* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 06-10724

_____________________

DARREL RUNDUS; GREAT NEWS NETWORK, INC., 

Plaintiffs-Appellants

v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF

HOMELAND SECURITY; MARK L. LOWERY, Individually

and in his official capacity as Special 

Agent-in-Charge for the United States Secret 

Service, Department of Homeland Security, United

States of America; ROY WHATLEY, JR., Individually

and in his official capacity as Special Agent for

the United States Secret Service, Department of 

Homeland Security, United States of America, 

Defendants-Appellees

----------------------

Appeal from the United States District Court

for the Northern District of Texas

(3:06-CV-1032)

----------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

WIENER, Circuit Judge*:

Three United States Secret Service agents confiscated 8,300

religious hand-outs from Plaintiffs-Appellants Great News

Network, Inc. (“GNN”) and Darrel Rundus (collectively, “the

Plaintiffs”). These hand-outs resembled Federal Reserve notes

(dollar bills), but were each in the denomination of $1 million,
2

a denomination never issued by the United States Department of

the Treasury. The Plaintiffs filed a civil rights lawsuit

against Defendants-Appellees Michael Chertoff, Mark L. Lowery,

and Roy Whatley, Jr. (collectively, “the government”), claiming

that their actions violated the Plaintiffs’ constitutional

rights.

On the same day that they filed their complaint, the

Plaintiffs sought a preliminary injunction from the district

court that would permit the continued use of the hand-outs. The

district court denied the Plaintiffs’ preliminary injunction,

concluding that they had failed to establish a substantial

likelihood of success on the merits. The Plaintiffs now appeal

that denial to us. Satisfied that the district court did not

abuse its discretion, we affirm.

I. FACTS AND PROCEEDINGS

GNN is an evangelical training ministry with approximately

1,000 members in ten countries. Its headquarters are in Denton,

Texas, and Rundus is its president.

As part of its ministry, GNN distributes the subject handouts, which are designed to look like Federal Reserve notes with

a face value of $1 million. The Plaintiffs admit to having

distributed over one million of the hand-outs in the three years

preceding this lawsuit.
1 Such hand-outs are still being offered for sale by Living

Waters.

2 The Series 2004 currency designs are the same size as and

have the same portraits, vignettes, and images as previous currency

designs, but also have additional security and design features that

their predecessors lacked, such as (1) color-shifting ink, (2)

watermarks, (3) security threads, (4) symbols of freedom, (5)

additional subtle coloration, (5) updated portraits and vignettes,

(6) microprint text, (7) low vision features, (8) Federal Reserve

indicators, and (9) different serial numbering. The $20

denomination was first issued on October 9, 2003; the $50

denomination was issued on September 28, 2004; the $10 denomination

was issued on March 2, 2006.

3

The Plaintiffs do not produce or create these hand-outs.

Rather, the Plaintiffs obtain them from Living Waters

Publications, Inc. (“Living Waters”), which operates out of

Bellflower, California.

1 In his affidavit of June 15, 2006, the

president of Living Waters averred that, in the previous four

years, Living Waters had distributed over 5.3 million of the

hand-outs world-wide, 95 percent of which were distributed in the

United States.

The hand-outs are in the general style of the Treasury

Department’s Series 2004 notes. Each bears a portrait of former

President Grover Cleveland on its face and a vignette of the

United States Supreme Court building on its reverse side.2 In

addition, the hand-outs are of the same dimensions as the Series

2004 note designs, and have nearly identical color schemes and

layouts. 
4

There are, however, myriad intentional differences that

distinguish the hand-outs from actual legal tender. First, the

paper on which the hand-outs are printed is palpably different

from that used for Federal Reserve notes: The paper on which the

hand-outs are printed is substantially thicker and more rigid

than that of real currency, the hand-out’s stock having a

consistency similar to that of smooth construction paper. 

Second, there are numerous verbal indicators on the handouts that distinguish them from real currency. These include (1)

on the left side of each hand-out’s face, the faux Federal

Reserve indicator reads “Reserved Federal System,” contrast to

that of the official indicator, “Federal Reserve System;” (2) the

lower left corner of each face contains the statement “This note

is not legal tender for all debts, public and private;” (3) also

in the lower left corner, each is purportedly signed by a

representative of the “Department of Eternal Affairs;” (4) on the

lower right side of the face of each is a notation of the website

“www.WayOfTheMasterRadio.com;” (5) on the top border of the face

of each is written “Reserved Note,” instead of “Federal Reserve

Note;” (6) the ostensible seal of the United States Department of

Treasury on the right side of the face of each states “Thou Shall

Not Steal —— Isaiah Fifty Five One;” and (7) the border of the

reverse side of each reads:
5

The million-dollar question: Will you go to Heaven?

