* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion

s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-50975

_______________

UNITED STATES of AMERICA,

Plaintiff-Appellee,

VERSUS

NATHANIEL JONES, III,

and

ALBERT CHEVALIER,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Western District of Texas

(W-97-CR-28-1)

_________________________

February 2, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Nathaniel Jones, III, and Al bert Chevalier appeal their

sentences for violations of federal counterfeiting laws pursuant to

18 U.S.C. §§ 371 and 472. Jones also appeals his conviction,

claiming insufficient evidence to convict him of one count of

conspiracy to violate counterfeiting laws. Finding no reversible

error, we affirm.

I.2 Brookins was not indicted with appellants because he pleaded guilty to

counterfeit charges resulting from his Georgia arrest.

2 This is not Jones's first experience with counterfeiting. On

July 28, 1996, he was arreste d after passing several counterfeit

b ills at a Houston night club. The next day, the police stopped

his unindicted co-conspirator, Gr e g Brookins, 2 for a traffic

violation and found him in possession of counterfeit bills, a paper

cutter, 100% cotton bond paper, razor blades, and a ruler. The

counterfeit bills found on Brookins and Jones had a related origin.

During that same month, defendants passed counterfeit bills to

one of their neighbors, Wallace Graham. While in Graham’s

presence, they discussed their plan to make counterfeit bills using

a personal computer, but they lamented that they did not have

enough money to purchase a computer. After this conversation,

Graham contacted the Secret Service, whic h began surveillance of

Chevalier and arrested him after their surveillance revealed that

he possessed $1,000 in counterfeit bills. Chevalier admitted that

he and Brookins had made roughly $15,000 in counterfeit money.

Several months later, Jones (with Chevalier in the passenger

seat) attempted to pass a fak e $20 bill at a Texas Burger drivet hrough window. The employee recognized that the bill was

counterfeit and informed the police. Realizing that something was

wrong, Jones began tapping on the restaurant window while yelling

at the employee to return the bill. After waiting a few moments,

Jones drove off without securing the bill or receiving his food

order . As defendants were exiting the restaurant, the police3

pulled them over and began questioning them and noticed a Texas

Burger bag, containing a sandwich, on the front seat. Apparently,

defendants had obtained the bag containing the sandwich when,

earlier that same day, they had successfully passed a counterfeit

$20 bill at a different Texas Burger. The serial numbers on the

counterfeit bills at both Texas Burger restaurants were identical.

After checking the car’s registration, the police learned that

Brookins was responsible for paying the auto insurance. While

defendants were being detained, Brookins arrived in a separate car

and told the police that defendants were driving the car for him.

Although defendants were arrested , the same car surfaced again a

few days later when Brookins was stopped and arrested in Georgia

for possessing $8,000 in counterfeit money.

II.

Jones argues that the evidence, while sufficient to show that

he violated the law, was insufficient to sustain the verdict tying

him to the counterfeit conspiracy. According to Jones, the

evidence was insufficient because (1) the serial number on the

bill he attempted to pass at the Texas Burger did not match any

serial numbers on currency seized in July 1996 from Chevalier and

Brookins in Houston; (2) there was no evidence that he knew the

bill he passed was counterfeit; and (3) Graham’s testimony seldom

mentions Jones, because Graham was primarily associat ed with

Chevalier.

We review sufficiency of the evidence arguments in the light4

most favorable to the verdict and will affirm if any rational trier

of fact could have found the essential elements of the offense

beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307

(1979). To establish a conviction for conspiracy to violate

counterfeit laws, the government had to prove that (1) Jones agreed

with another person to pursue the unlawful objective; (2) he

voluntarily agreed to join the conspiracy; and (3) one of the

members of the conspiracy performed an overt act in furtherance of

the conspiracy. See United States v. Cihak , 137 F.3d 252, 259-60

(5th Cir.), cert. denied

, 119 S. Ct. 118, and cert. denied

,

119 S. Ct. 203, and cert. denied

, 119 S. Ct. 203 (1998). Although

the elements can be inferred fro m circumstantial evidence, mere

presence at the crime scene or association with participants is not

enough to establish guilt. S ee United Stat es v. Velgar-Vivero

,

8 F.3d 236, 241 (5th Cir. 1993).

There is sufficient evidence to support Jones ’s conspiracy

conviction. From Graham’s testimony, the jury could reasonably

in fer an agreement regarding defendants' passing of counterfeit

money and their plans to use a personal computer to make

counterfeit m oney. Jones’s actions at the drive-through window

also show evidence of an agre ement and an overt act. Although

Jones argues he did not know the bill was fake, when he noticed the

Texas Burger employee stalling he began yelling for the employee to

return the bill in exchange for three $1 bills. He fled the scene

without securing his money or his order. When the police stopped

him moments later, they found a Texas Burger bag with a sandwich in5

it SS presumably the product of his successful passing of another $20

bill (with the same serial nu mber) earlier that same day. There

was also evidence of an agreement among Jones, Chevalier, and

Brookins because, according to the te stimony of a Secret Service

agent, al l three were found in possession of bills with the same

serial number, and Graham testified that the three frequently

traveled together. From all this, the jury reasonably could infer

that Jones was an active participant in the conspiracy with

Chevalier and Brookins.

