cir. 1991) cert.

denied, 1991 U.S. App. LEXIS 2995, 111 S.Ct. 2245, 114 L.Ed.2d 486

(1991). We must determine if a rational jury could have found

Acosta guilty beyond a reasonable doubt. Not every reasonable

theory of innocence need be excluded. All credibility choices are

made in favor of the government. U nited States v. Montemayor

, 703

F.2d 109, 115 (5th Cir. 1983) cert. denied, 464 U.S. 822, 104 S.Ct.

189, 78 L.Ed.2d 97 (1983); United States v. Green

, No. 91-3573,

5420, 5424 (5th Cir. 1992); United States v. Breque , No. 91-5625,

5440, 5445 (5th Cir. 1992).

Acosta's complaint that no direct evidence links him to the

counterfeit twenties, even if true, does not carry the day for

reversal. Direct evidence of the defendant's guilt is not

required. It is sufficient if the guilt is proved beyond a

reasonable doubt by circumstantial evidence alone. United States

v. Ivey , 949 F.2d 759, 766-767 (5th Cir. 1991).

To establish a violation of 18 U.S.C. § 472, the government

must prove that the defendant knew the bills were counterfeit and

that the defendant intended to defraud when he negotiated the

bills. U .S.A. v. Lemaire

, 712 F.2d 944, 947 (5th Cir. 1983), cert.

denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983).5

As we have remarked, Acosta did purchase a pack of cigarettes

with a $20.00 bill. A counterfeit No. 14923 $20.00 bill was

included in the vendor's bank deposit for that day. It is admitted

that Acosta possessed a "14923" bill when he conducted a

convenience store transaction in December of 1990. Acosta ate at

the hospital cafeteria and frequently paid for food items with

$20.00 bills. On two occasions counterfeit bills were among the

cafeteria's deposits. Acosta on two occasions paid cash for film

rentals. On those two occasions, No. 14923 bills were deposited by

the film store. Acosta's known and admitted possession of one bad

bill, coupled with his purchase of a package of cigarettes with a

$20.00 bill, tethered to his presence at the store while making a

cash purchase where "14923" bills were di scovered, and linked to

his habit of paying for cafeteria food with $20.00 bills produce

circumstances sufficient to support Acosta's conv iction on all

counts.

An additional piece of evidence, when considered by the jury,

fortifies the v erdict. Over Acosta's objection, the jury was

informed that Acosta's brother ha d been charged with passing

"14923" bills in the state of Michigan. On appeal, Acosta argues

that possession by his brother of identical counterfeit currency is

irrelevant in Acosta's T exas based criminal trial. Evidence of

frequent interstate telephonic communications between the brothers

was also introduced. The introduction of the evidence was not

irrelevant. Acosta's brother's possession of identical counterfeit

currency and Acosta's frequent communication with his brother may6

well convince a trier of fact that the defendant's brother was his

source of supply. We note that one of the characteristics of the

"14923" money is that on many bills the serial numbers are

identical. Thus, the Michigan Acosta possessed some bills with

serial numbers identical to a bill possessed by the Texas Acosta.

Another reason for admitting evidence of the filial affinity is

Acosta's denial t hat he communicated regularly with his northern

brother. The phone tolls cause one to conclude otherwise.

But a finding of relevancy will not end o ur analysis. All

evidence is not relevant and all relevant evidence is not per se

admissible. Rule 403 of the Federal Rules of Evidence requires

that even relevant evidence be weighed before admission.

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of t ime, or needless presentation of cumulative

evidence.

Fed. R. Evid. 403.

We ask the question, "Did unfairness result when evidence of

the brother's criminal conduct was admitted ?" We think not.

Counsel for defendant Acosta, on cross-examination of the

government's witness, established that no proof was presented

connecting defendant Acosta to any crimes committed by his brother.

Moreover, the jury was instructed not to convict Acosta based on

the guilt of any person not on trial. We do not find that the

trial court abused its discretion in admitting evidence of the

defendant's brother's possession of counterfeit currency or

evidence of interstate phone call s. United States v. Gonzalez-7

Lira , 936 F.2d 184, 191 (5th Cir. 1991).

II.