Here’s a quick test. Have you ever told a lie, stolen

anything, or used God’s name in vain? Jesus said,

“Whoever looks at a woman to lust for her has already

committed adultery with her in his heart.” Have you

looked with lust? Will you be guilty on Judgment Day?

If you have done those things, God sees you as a lying,

thieving, blasphemous, adulterer-at-heart. The Bible

warns that if you are guilty you will end up in Hell.

That’s not God’s will. He sent His Son to suffer and

die on the cross for you. Jesus took your punishment

upon Himself. “God so loved the world that he gave his

only begotten Son, that whoever believes in Him should

not perish but have everlasting life.” Then He rose

from the dead and defeated death. Please, repent (turn

from sin) today and trust in Jesus, and God will grant

you everlasting life. Then read your Bible daily and

obey it. www.livingwaters.com

Early in June 2006, after an individual in North Carolina

attempted to deposit one of the hand-outs into his personal bank

account, three United States Secret Service agents traced that

hand-out back to the Plaintiffs, went to GNN’s headquarters, and

seized eighty-three packs of hand-outs, each of which contained

100 individual hand-outs. In addition, the agents informed the

Plaintiffs that the government intended to issue a cease-anddesist order requiring them to discontinue their use of the handouts. 

Ten days after the seizure, the Plaintiffs filed a civil

lawsuit in the district court, alleging that the seizure and

threatened cease-and-desist order violated their First and Fourth

Amendment rights and seeking a declaratory judgment that
6

distribution of the hand-outs was protected First Amendment

expressive activity. In addition, the Plaintiffs sought a

permanent injunction (1) prohibiting the government from seizing

additional hand-outs and (2) requiring the government to return

those that it had seized. As an alternative measure of relief,

the Plaintiffs sought monetary damages in the event that the

government had already destroyed the hand-outs or otherwise made

their return impossible.

On the same day that they filed their complaint, the

Plaintiffs filed a motion for a preliminary injunction to

restrain the government from issuing a cease-and-desist order

that would prohibit the Plaintiffs from thereafter acquiring,

distributing, or using such hand-outs. The Plaintiffs argued

that the government lacked statutory authority either to seize

the hand-outs or to prohibit their future use.

The district court denied the Plaintiffs’ motion,

determining that they had failed to establish a substantial

likelihood of success on the merits. The Plaintiffs timely filed

a notice of appeal.

II. LAW AND ANALYSIS

A. Standard of Review

Our jurisdiction to review a district court’s order denying

injunctive relief is premised on 28 U.S.C. § 1292(a)(1). We
3 Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d

192, 195 (5th Cir. 2003).

4 Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006).

7

ultimately review denials of preliminary injunctions for abuse of

discretion, but we review de novo decisions based on erroneous

principles of law.3

To prevail on a motion for preliminary injunction, a

plaintiff must show (1) a substantial likelihood of success on

the merits, (2) a substantial threat that he will suffer

irreparable injury if the preliminary injunction is denied, (3)

his threatened injury if the injunction is denied outweighs any

harm that will result if the injunction is granted, and (4)

granting the preliminary injunction will not disserve the public

interest.4

B. Merits

Overarching this case is its context: This is not a criminal

counterfeit case, but a civil case involving the exercise of

administrative discretion. On appeal, the Plaintiffs contend

that the government’s asserted statutory authority for its

seizure and cease-and-desist order —— 18 U.S.C. §§ 474, 475 ——

does not apply to fake Federal Reserve notes of fictitious or

non-existent denominations, such as $1 million, and thus the

government’s actions were improper. As an alternative, the
5 Section 475 also criminalizes designing, engraving,

printing, execution, uttering, issuing, and circulation. 

6 These other similar documents include notices, placards,

circulars, and handbills.

8

Plaintiffs assert that, to the extent that §§ 474 and 475 do

apply to non-existent denominations, the government still

exceeded its authority, because the hand-outs are not a

sufficient “similitude” or “likeness” of a Federal Reserve note

to fall within the ambit of §§ 474 and 475.

1. Fictitious Obligations

Here, the relevant portions of § 474 —— paragraphs six and

seven —— make it a felony (1) to possess with the intent to sell

“any obligation or other security made or executed, in whole or

in part, after the similitude of any obligation or other security

issued under the authority of the United States,” or (2) to

“print[], photograph[], or in any other manner make[] or

execute[] any engraving, photograph, print, or impression in the

likeness of any such obligation or other security.” Section 475

prohibits the making, distribution, or use5 of any business or

professional card, advertisement, or other similar documents6 “in

the likeness or similitude of any obligation or security of the

United States.”