III.

Jones argues that the district court erred in denying his

motion in limine seeking the exclusion of evidence about Brookins’s

arrest in Geo rgia. Evidentiary rulings are reviewed for abuse of

discretion. S ee United States v. Franklin

, 148 F.3d 451, 458 (5th

Cir. 1998). Even if error existed, the ruling will not be reversed

if it was harmless. S ee United States v. Lowrey

, 135 F.3d 957, 959

(5th Cir. 1998). “A nonconstitutional trial error is harmless

unless it had substantial and injurious effect or influence in

determining the jury’s verdict.” I d. (quoting Kotteakos v. United

States , 328 U.S. 750, 776 (1946)).

Jones argues that he was not associated with Brookins and that

Brookins’s arrest in Georgia was not relate d to his case. The

evidence, however, demonstrates tha t the district court did not

abuse its discretion. Jones, Chevalier, and Brookins were found

with counterfeit money bearing the same serial number. When Jones6

was pulled over after the Texas Burger incident, the police

discovered that Brookins was responsible for paying insurance on

the car; Brookins appeared on the scene and told police that Jones

was driving his car. Brookins’s arrest in Georgia, where police

uncovered the $8,000 in counterfeit currency, occurred just days

later while he was driving the same car Jones was driving at the

Texas Burger.

Jones next argues that any associatio n between him and

Brookins ceased upon Jones’s arrest and incarceration. A defendant

is presumed to continue i nvolvement in a conspiracy and is

responsible for continued acts of co-conspirators, even after his

arrest, unless he has affirmatively withdrawn from the conspiracy.

See United States v. Puig-Infante

, 19 F.3d 929, 945 (5th Cir.

1994). “Because a defendant’s incarceration is not an affirmative

act on the part of a defendant, it cannot, by its elf, constitute

withdrawal or abandonment.” Id.

Jones did nothing affirmatively to withdraw from the

conspiracy. To the contrary, he furthered the conspiracy while in

prison by writing letters to Chevalier persuading him to take the

blame for the ir counterfeiting. Therefore, we hold that the

district court did not abuse its discretion in denying Jones’s

motion in limine

.

IV.

Jones contends th at the district court erred in applying a

two-level adjustment for obstruction of justic e. We review the7

district court’s interpretation of the sentencing guidelines

de novo and its findings of fact for clear error. See United

States v. Greer

, 158 F.3d 228, 233 (5th Cir. 1998). Section 3C1.1

of the sentencing guidelines provides for a two-level increase

“[i]f the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense.”

Comment 3(b) lists several examples of covered conduct, including

“committing, suborning, or attempting to suborn perjury.”

In Chevalier’s initial statement, he told the police that he

was not involved in the counterfeit ring. While the defendants

were incarcerated, however, Jones sent several notes to Chevalier

asking him to take responsibility and to deny Jones’s involvement.

In one note, Jones wrote,

Ted [Chevalier], you have got to tell them that I didn’t

know because they c ould give me three time loser which

starts at number 25. Please Ted don’t let me get three

s trikes like this . . . . I need you to write a sworn

statement saying I didn’t have any knowledge that I was

only driving . . . .

Later, he wrote a second note stating,

I asked you to please tell them I had no know ledge of

that shit that I was just driving, if not, they’re going

to try me as a three time loser

. . . . On the other

hand, if you tell them I di dn’t know you will have to

take the case which would get you two to three if found

guilty of knowing it was fa ke. . . . If you sign a

statement saying I didn’t know they’ll have to let me go.

Finally, Jones sent a third note to Chevalier with a written

stateme nt on it that Chevalier was supposed to copy in his own

handwriting as an affidavit vindicating Jones. After Chevalier had

received these notes, he changed his story and took responsibility3 See United States v. Bermea, 30 F.3d 1539, 1575 (5th Cir. 1994) (“[A] PSR

generally bears sufficient indicia of reliability to be considered by the trial

court as evidence in making the factual determinations required by the sentencing

guidelines.”).

8 for the offense.

Jones argues that he was not willfully attempting to obstruct

justice or suborn perjury but was merely trying to persuade

Chevalier to tell the truth. The evidence, however, supports the

finding that Jones attempted to suborn perjury. Chevalier did not

change his statement until after receiving th e notes from Jones.

