In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 01-4120 & 02-1356

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHAD HUGHES and GARY BOVEY,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 CR 151—Rudy Lozano, Judge.

____________

ARGUED SEPTEMBER 5, 2002—DECIDED NOVEMBER 13, 2002

____________

Before COFFEY, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge. A four-count indictment charged

Chad Hughes and Gary Bovey with various offenses

involving the production and distribution of counterfeit

United States currency. Count I alleged that both individuals had conspired to make and to pass counterfeit currency; Count II alleged that both individuals had made

counterfeit currency; and Counts III and IV charged them

with passing counterfeit currency. After a jury trial, Mr.

Hughes was convicted on all counts; he was sentenced

to concurrent terms of 18 months’ imprisonment on each

count. Mr. Bovey was convicted on Counts I, II and III;
2 Nos. 01-4120 & 02-1356

1 The jurisdiction of the district court was based on 18 U.S.C.

§ 3231. Our jurisdiction is based on 28 U.S.C. § 1291.

he was sentenced to concurrent terms of 27 months’ imprisonment on each count. A fine also was imposed on Mr.

Hughes, and a period of supervised release and restitutionary obligations were imposed on each defendant.

Both defendants now appeal to this court. For the reasons set forth in the following opinion, we affirm the

judgments entered by the district court.1

I

BACKGROUND

According to the Government’s case at trial, Mr. Hughes

and Mr. Bovey began producing counterfeit United States

currency during 1996 or 1997. The pair produced the

counterfeit bills with a Hewlett Packard ink jet printer that

Mr. Bovey had stolen from an office supply store. Mr.

Hughes and Mr. Bovey used bonded paper as well as

colored ink to produce the bogus currency. At least one

individual, Chris Ward, witnessed both defendants produce the fake bills.

In February 2000, Mr. Hughes and Mr. Bovey passed

several counterfeit bills to unsuspecting merchants in the

West Lafayette, Indiana area. For instance, Mr. Hughes

paid for two purchases at a local tavern with counterfeit

one hundred dollar bills. He also passed a counterfeit

twenty dollar bill to a sales clerk at a Target store.

An investigation into the forged bills led authorities to

Mr. Hughes and Mr. Bovey. When the investigators first

contacted them about the counterfeit bills, both defendants indicated that they had not passed fake one hun-
Nos. 01-4120 & 02-1356 3

dred dollar bills on the days in question. These statements

further strengthened the investigators’ suspicions because,

during these interviews, they had not mentioned the denomination of the phony currency. A grand jury returned

a multi-count indictment against Mr. Hughes and Mr.

Bovey for their involvement in the production and distribution of counterfeit currency.

II

DISCUSSION

A. Mr. Hughes

1.

Prior to trial, Mr. Hughes moved to dismiss the indictment on the ground that the first count was duplicitous

because it charged him with conspiring to make and

to pass counterfeit currency. In his view, this allegation

comprised two separate crimes and therefore should not

have been included in a single count. The district court

denied the motion. The court reasoned that a conspiracy, even one with multiple illicit objectives, constitutes

a single crime.

Before this court, Mr. Hughes again submits that the

first count of the indictment contained duplicitous

charges. In his view, the district court should have dismissed this count of the indictment. “ ‘Duplicity’ is the

joining of two or more offenses in a single count.” United

States v. Marshall, 75 F.3d 1097, 1111 (7th Cir. 1996). “The

overall vice of duplicity is that the jury cannot in a general verdict render its findings on each offense, making

it difficult to determine whether a conviction rests on

only one of the offenses or both.” United States v. Buchmeier,

255 F.3d 415, 425 (7th Cir. 2001) (internal quotations omit-
4 Nos. 01-4120 & 02-1356

ted). A duplicitous indictment also “may expose a defendant to other adverse effects including improper notice

of the charges against him, prejudice in the shaping of

evidentiary rulings, in sentencing . . . and of course the

danger that a conviction will result from less than a unanimous verdict.” Id. at 425 (internal quotations omitted).

Count I of the indictment alleged that the defendants

had conspired to make and to pass counterfeit bills in

violation of the federal conspiracy statute, 18 U.S.C. § 371.

As Mr. Hughes notes, making counterfeit bills alone

constitutes a federal crime; passing such counterfeit currency also constitutes a federal crime. See 18 U.S.C. § 471

(unlawful to counterfeit obligations); 18 U.S.C. § 472

(unlawful to pass falsely made counterfeit obligations).