In support of their position, the Plaintiffs advance two

separate but related arguments. They first contend that, as 18
7 Emphasis added.

9

U.S.C. § 8 defines “obligation or other security” as “Federal

Reserve notes . . . of whatever denomination, issued under any

Act of Congress,” the hand-outs are not covered by §§ 474 or 475,

because Congress has never authorized the printing, circulation,

or issuance of a $1 million Federal Reserve note.7 We disagree.

Sections 474 and 475 require that the hand-outs be in the

likeness or similitude of any Federal Reserve note issued by Act

of Congress. There is nothing in the statutory language,

legislative history, or caselaw addressing these statutes that

supports the conclusion that the use of a fictitious denomination

alone is sufficient to render an instrument a per se non-likeness

or non-similitude. Rather, we are convinced that this is at

most one factor to be considered in making the requisite

determination.

Second, the Plaintiffs assert that the plain language and

legislative history of 18 U.S.C. § 514 demonstrate that neither

§§ 474 nor 475 cover Federal Reserve notes of fictitious

denomination. Section 514 prohibits the printing, passing,

possessing, or movement in interstate commerce of “any false or

fictitious instrument, document, or other item appearing,

representing, purporting, or contriving through scheme or
8 141 Cong. Rec. S9533-34, quoted in United States v. Howick,

263 F.3d 1056, 1066-67 (9th Cir. 2001). 

10

artifice, to be an actual security or other financial instrument

issued under the authority of the United States,” with the intent

to defraud. 

The Plaintiffs contend that, as § 514 covers “false or

fictitious” representations of Federal Reserve notes, §§ 474 and

475 cannot also cover fictitious denominations without creating

an overlap in criminal liability. The Plaintiffs would draw a

distinction between “counterfeit” instruments, which are

punishable under §§ 474 and 475, and “fictitious” instruments,

which are punishable only under § 514. 

In aid of their proposed interpretation, the Plaintiffs

proffer then-Senator Alfonse M. D’Amato’s introductory remarks to

the Financial Instruments Anti-Fraud Act of 1995, which

eventually led to the enactment of § 514.8 Senator D’Amato

expressed his belief that a loophole existed under federal

criminal counterfeiting law that prevented counterfeiting

prosecutions involving fictitious instruments that were not

counterfeits of any existing negotiable instrument. Section 514,

according to Senator D’Amato, would close this loophole.

Having considered this argument, we do not find the

Plaintiffs’ contention persuasive. The fact that two criminal
9 Pasquantino v. United States, 544 U.S. 349, 358 n.4 (2005)

(“The Federal Criminal Code is replete with provisions that

criminalize overlapping conduct. The mere fact that two federal

criminal statutes criminalize similar conduct says little about the

scope of either.” (citations omitted)).

10 Webb v. United States, 216 F.2d 151, 152-53 (6th Cir. 1954).

11

statutes may penalize similar conduct does not require a

mandatory application of one to the exclusion of the other.9

Moreover, there is nothing in Senator D’Amato’s remarks that

leads us to believe that Congress intended § 514 to preempt §§

474’s and 475’s application to false Federal Reserve notes of

fictitious denomination.

2. Similitude or Likeness Test

As their second argument on appeal, the Plaintiffs assert

that the hand-outs do not so closely resemble actual Federal

Reserve notes that they may be deemed to be a “similitude” or

“likeness” within the intendment of these statutes. This is a

question of fact reserved to the fact-finder.10 Given the

similarities (and despite the differences) between the hand-outs

and actual Federal Reserve notes, we cannot say that the district

court either clearly erred in finding similitude or abused its

discretion in ruling that the Plaintiffs failed to satisfy their

burden of establishing a substantial likelihood of success on the

merits.

III. CONCLUSION
12

In closing, we re-emphasize the vast difference between the

government’s acts complained of here in merely confiscating the

hand-outs because of their similarities to legal tender, on the

one hand, and a criminal prosecution for counterfeiting (which

this is not), on the other hand. Within this non-criminal

framework and based on the applicable law and our extensive

review of the parties’ briefs and the record on appeal, we hold

that the district court did not abuse its discretion in denying

the injunction sought by the Plaintiffs, ruling that the

Plaintiffs failed to establish a substantial likelihood of

success on the merits and thus failed to prove their entitlement

to a preliminary injunction.

AFFIRMED.