The Secret Service agent investigating the crime testified that, in

his opinion, the purpose of Jones’s letters was unla wfully to

influence Chevalier’s testimony. Additionally, the presentence

report (“PSR”) recommended a two- level adjustment because of

Jones’s conduct. 3 Therefore, the district court did not clearly

err in rejecting Jones’s argumen ts and finding that his letters

were an attempt to suborn perjury.

V.

Defendants contend that the district court erred in applying

U.S.S.G. § 2B5.1(b)(2), resulting in an increase in their base

offense level to 15. Under § 2B5.1(b)(2), the base level increases

t o 15 if the defendant “manufactured or produced any counterfeit

obligation or . . . possessed or had custody of or control over a

counterfeiting device or materials used for counterfeiting

. . . .”

A.9

Jones argues that the court erred because there was no

evidence that he manufactured the counterfeit money, possessed any

counterfeiting materials, or conspired to manufacture counterfeit

currency. Brookins possessed counterfeit materials, and Chevalier

admitted to making some of the counterfeit notes. Jones states,

however, that there is no direct proof that he was in possession of

materials to produce counterfeit currency or that he made

counterfeit money. Thus, we must consider whether Jones’s sentence

can be increased because of his co-conspirators’s conduct.

If a district court “fail[s] to expressly find t hat the

defendant agreed to j ointly undertake” a criminal activity, we

should reverse any result ing enhancement as clear error. S ee

United States v. Dean

, 59 F.3d 1479, 1495 (5th Cir. 1995). As the

Dean court went on to point out, a “court’s finding of

foreseeability is irrelevant without concurrent findings that

[defendants] each agreed to a jointly undertaken criminal

activity.” I d. T herefore, if we agree with Jones that the

district court failed to find him part of the “jointly undertaken

activity” of manufacturing counterfeit currency, we cannot

attribute to him the reasonably foreseeable conduct of his coconspirators.

In Dean

, the district court failed to make any finding that

t he defendants each agreed to a jointly undertaken criminal

activity to carry additional amounts of crack cocaine. Following

United States v. Smith

, 13 F.3d 860 (5th Cir. 1994), the Dean court

vacate d the sentence enhancements and remanded for specific10

findings on the “jointly undertaken activity.”

Jones objected to his enhancement for manufacturing at the

sentencing hearing, but the district court overruled this objection

at trial and adopted the recommendations of the PSR without making

its own specific findings. “[A] district court can adopt facts

contained in a PSR without inquiry, if those facts ha[ve] an

adequate evidentiary basis and the defendant does not present

rebuttal evidence.” U nited States v. Lowder

, 148 F.3d 548, 552

(5th Cir. 1998). Therefore, the key inquiry is whether there is

adequate evidence to support the finding that Jones agreed to

participate in “the jointly undertaken activity” of manufacturing

currency (rather than just distributing it).

The government has pointed to only one pi ece of evidence

linking Jones to the manufacturing of the counterfeit currency: the

conversation among Jones, Chevalier, and the government’s witness

Graham. Graham admitted that Jones and Chevalier never said they

had already manufactured such currency. Instead, the conversation

remained in hypothetical terms o f how one might manufacture

counterfeit currency. Additionally, Chevalier told officers that

he and Brookins manufactured the currency, but he did not mention

Jones’s involvement.

The district court did not clearly err in holding Jones

responsible for t he jointly undertaken activity of manufacturing

counterfeit currency. Graham’s testimony supports the finding that

Jones was aware of a plan to manufacture currency using a personal

computer. Jones has not challenged the accuracy of Graham’s11

testimony or Graham’s credibility as a witness. Jones’s early

involvement in discussions about manufacturing, when combined with

his close relations with Brookins and Chevalier, supports the

finding that Jones was part of a jointly undertaken activity to

manufacture and distribute counterfeit currency.

Having found that Jones agreed to participate in a jointly

undertaken activity, the district court also had to find that the

actions of Jones’s co-conspirators were reasonably foreseeable,

because there is no evidence that Jones participated in the

manufacturing process. Under § 1B1.3(a)(1)(B), one conspirator is

liable (for sentencing purposes only) for “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.”

To determine a defendant’s accountability for the conduct of

others, “that conduct must be both 'reasonably foreseeable' to the

defendant and within the scope of the defendant’s agreement.”

United States v. Carreon , 11 F.3d 1225, 1230 (5th Cir. 1994); see

al so U.S.S.G § 1B1.3 commentary 4. District courts must make a

specific factual finding that the defen dant’s conduct was

reasonably foreseeable; as in the case of the “jointly undertaken

activity”, however, the finding of foreseeability can be met by

adopting the facts conta ined in a PSR “if those facts ha[ve] an

adequate evidentiary basis and the defendant does not present

rebuttal evidence.” Lowder , 148 F.3d at 552.

