1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-1998

Arroyo-Angulo v. United States

Precedential or Non-Precedential:

Docket 97-5407,97-5409,97-5473

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Recommended Citation

"Arroyo-Angulo v. United States" (1998). 1998 Decisions. Paper 115.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/115
Filed May 19, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-5409 

UNITED STATES OF AMERICA 

v. 

BARDUL TAFTSIOU, 

 Appellant 

No. 97-5473 

UNITED STATES OF AMERICA 

v. 

JAMES TAFTSIOU, 

aka James Taft, aka Gezim Taftsiou 

James Taftsiou, 

 Appellant 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Crim. Nos. 95-cr-00681-1, 95-cr-00681-6) 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

May 18, 1998 

Before: SLOVITER and GREENBERG, Circuit Judges , 

and POLLAK, District Judge* 

_________________________________________________________________ 

* Hon. Louis H. Pollak, United States District Court for the Eastern 

District of Pennsylvania, sitting by designation. 
(Filed May 19, 1998) 

 Jerome A. Ballarotto 

 Mel Sachs 

 Charles O. Lederman 

 Trenton, N.J. 08610 

 Attorneys for Appellants 

 Faith S. Hochberg 

 United States Attorney 

 Kevin McNulty 

 George S. Leone 

 Office of United States Attorney 

 Newark, N.J. 08101 

 Attorneys for Appellee 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

Bardul Taftsiou was convicted in the United States 

District Court for the District of New Jersey of possessing, 

delivering, passing and conspiring to pass approximately 

$1 million in counterfeit Federal Reserve Notes. At the same 

trial, his son James Taftsiou was convicted of dealing and 

conspiring to pass approximately $1 million in counterfeit 

Federal Reserve Notes. On appeal, both defendants 

challenge their convictions and sentences, raising the same 

issues. For the reasons that follow, we will affirm. 

I. 

In late 1994, Bardul Taftsiou and his brother Kadri

discussed with Mostafa Mahamoud the possibility of 

obtaining counterfeit United States currency, but ultimately 

Bardul decided to print his own counterfeit notes with the 

help of his 33-year old son James. In March and April of 

1995, James Taftsiou, using a false identity, purchased an 

extremely high capability computer for $7,300, a top-of-theline color printer for $8,000-9,000 and a very large, 

 2 
accurate commercial paper cutter. With this equipment, 

father and son began printing double-sided full-color 

counterfeit $100 notes. Several months later, they also 

began printing counterfeit $50 notes. Both denominations 

of counterfeit bills were printed with magnetic ink so that 

they would be accepted by slot machine bill validators in 

Atlantic City, New Jersey and Las Vegas, Nevada.1 

After the printing operations were underway, Bardul gave 

Mahamoud a bag of counterfeit notes and suggested that 

he recruit a group of people to go to Atlantic City over 

Memorial Day weekend to use the notes in casino slot 

machines. Once in Atlantic City, Mahamoud and the others 

would insert the notes in various slot machines, play the 

machine for a short period of time or not at all, hit the 

"cash out" button and exchange the tokens paid out by the 

machine for genuine currency. Mahamoud would then 

bring the genuine currency to Bardul and Kadri Taftsiou in 

exchange for more counterfeit notes. 

On May 28, 1995, during the Memorial Day weekend 

trip, one of the men in Mahamoud's group successfully 

passed three of the counterfeit $100 bills to a prostitute, 

who informed the police when she realized the bills were 

counterfeit. Thereafter, both genuine and counterfeit notes 

were found in Mahamoud's room and on his person, some 

of which matched the bills given to the prostitute.

An additional $55,000 of the Taftsious' counterfeit notes 

was passed in slot machines in various Atlantic City 

casinos over the Memorial Day weekend. Secret Service 

agents testified that they could trace the notes to the 

Taftsiou group because they had never before encountered 

notes exactly like those recovered from Mahamoud and the 

others during the Memorial Day weekend. The notes 

exhibited several distinct patterns that did not appear 

_________________________________________________________________ 

1. Bill validators allow a casino's customers to play slot machines using 

paper currency. Once a customer inserts a bill into the validator, the 

validator scans the bill for the presence of magnetic ink as used in 

genuine United States currency. If the bill is accepted, the customer can 

either play the machine or "cash out" and receive casino tokens 

redeemable for cash. 