Count I of this indictment, however, did not charge

Mr. Hughes with either of these violations. Rather, the

first count alleged a single criminal activity—conspiracy

to commit an offense against the United States. To be

sure, the indictment alleges that this single conspiracy had

two illicit objectives, each of which constitutes a crime.

However, as the Supreme Court has observed: “A conspiracy is not the commission of the crime which it contemplates, and neither violates nor ‘arises under’ the statute whose violation is its object. . . . The single agreement

is the prohibited conspiracy, and however diverse its objects it violates but a single statute.” Braverman v. United

States, 317 U.S. 49, 54 (1942); see also United States v. Bruun,

809 F.2d 397, 405-06 (7th Cir. 1987). Consequently, “[t]he

allegation in a single count of a conspiracy to commit

several crimes is not duplicitous, for [t]he conspiracy is

the crime, and that is one, however diverse its objects.”

Braverman, 317 U.S. at 54 (internal quotations omitted); see

also Bruun, 809 F.2d at 406.
Nos. 01-4120 & 02-1356 5

2 Mr. Hughes also submits that the district court should have

given instructions that would have required the jury to make

explicit whether they found him guilty of conspiring to pass

counterfeit bills or conspiring to make counterfeit bills. He

submits that this specific finding was required before the district court could set his base offense level under the Sentencing Guidelines. The Guidelines indicate that, in setting the

base offense level for conspiracy, the district court should turn

to the base offense level of the substantive offense. See U.S.S.G.

§ 2X1.1. In this case, U.S.S.G. § 2B5.1 provides a base offense

level of nine for passing or making counterfeit currency. Although it is true that the district court enhanced Mr. Hughes’

sentence an additional six levels because it concluded that he

had made the counterfeit currency, this determination did not

raise the sentence above the statutory maximum. Consequently,

this determination did not offend notions of due process. Cf.

Harris v. United States, 122 S. Ct. 2406, 2414-15 (2002).

We have recognized that when “several statutes are alleged as the objective of a conspiracy,” the Government

need only establish that the defendant’s illicit objective

involved “one of those statutes to convict.” United States

v. Muelbl, 739 F.2d 1175, 1183 (7th Cir. 1984). However,

when several different crimes are the object of a single

conspiracy, a jury possibly could find a defendant guilty

of conspiracy even though the jurors do not agree on

which crime was the object of the conspiracy. As the

Government points out, however, the instructions concerning Count I given to the jury in this case told the

jurors that, in order to convict Mr. Hughes on Count I,

they had to agree unanimously that the defendants conspired to make counterfeit money; or that they conspired

to pass counterfeit money; or that they conspired to do

both.2

 Accordingly, the instructions negated any possibility that Mr. Hughes was convicted on the basis of a nonunanimous verdict.
6 Nos. 01-4120 & 02-1356

3 In general terms, this provision provides a six-level enhancement for an individual who (1) manufactured or produced a

counterfeit obligation; or (2) possessed or had custody over a

counterfeit device.

4 Mr. Bovey raises an identical argument concerning § 2B5.1(b)(2).

The district court correctly determined that Count I of

the indictment was not duplicitous.

2.

Mr. Hughes also submits that the district court erred in

calculating his sentence under U.S.S.G. § 2B5.1(b)(2). In

calculating the respective sentences of Mr. Hughes and

Mr. Bovey, the district court relied, in part, upon U.S.S.G.

§ 2B5.1(b)(2).3

 The defendants vigorously contested the

applicability of this provision to their conduct. In particular, relying on Application Note 4 to this provision, Mr.

Hughes and Mr. Bovey submitted that U.S.S.G. § 2B5.1(b)(2)

did not apply to individuals who produced the counterfeit bills through photocopying. In rejecting this contention, the district court took the view that the defendants

had read too narrowly this application note. The court held

that the application note did not exempt those who had

photocopied from § 2B5.1(b)(2)’s six-level enhancement;

rather, it exempted from an enhancement those individuals who had made obvious forgeries. On appeal, relying

on Application Note 4 of this provision, Mr. Hughes renews his assertion that U.S.S.G. § 2B5.1(b)(2) does not

apply to his conduct because he produced the counterfeit currency through photocopying.4

Under the Sentencing Guidelines, an offense involving counterfeit currency of the United States mandates
Nos. 01-4120 & 02-1356 7

5 The current version of the Sentencing Guidelines makes no

reference to photocopying. Application Note 4 now provides

in its entirety that the enhancement “does not apply to persons who produce items that are so obviously counterfeit that

they are unlikely to be accepted even if subjected to only minimal scrutiny.” U.S.S.G. § 2B5.1, application n.4. 

a base offense level of 9. See U.S.S.G. § 2B5.1. “If the defendant manufactured or produced any counterfeit obligation or security of the United States, or possessed or had

custody of or control over a counterfeit device or materials used for counterfeiting,” the district court may increase the base level to 15 pursuant to U.S.S.G. § 2B5.1(b)(2).