Jones’s PSR recommended that the court increase his sentence

p ursuant to § 2B5.1(b)(2), and the court overruled his object ion12

and adopted the PSR. In his brief, Jones does not make specific

objections to the findings in the PSR. Thus, his objections are

inadequate. See Lowder , 148 F.3d at 552 (“Mere objections do not

suffice as competent rebuttal evidence.”). The PSR supports a

finding that it was foreseeable to Jones that his co-conspirators

were in possession of counterfeiting materials and manufactured

counterfeit notes. There is substantial evidence that defendants

agreed to make and pass counterfeit currency. Jones discussed with

Chevalier the possibility of purchasing computer hardware to make

counterfeit money, and together they passed counterfeit notes to

their neighbors and to employees at two Texas Burger restaurants.

Addit ionally, all three conspirators were found in possession of

counterfeit bills with the same s erial number, and there was

evidence that all three frequently traveled together.

Accordingly, the district court did not clearly err in

attributing to Jones the actions of his co-co nspirators to

manufacture counterfeit currency and in thereby enhancing his

se ntence pursuant to § 2B5.1(b)(2). This is not a situation in

which, on appeal, the court will be “le ft to 'second guess' the

basis for the sentencing decision.” C arreon

, 11 F.3d at 1231.

B.

Chevalier avers that there is no evidence tying him to the

production of counterfeit money. Given that Chevalier admitted to

authorities that he photocopied the counterfeit notes, however, the

district court did not clearly err in finding that he “manufactured4 See e.g.

, Uni ted States v. Miller , 77 F.3d 71, 77 n.2 (4th Cir. 1996)

(finding that possession of glue, scissors, paper, and green ink satisfied

§ 2B5.1(b)(2)); United States v. Penson, 993 F.2d 996, 997-98 (8t h Cir. 1990)

(finding that possession of a paper cutter satisfied § 2B5.1(b)(2)).

13 or produced” counterfeit currency.

Chevalier argues that the court erred in enhancing his base

s entence because the term “materials” used in § 2B5.1(b)(2) does

not include a paper cutter, straight edge, or razor and includes

only items such as paper, ribbons, and ink. This argument also has

no merit. A Secret Service agent testified that these items could

be used to manufacture counterfeit bills, and Chevalier’s own

statement that he personally “cut the counterfeit . . . using a

razor and a ruler” belies his assertion. Although this court has

never expressly addressed the issue, no circuit has adopted

Chevalier’s argument. 4

Chevalier contends that the court erred in enhancing his

sen tence because “(b)(2) does not apply to persons who merely

photocopy not es or otherwise produce items that are so obviously

counterfeit that they are unlikely to be accepted even if subjected

to only minimal scrutiny.” S ee U.S.S.G § 2B5.1(b)(2) commentary 4.

Because Chevalier raises this issue for the first time on appeal,

we review only for plain error. See United States v. Ravitch

,

128 F.3d 865, 869 (5th Cir. 1997). To determine the quality of the

counterfeit notes, we consider the following facts, none of which

is dispositive:

(1) physical inspection during th e trial or at the

sentencing hearing; (2) whether the counterfeit notes

were successfully passed; (3) the number of counterfeit

notes successfull y passed; (4) the proportion of the14

number of counterfeit notes successfully passed to the

number of notes a ttempted to be passed; and (5) the

testimony of a lay witness who accepted one or more of

the counterfeit notes or an expert witness who testified

as to the quality of the counterfeit notes.

United States v. Wyjack

, 141 F.3d 181, 184 (5th Cir. 1998) (quoting

United States v. Miller , 77 F.3d 71, 75-76 (4th Cir. 1996)). The

counterfeit notes were not so obviously counterfeit a s to be

unacceptable. Several witnesses testified that they did not

recognize the currency as counterfeit. Defense counsel argued to

the jury that defendants did not know they possessed counterfeit

money because it was a “darn good counterfeit bill” and that “many

of the[] bills were passed” and “most people didn’t recognize it as

being counterfeit.” So, the district court did not plainly or

clearly err in enhancing Chevalier’s sentence under § 2B5.1(b)(2).

VI.

Because we affirm the sentencing enhancements under

§ 2B5.1(b)(2) for manufacturing counterfeit currency and possessing

materials to manufacture counterfeit currency, defendants'

challenge to the sentencing enhancements for the $8,000 found with

Brookins, eve n if successful, would not affect their sentences.

Based on the § 2B5.1(b)(2) enhancements, both defendants will

receive a base offense level of 15 no matter whether their

enhancements for the $8,000 are affirmed. Therefore, we decline to

consider the challenge to the enhancements.

AFFIRMED.