 3 
anywhere in the Secret Service's nationwide database of 

recovered counterfeit currency. 

In the summer of 1995, James Taftsiou began passing

the counterfeit notes in Las Vegas. On the July 4th

weekend, James and his friend Bujar Musa were captured 

on casino surveillance videotapes passing the counterfeit 

notes in various slot machines. By July 13, 1995, the 

Secret Service in Las Vegas had received $79,000 of the 

Taftsious' counterfeit notes. 

From June 1 through November 17, 1995, Secret Service 

agents apprehended fourteen individuals for passing the 

Taftsious' counterfeit currency in both Atlantic City and Las 

Vegas and collected over $325,000 of the Taftsious' notes. 

Those arrested included relatives, friends, friends of 

relatives and individuals randomly recruited by James 

Taftsiou to pass the counterfeit notes in the casinos. 

Mahamoud began cooperating with the investigating 

authorities in October of 1995. Bardul and some of his 

family members were arrested in November 1995 at 

Tropworld Casino in Atlantic City where they passed

counterfeit bills into slot machines while Bardul collected 

the casino tokens from them and exchanged them for 

genuine currency. The agents recovered $9,000 in both 

counterfeit and genuine currency from the arrestees, their 

car, and the slot machines they had been playing. James 

Taftsiou was subsequently arrested on February 6, 1996. 

Count One of the five-count superseding indictment 

charged Bardul, James, Nazmije Taftsiou (Bardul's wife), 

Julie Hasimi (Bardul's daughter) and Ilim Asimi (Julie 

Hasimi's brother-in-law) with conspiring with each other 

and seventeen other named co-conspirators plus others 

known and unknown to buy, sell, exchange, transfer,

deliver, pass, utter conceal and keep in their possession 

approximately $1 million in counterfeit $100 and $50 

Federal Reserve Notes in violation of 18 U.S.C. SS 371, 472 

and 473.2 Bardul and Nazmije Taftsiou, Julie Hasimi and 

Ilim Asimi were charged in Count Two with passing 

_________________________________________________________________ 

2. Arzija Taftsiou, Bardul's mother, was indicted with the others, but the 

charges against her were dismissed. 

 4 
approximately 17 counterfeit $50 notes with intent to 

defraud in violation of 18 U.S.C. SS 472 and 2, and in 

Count Three with possessing and concealing approximately 

90 counterfeit $50 notes in violation of 18 U.S.C. SS 472 

and 2. Count Four charged James Taftsiou with dealing in 

approximately 60 counterfeited $50 notes in violation of 18 

U.S.C. SS 473 and 2. Count Five charged Bardul Taftsiou 

with dealing in approximately 17 counterfeit $50 notes, also 

in violation of 18 U.S.C. SS 473 and 2. Approximately 

twenty other individuals were charged for related offenses 

in separate indictments. 

Following a seven-week trial, Bardul and James Taftsiou 

were found guilty on all counts with which they had been 

charged. Nazmije Taftsiou and Julie Hasimi were acquitted. 

Bardul was then sentenced to four 51-month terms of

imprisonment to be served concurrently, and James was 

sentenced to two concurrent 54-month terms. Both were 

ordered to pay $25,000 in restitution, but were given no 

fine. These consolidated appeals followed. 

II. 

A. 

Appellants argue first that the district court erred in 

denying their motion for acquittal which they filed at the 

close of the government's case-in-chief. Defendants do not 

contest the relevant facts but argue that there was

insufficient evidence to support a finding that they intended 

to pass the counterfeit notes to any person or that the 

notes appeared sufficiently genuine to be considered 

"counterfeit" within the meaning of 18 U.S.C. SS 472 and 

473. At the end of the trial, the district court denied the 

motion, finding that the "bills were two-sided. They were 

both $100's and $50's. They bore a close resemblance in 

terms of the images on both sides to a genuine bill, and 

they also bore a close resemblance to the color and colors 

found both on the backs and the fronts of genuine bills." 

App. at 143. 

