1 13-3666-cr United States v. Whitehead UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 3 rd day of October, two thousand fourteen. PRESENT: RALPH K. WINTER, REENA RAGGI, PETER W. HALL, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 13-3666-cr SHAUN WHITEHEAD, Defendant-Appellant

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: FRANCIS LEE O’REILLY, O’Reilly & Shaw LLC, Southport, Connecticut.
APPEARING FOR APPELLEE: FELICE M. DUFFY (Edward Chang, on the brief ), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut. Appeal from a judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on September 9, 2013, is AFFIRMED. Defendant Shaun Whitehead, wh o stands convicted after a jury trial of five counts of passing counterfeit one-hundred dollar bills, see 18 U.S.C. § 472, argues that the trial evidence was insufficien t to prove his knowledge that th e bills were counterfeit or his intent to defraud. We review a sufficiency ch allenge de novo and must affirm if, “viewing the evidence in the light most favorable to the prosecution, an y rational trier of fact could have found the essential elements of the cr ime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as nece ssary to explain our decision to affirm. On appeal, Whitehead does not contest that he used counterfeit bills on five occasions to purchase iPads and Bose headp hones, which he then returned to different store locations for non-counterfeit cash refund s. Rather, Whitehead asserts that the evidence failed to prove beyond a reasonable doubt his knowledge that the bills he used were counterfeit or his intent to defraud. Neither the law nor the facts supports this argument. The law has long recognized that knowledg e and intent must frequently be proved through circumstantial evidence. See United St ates v. MacPherson, 424 F.3d 183, 189–90 (2d Cir. 2005). Here, the circumstantial eviden ce of Whitehead’s culpable mens rea was3 compelling. First, Whitehead engaged in an unusual patte rn of traveling across the tri-state area to purchase the same expensiv e items, each time with counterfeit one-hundred dollar bills, and each time returni ng the items to a different st ore within days for a cash refund. See id. at 190–91 (h olding that jury may infer guilty intent from pattern of conduct); see also United States v. Sheiner, 410 F.2d 337, 3 40 (2d Cir. 1969) (holding that guilty knowledge may properly be inferred from variety of circumstances, including “number of counterfeits passed over a short pe riod of time”). Indeed, an expert testified that buying and returning expensive ite ms is a common method for swapping large denomination counterfeit bills for genuine currency. See United States v. Abdulle, 564 F.3d 119, 129 (2d Cir. 2009) (finding that co nviction was supported in part by expert testimony that defendant’s beha vior was consistent with criminal practices). Second, multiple witnesses testified to the suspect nature of th e bills, including their fake appearance, feel, and smell. Moreover, all of the counterfeit bills used by Whitehead were admitted into evidence, enabling the jury to assess fo r itself their readily apparent counterfeit nature. See United States v. Asbury, 586 F.2d 973, 978 (2d Cir. 1978) (upholding counterfeiting convictions agains t sufficiency challenge where “jurors examined the bills and could conclude that th eir counterfeit nature must have been readily apparent to [defendants]”). Third, witne sses testified to Whitehead’s nervousness while using the counterfeit bills and hi s quick exit from several stores after doing so. Fourth, the prosecution presented evidence that Whitehe ad had lied about why he was rushing from the scene of one of his acts, falsely stating th at he had children waiti ng in his car. Fifth,4 when arrested, Whitehead (a) attempted to hide various receipts from the stores he had defrauded; (b) possessed a fake Florida drive r’s license with his picture but a different name; and (c) told an arresting officer that he had “nothing to say” because the case against him was “rock solid.” When these circumstance s are viewed in the light most favorable to the prosecution, a reasonable jury certainly could have concluded that Whitehead knowingly used counterfeit currenc y with intent to defraud. In urging otherwise, Whitehead argues that (1) no direct evidence was presented wherein he admitted knowledge of the bills’ inauthenticity; (2) on one occasion, he did not flee the scene quickly; (3) one witness testified that he did not appear nervous when using the counterfeit bills; (4) there were other expl anations for his leaving one of the stores quickly; and (5) several witnesses testified to the high quality of the counterfeit bills. Whitehead’s first argument is defeated by pr ecedent. See United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (obser ving that “[d]irect evidence is not requ ired; in fact, the government is entitled to prove its case solely through circum stantial evidence, provided, of course, that the government still demonstr ates each element of the charged offense beyond a reasonable doubt” (inter nal quotation marks omitted)); see also United States v. MacPherson, 424 F.3d at 189–90 (collecting cases). The same conclusion obtains as to Whitehead’s remaining arguments. See United States v. Praddy, 72 5 F.3d 147, 152 (2d Cir. 2013) (“Choices between competing infere nces and assessments of witness credibility lie solely within the province of the jury. The jury is free to believe part, and to disbelieve part, of any given witness’s testimony. Wher e there are conflicts in the testimony, we5 must defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses. . . . These principles apply whethe r the evidence being reviewed is direct or circumstantial.” (citations, internal quota tion marks, brackets, and ellipses omitted)). Accordingly, Whitehead’s sufficiency challenge fails on the merits. We have considered Whitehead’s remaini ng arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court