The guidelines create, however, a narrow exception to

this enhancement embodied in § 2B5.1(b)(2). At the time

of Mr. Hughes’ sentence, the commentary to § 2B5.1 provided that § 2B5.1(b)(2) and its enhancement do 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.” U.S.S.G. § 2B5.1, application n.4.5

However, contrary to Mr. Hughes’ assertion, an individual’s conduct is not removed from the ambit of

§ 2B5.1(b)(2) simply because he produced the counterfeit

notes through photocopying. As we have explained, “[t]he

‘obviously counterfeit’ language in [Application Note 4]

modifies and limits both the ‘merely photocopy’ and the

‘otherwise produce’ language, and therefore the [exception] describes only one situation: when the method used

by the counterfeiter produces an obvious forgery—whether by photocopying or some other method.” United

States v. Baronia, 287 F.3d 607, 608 (7th Cir. 2002). Simply

put, “[t]he proper inquiry for exclusion from [U.S.S.G.

§ 2B5.1(b)(2)] is not how the bills were made, but rather

how well they were made.” Baronia, 287 F.3d at 609.
8 Nos. 01-4120 & 02-1356

6 Mr. Bovey renewed his motion to sever during trial. The district court again denied the motion.

The district court concluded that the notes were not “obviously counterfeit.” Sentencing Tr. at 89. In reaching this

conclusion, the court emphasized that none of the merchants rejected the counterfeit currency, that Mr. Hughes

produced the fake notes on “heavier bonded paper, which

made them very realistic,” and that he produced the money with colored ink as opposed to black and white ink. Id.

Mr. Hughes used an ink jet printer and a copy machine

to produce his counterfeit bills. However, as Baronia

makes evident, that is not the dispositive inquiry in considering whether conduct falls within the ambit of Application Note 4. Because the district court concluded that

the notes were not “obviously counterfeit,” it did not err

in calculating Mr. Hughes’ base offense level under U.S.S.G.

§ 2B5.1(b)(2).

B. Mr. Bovey

1.

Before trial, Mr. Bovey moved to sever his trial from

that of Mr. Hughes. Mr. Bovey submitted that he and his

co-defendant intended to proceed with antagonistic defenses. After considering the parties’ positions, the district court declined to grant the motion to sever. The

court noted that Mr. Bovey simply had not demonstrated

“the specific harm, prejudice or risk involved” in failing

to sever the proceedings. R.113 at 9. Moreover, the district court emphasized that Mr. Bovey had failed to proffer

evidence of the type that generally warranted severance.6
Nos. 01-4120 & 02-1356 9

7 In Bruton v. United States, 391 U.S. 123 (1968), the Supreme

Court held that, as a general matter, the Sixth Amendment forbids the admission of a co-defendant’s confession inculpating

the defendant unless the co-defendant takes the stand, because the defendant would be robbed of his right to confront

and cross-examine witnesses against him.

Mr. Bovey now submits that the district court erred in

denying his motion to sever his case from that of Mr.

Hughes. He submits that the attempts of Mr. Hughes’

counsel to shift blame to him through argument and

cross-examination, combined with the references to Mr.

Bovey’s previous odometer tampering, severely prejudiced his right to receive a fair trial. We review a district court’s denial of a motion to sever for an abuse of

discretion. See United States v. Wilson, 237 F.3d 827, 835

(7th Cir. 2001).