Our review is plenary and, in exercising that review, we 

must interpret the evidence in the light most favorable to 

 5 
the government as the verdict winner. See United States v. 

Rieger, 942 F.2d 230, 232 (3d Cir. 1991). 

Section 472 of Title 18 of the United States Code 

provides, in relevant part, that "[w]hoever, with intent to 

defraud, passes . . . or keeps in possession or conceals any 

. . . counterfeited . . . obligation . . . of the United States, 

shall be fined under this title or imprisoned not more than 

fifteen years, or both." 18 U.S.C. S 472. Section 473 

provides in relevant part that "[w]hoever buys, sells, 

exchanges . . . any . . . counterfeited . . . obligation . . . of 

the United States, with the intent that the same be passed 

. . . as true and genuine, shall be fined under this title or 

imprisoned not more than ten years, or both." 18 U.S.C. 

S 473. Neither statute on its face requires that a defendant 

have intended to pass the counterfeit notes to a person or 

that the notes closely resemble genuine currency. 

Over fifty years ago, however, this court held in United 

States v. Lustig, 159 F.2d 798 (3d Cir. 1947), rev'd in part 

on other grounds, 338 U.S. 74 (1949), that 

 the proper test to be applied is whether the fraudulent 

 obligation bears such a likeness or resemblance to any 

 of the genuine obligations or securities issued under 

 the authority of the United States as is calculated to 

 deceive an honest, sensible and unsuspecting person of 

 ordinary observation and care when dealing with a 

 person supposed to be upright and honest. 

Id. at 802. 

Only those counterfeit notes that are sufficiently similar 

to genuine currency so as to meet this definition may be 

considered "counterfeit." Id. Since we issued Lustig, our 

reasoning and the language we employed there have been 

adopted by virtually every court that has addressed the 

issue. See, e.g., United States v. Gomes, 969 F.2d 1290 (1st 

Cir. 1992); United States v. Ross, 844 F.2d 187 (4th Cir. 

1988); United States v. Cantwell, 806 F.2d 1463 (10th Cir. 

1986); United States v. Johnson, 434 F.2d 827 (9th Cir. 

1970). 

Defendants argue that because the paper notes they 

circulated were not of high enough quality to pass hand-to- 

 6 
hand, they could not be characterized as "counterfeit." They 

rely almost exclusively on the opinion of the United States 

Court of Appeals for the Fourth Circuit in Ross, 844 F.2d 

187, where the $1 bill defendants were charged with

counterfeiting was a one-sided photocopied black and white 

reproduction on plain white paper. The defendants had 

attempted to insert the photocopy into a change machine at 

a car wash. Their convictions under 18 U.S.C. SS 471 and 

472 were reversed on the ground that the reproduction was 

not sufficiently similar to genuine notes. According to the 

court, the photocopies were "patently fake,""obviously false 

and bogus," and could not be mistaken for genuine from 

"one hundred feet away." Id. at 189-90. In addition, the 

court pointed out that there had been no testimony that the 

reproduction had actually deceived anyone. Id. at 190. 

The evidence in this case differs from that in Ross. 

Bardul's daughter Julie Hasimi testified that she believed 

the counterfeit notes were genuine, and there was evidence 

in the record that three of the bills had been successfully 

passed to at least one person. Supp. App. at 86. A Secret 

Service expert in the analysis of counterfeit currency 

testified that the Taftsious' bills were "average" and that she 

was aware of worse quality bills having been successfully 

passed in other cases. Supp. App. at 246A. 

In addition to the testimony adduced at trial, physical 

examples of the Taftsious' counterfeit notes were admitted 

into evidence. See Addendum to Appellee's Br.; Gov't. Exh. 

183, 220. Therefore, presumably each juror could touch 

and examine the notes and come to his or her own 

conclusion regarding the reasonableness of their being 

accepted by an honest, unsuspecting person. Thus, it was 

not improper for the district court to have described the 

bills on the record and to have commented that "the

evidence speaks for itself." App. at 143. In doing so, the 

judge did not, as appellants claim, improperly weigh the 

evidence. The judge merely acknowledged that the jurors 

were entitled to examine and consider the Taftsious' notes 

in reaching their conclusion, based on the totality of the 

evidence, that the bills were sufficiently similar to genuine 

currency to be "counterfeit" within the meaning of 18 

U.S.C. SS 472 and 473. 