The remaining issue to which we must turn our attention is the

21 month prison sentence imposed by the trial court. In its

application of the sentencing guidelines, the district court made

an upward adjustment of the offense level because Acosta allegedly

passed more than $2,000.00 in counterfeit currency. The case in

chief only involved $120.00. The additional $1,880.00 stems from

the testimony at the sent encing hearing of government agent Edna

Perry. Perry testified that 107 counterfeit "14923" $20.00 bills

were passed in the San Antonio area and attributed those

transgressions to Acosta. If the Secret Service's evidence of

Acosta's trafficking in forged $20.00 bills is accepted, the face

value of the counterfeit transactions would exceed $2,000.00. The

offense level would be increased by one step, according to the

guidelines. This increase causes a concomitant increase in the

imprisonment range. Without this addition, the range is 12-18

months. With the enhancement, the imprisonment range is 15-21

months.

Our mission in a dispute concerning an appropriate sentence is

well established.

Review of sentences imposed under the guidelines is

limited to a determination whether the sentence was imposed in violation of law, as a result of an incorrect

application of the sentencing guidelines, or was outside

of the applicable guideline range and was unreasonable.

18 U.S.C. § 3742(e). We accept findings of fact that are

not clearly erroneous. U nited States v. Goodman

, 914

F.2d 696, 697-988 (5th Cir. 1990).

U.S. v. Matovsky , 935 F.2d 719, 721 (5th Cir. 1991).8

Appellant's position is that the trial court was clearly

erroneous when it accepted, as a fact, the assertion that appellant

was responsible for an additional 107 utterances of "14923" $20.00

bills. The evidence of Acosta's association with the 107

transactions springs from the testimony, as we have said, of Secret

Service Agent Edna Perry.

Agent Perry testified at the sentencing hearing that she had

attended the trial of Art Acosta, appellant's brother, the week of

20 May 1991 in Detroit, Michigan. On direct examination, Perry

r ecounted the testimony of the printer of the counterfeit bil ls,

who stated that he had sent Art Acosta $60,000.00 in "14923"

counterfeit bills. She further testified that 107 bills with the

same d efects were recovered in the South Texas area. On cross,

however, Agent Perry stated that she had no knowledge of any

evidence introduced at either the Michigan trial or the appellant's

trial that a package was sent by the Michigan Acosta and received

by the Texas Acosta.

The presentence report, adopted by the trial court and based

on Perry's testimony, indicated that there had been 107 passes of

counterfeit currency in the South Texas area. At the sentencing

hearing, Agent Perry was not sure how many of the passes in the San

Antonio area had actually been investigated b y authorities. She

could only estimate that there had been more than nine

investigations completed. More importantly, Agent Perry testified

that of the many establishments where "14923" bills were recovered,

in only nine cases did employees identify appellant as having ever9

bee n in the establishment. The appellant was later charged by

superseding indictment with seven counts of passing counterfeit

currency, one of which was dismissed with prejudice. The jury

convicted the defendant on all six of the remaining counts in the

indictment. No link was ever established between the appellant and

the other 98 passes of counterfeit bills in the South Texas area.

The offense lev el calculations that include the nine bills

found at the establishments whe re the appellant was positively

identified as a customer can be supported by the record.

Attributing the remaining 98 passes of similar counterfeit bills to

the defendant, without corroborating identification, or in most

cases, even an investigation, cannot be supported by the trial

record, the presentence report or the evidence taken at the

sentencing hearing and, in this court's opini on, is clearly

erroneous. In reviewing a challenge to a sentence under the

Guidelines, we must accept the factual findings of the district

court unless clearly erroneous, but "[a] finding of fact will not

satisfy this deferential standar d, 'when, although there is

evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm co nviction that a mistake has

been made .'" U .S. v. Mitchell

, No. 91-1864 (5th Cir. 1992). We

have held "that the party seeking an adjustment in the sentence

level must establish the factual predica te justifying the

adjustment. We have also held that the appropriate analysis for

the district court is whether the party seeking to adjust sentence

level has proved by a preponderance of the relevant and10

sufficiently reliable evidence the facts necessary to support the

adjustment." U

. S. v. Alfaro

, 919 F.2nd 962, 965 (5th Cir. 1990).

Here, it is quite clear that the Perry testimony lacks the

necessary indicia of reliability to support an increase in the base

level offense.

Acosta's convictions are AFFIRMED and his sentence is vacated

and the matter RE MANDED for resentencing in accordance with this

opinion.