To promote efficiency and to prevent “the scandal and

inequity of inconsistent verdicts,” the federal judicial system has adopted a preference for “joint trials of defendants who are indicted together.” Zafiro v. United States, 506

U.S. 534, 537 (1993) (internal quotations omitted). “[A]

district court should grant a severance . . . only if there is

a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.” Id. at 539; see also Wilson, 237 F.3d at 835. For

instance, in certain circumstances, the complexity of the

charges, the spillover effect of testimony the Government

offers against a co-defendant or the prospect of issues

implicating the holding of Bruton v. United States, 391

U.S. 123 (1968),7

 may warrant a severance. See Zafiro, 506

U.S. at 539.
10 Nos. 01-4120 & 02-1356

8 “Defenses are said to be mutually antagonistic when the

acceptance of one defense precludes any chance of acquittal for

the other defendant.” United States v. Dimas, 3 F.3d 1015, 1020

(7th Cir. 1993) (per curiam).

9 Specifically, Mr. Hughes’ counsel asserted that Mr. Bovey had

paid Mr. Hughes $500 in satisfaction of a debt and that Mr.

Hughes passed this money without knowing it was counterfeit. See Trial Tr. at 15-16.

(continued...)

However, to establish on appeal that severance ought

to have been granted, a defendant must demonstrate “that

the joint trial resulted in actual prejudice.” United States

v. Mohammad, 53 F.3d 1426, 1431 (7th Cir. 1995). “Actual

prejudice means that the defendant could not have a

fair trial without severance, not merely that a separate

trial would offer him a better chance of acquittal.” Id.

(internal quotations omitted). The fact that defenses are

mutually antagonistic8

 does not require severance in all

instances. “Mutually antagonistic defenses are not prejudicial per se.” Zafiro, 506 U.S. at 538.

The district court’s denial of the motion to sever was

not an abuse of discretion. Mr. Bovey has failed to demonstrate that the district court’s ruling compromised one

of his trial rights and actually prevented him from obtaining a fair trial. In his pretrial motion for severance, Mr.

Bovey noted that earlier motions filed on behalf of his codefendant, Mr. Hughes, indicated that Mr. Hughes’ defense would be that he received the counterfeit material

from Mr. Bovey and did not realize that the currency was

counterfeit. Moreover, during opening statement, Mr.

Hughes’ counsel undoubtedly attempted to shift culpability from his client to Mr. Bovey.9

 However, these actions
Nos. 01-4120 & 02-1356 11

9 (...continued)

Counsel for Mr. Hughes also elicited testimony from witnesses concerning Mr. Bovey’s role in an odometer tampering scheme. See infra II.B.2. However, it should be noted that

this testimony was elicited after Mr. Bovey moved for a severance. As a general rule, “review of the trial court’s exercise of

discretion in refusing a motion for severance must be based on

the state of the record at the time of the motion.” United States

v. Oglesby, 764 F.2d 1273, 1275 (7th Cir. 1985) (internal quotations omitted).

10 Furthermore, Mr. Bovey rests the brunt of his argument on

a misinterpretation of Oglesby. In Oglesby, this court noted that

severance may be warranted if “a co-defendant’s statement

inculpating the moving defendant” was introduced at trial.

Oglesby, 764 F.2d at 1276. However, based on the citation

following this statement, it is evident that the court was referring to Bruton type problems—a situation absent in the present case. Moreover, Mr. Hughes never testified in this case.

Mr. Bovey instead submits that the actions of Mr. Hughes’

counsel functioned as though Mr. “Hughes himself had testified.” Bovey Br. at 9. The record simply does not support such

a conclusory allegation.

cannot be said fairly to have compromised one of Mr.

Bovey’s trial rights. Mere “finger-pointing” at another

defendant, such as occurred here, is not sufficient to require severance. See United States v. Mietus, 237 F.3d 866,

874 (7th Cir. 2001); United States v. Goines, 988 F.2d 750,

781 (7th Cir. 1993). Moreover, Mr. Bovey’s counsel had

an opportunity to examine the witnesses who proffered

the accusatory testimony. Other than his conclusory allegations, Mr. Bovey has proffered no evidence that the

conduct of Mr. Hughes’ counsel actually prejudiced his

ability to obtain a fair trial.10 Mr. Bovey has not pointed

to any particular trial right that was compromised by the

refusal to sever. Nor can we discern any serious risk that
12 Nos. 01-4120 & 02-1356

the jury was prevented “from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539.

2.

Mr. Bovey further submits that the district court abused

its discretion in permitting the Government to present

evidence under Federal Rule of Evidence 404(b) concerning his involvement in an odometer tampering scheme

with Mr. Hughes.

Prior to trial, the Government served a timely notice of

its intent to offer evidence under Rule 404(b). The Government noted that it intended to introduce testimony

concerning the joint participation of Mr. Bovey and Mr.