 7 
Finally, we reject appellants' suggestion that the 

counterfeiting statutes at issue require them to have passed 

or intended to pass their notes to persons, as opposed to 

machines. Our decision in Lustig with its emphasis on 

whether the bills could deceive "an honest, sensible and 

unsuspecting person" was written in a time when machines 

were not regularly used to process money. There seems 

little reason why false bills that are successfully processed 

through machines, whether slot machines, vending 

machines or others, should not be treated the same for 

purposes of the counterfeiting statutes as false bills that 

were passed to a person. The intent to defraud is the same, 

as is the effect. The statutes themselves do not contain 

language requiring passing to a person. A slight 

clarification by Congress to expressly require treatment of 

counterfeit bills passed through machines equal to that of 

counterfeit bills passed to persons would eliminate any 

question of a different interpretation. However, we need not 

resolve this issue because the record before us is adequate 

for us to affirm the district court's denial of appellants' Rule 

29 motion for judgment of acquittal even under the Lustig 

standard. 

B. 

Defendants next argue that the district court erred in 

refusing to charge a misdemeanor violation of 18 U.S.C. 

S 491 as a lesser included offense of the counterfeiting 

charges. Following some period of uncertainty as to the 

interpretation of Rule 31(c) of the Federal Rules of Criminal 

Procedure with respect to when a jury may convict a

defendant "of an offense necessarily included in the offense 

charged," there are now some clear guidelines. A district 

court is required to charge an offense as a lesser included 

of a greater offense when requested if "the elements of the 

lesser offense are a subset of the elements of the greater 

offense." United States v. Mosley, 126 F.3d 200, 203 (3d 

Cir. 1997). On the other hand, "[w]here the lesser offense 

requires an element not required for the greater offense, no 

instruction is to be given under Rule 31(c)." Schmuck v. 

United States, 489 U.S. 705, 716 (1989). "This standard 

involves a textual comparison, looking solely to the 

 8 
elements of the two offenses; inferences arising from the 

evidence and similarities as to the interests served by the 

statutes are not relevant." Mosley, 126 F.3d at 203-04 

(citing Schmuck, 489 U.S. at 720). 

In the case at bar, a most cursory review of the relevant 

statutory language reveals that the lesser offense of S 491 

requires elements not required by SS 472 and 473.3 Namely, 

_________________________________________________________________ 

3. The full text of S 472 is as follows: 

 Whoever, with intent to defraud, passes, utters, publishes, or 

sells, 

 or attempts to pass, utter, publish, or sell, or with like intent 

brings 

 into the United States or keeps in possession or conceals any 

falsely 

 made, forged, counterfeited, or altered obligation or other 

security of 

 the United States, shall be fined under this title or imprisoned 

not 

 more than fifteen years, or both. 

18 U.S.C. S 472. 

Section 473 provides in full: 

 Whoever buys, sells, exchanges, transfers, receives, or delivers 

any 

 false, forged, counterfeited, or altered obligation or other 

security of 

 the United States, with the intent that the same be passed, 

 published, or used as true and genuine, shall befined under this 

 title or imprisoned not more than ten years, or both. 

18 U.S.C. S 473. 

The relevant subsections of the misdemeanor statute that the 

appellants contend the district court should have charged as a lesser 

included offense are as follows: 

 (a) Whoever, being 18 years of age or over, not la wfully 

 authorized, makes, issues, or passes any coin, card, token, or 

device 

 in metal, or its compounds, intended to be used as money, or 

 whoever, being 18 years of age or over, with intent to defraud, 

 makes, utters, inserts, or uses any card, token, slug, disk, 

device, 

 paper, or other thing similar in size and shape to any of the 

lawful 

 coins or other currency of the United States or any coin or other 
 currency not legal tender in the United States, to procure anything 

 of value, or the use or enjoyment of any property or service from 

any 

 automatic merchandise vending machine, postage-stamp machine, 

 turnstile, fare box, coinbox telephone, parking meter or other 

lawful 

 receptacle, depository, or contrivance designed to receive or to be 

 operated by lawful coins or other currency of the United States, 

 shall be fined under this title, or imprisoned not more than one 

 year, or both. 

 9 
S 491 requires that a fraudulent card, slug or paper be 

used or intended to be used in a vending machine, stamp 

machine, turnstile, fare box, or other "contrivance designed 

to receive or to be operated by lawful coins or other 

currency of the United States." 18 U.S.C. S 491. Sections 

472 and 473 have no such requirement. 

Thus, if one were to pass counterfeit notes to a human 

being, the perpetrator could be convicted underS 472, but 

would not be guilty of having violated S 491. Likewise, one 

who buys or sells counterfeit notes could be convicted 

under S 472, but would not necessarily be guilty of having 

violated S 491. The mere coincidence that, in this case, 

defendants' conduct may have simultaneously violated 

SS 472, 473, and 491 does not affect the Rule 31(c)

analysis. See Schmuck, 489 U.S. at 716-17 (the 

"comparison is appropriately conducted by reference to the 

statutory elements of the offenses in question, and not . . . 

by reference to conduct proved at trial. . . .")."[L]ooking 

solely to the elements of the two offenses," Mosley, 126 F.3d 

_________________________________________________________________ 

 (b) Whoever manufactures, sells, offers, or advert ises for sale, 

or 

 exposes or keeps with intent to furnish or sell any token, slug, 

disk, 

 device, paper, or other thing similar in size and shape to any of 

the 

 lawful coins or other currency of the United States, or any token, 

 disk, paper, or other device issued or authorized in connection 

with 

 rationing or food and fiber distribution by any agency of the 

United 

 States, with knowledge or reason to believe that such tokens, 

slugs, 

 disks, devices, papers, or other things are intended to be used 

 unlawfully or fraudulently to procure anything of value, or the use 

 or enjoyment of any property or service from any automatic 

 merchandise vending machine, postage-stamp machine, turnstile, 

 fare box, coin-box telephone, parking meter, or other lawful 

 receptacle, depository, or contrivance designed to receive or to be 

 operated by lawful coins or other currency of the United States 

shall 

 be fined under this title or imprisoned not more than one year, or 

 both. 

 Nothing contained in this section shall create immunity from 

 criminal prosecution under the laws of any State, Commonwealth of 

 Puerto Rico, territory, possession, or the District of Columbia. 

18 U.S.C. S 491. 
 10 
at 203, S 491 is not a lesser included offense of SS 472 and 

473. 

Accordingly, we will affirm the district court's denial of 

the Taftsious' Rule 31(c) motion to charge 18 U.S.C.S 491 

as a lesser included offense of the counterfeiting violations 

of which they were convicted. 

C. 

Finally, the Taftsious challenge their sentences on two 

different grounds. First, they argue that the district court 

erred in enhancing their sentences by 11 levels pursuant to 

U.S.S.G. SS 2B5.1(b)(1) on the ground that the "amount of 

loss" was allegedly unsubstantiated by the evidence. 

Second, they contend that the 11-level enhancement was 

improper in light of the poor quality of the notes.

Under the United States Sentencing Guidelines, a 

violation of 18 U.S.C. SS 472 and 473 carries with it a base 

offense level of 9. U.S.S.G. S 2B5.1(a). "If the face value of 

the counterfeit items exceeded $2,000," the court should 

increase the offense level using the table in S 2F1.1. 

U.S.S.G. S 2B5.1(b)(1). That table provides for an increase 

of 11 levels where the value of the counterfeit items is 

between $800,000 and $1.5 million. U.S.S.G. 

S 2F1.1(b)(1)(L). 

In this case, the Probation Office quantified the face value 

of the counterfeit notes attributable to these defendants at 

$1.2 million. At sentencing, the district court found by a 

preponderance of the evidence that the amount in issue for 

purposes of S 2F1.1 was between $800,000 and 

$1.5 million. Accordingly, following SS 2B5.1 and 2F1.1, the 

court increased the Taftsious' offense level by 11 levels. 