Hughes in an odometer tampering scheme. Over Mr.

Bovey’s motion to exclude the testimony, the district court

allowed the Government to introduce this evidence to

demonstrate that Mr. Hughes and Mr. Bovey had a working relationship with one another.

Before us, he submits that the prejudicial impact of

this evidence far outweighed its probative value. In response, the Government emphasizes that this evidence

demonstrated that Mr. Hughes and Mr. Bovey, the alleged co-conspirators, enjoyed a working relationship.

In a criminal prosecution, the Government may not tender evidence of prior misconduct merely to demonstrate

“that a defendant has a propensity to commit crime and

that he acted in conformity with that propensity on the

occasion in question.” United States v. Best, 250 F.3d 1084,

1090 (7th Cir. 2001). However, it may present such evidence for other purposes such as to demonstrate “ ‘motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.’ ” United States v. Conley, 291
Nos. 01-4120 & 02-1356 13

11 Evidence is admissible under Rule 404(b) provided: (1) the

evidence is directed towards a matter other than the defendant’s propensity to commit the crime charged such as motive,

intent, plan, knowledge or identity; (2) the evidence is similar

enough and close enough in time to be relevant to the matter

in issue; (3) the evidence is sufficient to support a jury finding

that the defendant committed the similar acts; and (4) the

probative value is not substantially outweighed by the danger

of unfair prejudice. See United States v. Heath, 188 F.3d 916, 919

(7th Cir. 1999); United States v. Asher, 178 F.3d 486, 492 (7th

Cir. 1999). Mr. Bovey does not challenge the district court’s determination that prongs one through three have been satisfied

in this case.

F.3d 464, 472 (7th Cir. 2002) (quoting Fed. R. Evid. 404(b)).

Consequently, the central inquiry in cases involving admission of evidence under Rule 404(b) becomes whether

the material is “ ‘probative of a material issue other than

character.’ ” United States v. Heath, 188 F.3d 916, 920 (7th

Cir. 1999) (quoting Huddleston v. United States, 485 U.S. 681,

686 (1988)).

Although this court has adopted a four-prong test to

determine if evidence may be admitted properly under

Rule 404(b),11 the parties’ dispute concerns only the

fourth element of this inquiry: whether the probative

value of the material was substantially outweighed by the

danger of unfair prejudice. See Heath, 188 F.3d at 919;

United States v. Asher, 178 F.3d 486, 492 (7th Cir. 1999).

Under this inquiry, “ ‘the general rule is that the balance

should be struck in favor of admission.’ ” United States

v. Denberg, 212 F.3d 987, 993 (7th Cir. 2000) (quoting

United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980)).

Moreover, this court has stated that “evidence is unfairly

prejudicial only if it will ‘induce the jury to decide the

case on an improper basis, commonly an emotional one,
14 Nos. 01-4120 & 02-1356

rather than on the evidence presented.’ ” Conley, 291 F.3d

at 473 (quoting United States v. Pulido, 69 F.3d 192, 201 (7th

Cir. 1995)).

Although the issue is a relatively close one, we cannot

say that the district court abused its discretion in admitting the evidence. The disputed information was relevant

to the issue of whether Mr. Hughes and Mr. Bovey had

a working relationship prior to the commission of this

crime, a matter that might have been of some interest to

the jury in light of the finger-pointing that took place

between the defendants. Cf. United States v. Macias, 930

F.2d 567, 572 (7th Cir. 1991) (holding that Rule 404(b)

evidence is “highly probative to show the working relationship” between drug dealers). The introduction of this

evidence no doubt cast Mr. Bovey in an unflattering light.

However, odometer tampering does not carry with it

such a stigma that this material would provoke a jury to

convict based on emotion rather than on the evidence.

Moreover, when material concerning the odometer tampering was introduced at trial, the district court admonished the jury that it only could consider this evidence

for the limited purpose of determining whether there

was a working relationship between Mr. Hughes and Mr.

Bovey. Consequently, the district court did not abuse its

discretion in admitting this evidence under Rule 404(b).

Conclusion

The district court correctly determined that Count I of

the indictment was not duplicitous. The court also was

on solid ground when it denied the motion to sever. The

court did not abuse its discretion in permitting the introduction of the evidence of odometer tampering. Nor did

the court err in its application of § 2B.1(b)(2) of the Sentencing Guidelines.
Nos. 01-4120 & 02-1356 15

Accordingly, the judgments of the district court are

affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-13-02