We review the district court's factual findings for clear 

error and may reverse those findings only where they are 

"completely devoid of a credible evidentiary basis or bear[ ] 

no rational relationship to the supporting data." United 

States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997) (quoting 

American Home Prod. Corp. v. Barr Labs., Inc., 834 F.2d 

368, 370-71 (3d Cir. 1987)). 

 11 
At trial, Secret Service Agent Brian Donovan testified that 

approximately $210,000 in counterfeit notes was recovered 

directly from the defendants and their co-conspirators and 

in casino machines which they were playing when found. 

Lorelei Pagano, a Secret Service Agent expert in the 

analysis of counterfeit currency, testified that virtually all of 

the $1.2 million in counterfeit notes, including the 

$210,000 identified by Agent Donovan, had a "common

origin" and were made from a "common source." Supp. App. 

at 234. Susan Fortunato, another agent expert in the 

analysis of counterfeit currency, testified that all of the 

notes comprising the approximately $1.2 million in the 

possession of the Secret Service had been printed using the 

same brand of computer equipment purchased by James

Taftsiou. 

In an attempt to counter this evidence, appellants 

challenge Agent Pagano's analysis on the ground that she 

actually examined only a handful of the notes at issue. 

However, Agent Pagano testified in detail regarding the 

analysis she employed in identifying the $1.2 million in 

counterfeit notes as being of common origin. Her testimony 

was sufficient to support a finding that all $1.2 million 

originated from a common source. In turn, other evidence 

in the record, including the testimony of Agents Fortunato 

and Donovan as well as that of James Taftsiou and several 

of his co-conspirators, was sufficient to support a finding 

that the source was the Taftsious. 

Moreover, appellants' general assertion that "only a 

fraction of the $1.2 million charged was directly linked to 

this case and any related cases" does not demonstrate clear 

error. Given the district court's finding that the face value 

of the notes at issue was between $800,000 and 

$1.5 million, the Taftsious would have to show that Agent 

Pagano's calculations were off by more than $400,000-- 

something they have not attempted to do -- before they 

could succeed in proving reversible error. See U.S.S.G. 

S 2F1.1, Appl. Note 8 ("For the purpose of subsection (b)(1), 

the loss need not be determined with precision. The court 

need only make a reasonable estimate of the loss, given the 

available information."). 

 12 
Defendants next challenge the $1.2 million lossfigure on 

the ground that "this is the age of technology" and argue 

they should not "be held accountable for such an amalgam 

of printed material while the various components are 

certainly available to millions of people within the ether of 

the Internet." Appellants' Br. at 27-28. They cite nothing in 

the record to suggest that copies of their counterfeit bills 

were available on the Internet or that any of the notes at 

issue were in fact obtained by anyone from that source. 

Such wild speculation is inadequate to demonstrate clear 

error on the part of the district court. 

The Taftsious seek some assistance from application note 

4 to U.S.S.G. S 2B5.1 which provides, in full, that

"[s]ubsection (b)(2) [of S 2B5.1] does not apply to persons 

who merely photocopy notes or otherwise produce items 

that are so obviously counterfeit that they are unlikely to be 

accepted even if subjected to only minimal scrutiny." They 

contend that theirs are examples of the "so obviously 

counterfeit" notes to which the application note is

addressed. However, note 4 is limited by its terms to 

enhancements under subsection (b)(2) of S 2B5.1 while the 

district court in the case at bar proceeded under subsection 

(b)(1). Nonetheless, appellants argue that the "same sort of 

limiting analysis should have been applied to the 

enhancement under S 2B5.1(b)(1)." Appellants' Br. at 29. 

The Sentencing Commission has expressly and 

unambiguously limited the reach of note 4 to subsection 

(b)(2), and we are not at liberty to extend its application to 

other subsections by judicial fiat alone. Accordingly, we find 

no error in the district court's finding that the face value of 

the Taftsious' counterfeit currency was between $800,000 

and $1.5 million and that appellants' offense level should 

be increased by 11 levels pursuant to U.S.S.G. 

SS 2B5.1(b)(1) and 2F1.1(b)(1)(L). 

III. 

For the reasons stated above, we will affirm the 

judgments of conviction and sentence entered by the

district court. 

 13 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14