U.S. v. Leftenant

• Decision Date: 21 August 2003
• Docket Number: No. 02-4731.,02-4731.
• Citation: 341 F.3d 338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ashon LEFTENANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 338

341 F.3d 338

UNITED STATES of America, Plaintiff-Appellee, v. Ashon LEFTENANT, Defendant-Appellant.

No. 02-4731.

United States Court of Appeals, Fourth Circuit.

Argued: June 4, 2003.

Decided: August 21, 2003.

ARGUED:

Paul Geoffrey Gill, Assistant Federal Public Defender, Richmond, Virginia, for Appellant.

Sara Elizabeth Flannery, Assistant United States Attorney, Richmond, Virginia, for Appellee.

ON BRIEF:

Frank W. Dunham, Jr., Federal Public Defender, Richmond, Virginia, for Appellant.

Paul J. McNulty, United States Attorney, Richmond, Virginia, for Appellee.

Before WIDENER, WILKINSON, and KING, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge King wrote the opinion, in which Judge Widener and Judge Wilkinson joined.

OPINION

KING, Circuit Judge:

On May 29, 2002, Ashon Leftenant was convicted of six counts of possessing counterfeit obligations of the United States, in violation of 18 U.S.C. § 472. On appeal, he has raised several issues. First, he asserts that his indictment should have been dismissed because of a violation of the Speedy Trial Act. Second, he contends that the district court erred in admitting evidence of uncharged counterfeiting activity. Third, he insists that the evidence against him was insufficient to sustain his convictions. Finally, he maintains that the charges in the indictment were multiplicitous. As explained below, we reject his first three contentions. However, as the Government now concedes, Leftenant was erroneously convicted of six offenses when the evidence established only a single act of possession. Thus, we vacate all save one of Leftenant's convictions.

I.

A.

On October 13, 2001, police officers responded to a call from Loyce Bailey, the manager of a Hardee's restaurant on Temple Avenue in Colonial Heights, Virginia. Bailey reported that a black male wearing an Atlanta Falcons hat had attempted to pass a counterfeit twenty-dollar bill. After the bill reacted to a counterfeit detection pen used by one of the restaurant's employees, Bailey advised Freeman that Hardee's would not accept it. Freeman then took the bill and left the restaurant, but he remained in the Hardee's parking lot with some friends.

Three police officers responded separately to Bailey's call, arriving at the Hardee's within minutes of one another. The first to arrive, Officer Richard Wilson, approached a group of individuals who were standing in the Hardee's parking lot. The second to arrive, Officer Steve Hanson, went inside the restaurant and spoke to Bailey, who verified that the counterfeit bill had been returned to the suspect, and that it had a black "X" on it from the counterfeit detection pen.

By this point, a third police officer, Detective Steve Kolev, had arrived on the scene, and he had joined Officer Wilson in questioning individuals in the parking lot. William Freeman, an African-American male, was one of the individuals in the parking lot, and he was wearing an Atlanta Falcons hat. Because Freeman matched the description of the person who had attempted to use the counterfeit bill, Officer Wilson separated him from the group and patted him down for weapons. During the patdown search, Wilson discovered a roll of money in one of Freeman's pockets, including fifteen counterfeit bills. None of these bills, however, bore the incriminating black "X."

Officer Wilson arrested Freeman for possession of counterfeit bills and transported him to police headquarters. During the trip, Freeman advised Wilson that, after Bailey advised him that the bill he had tendered was counterfeit, he had ripped it up. Wilson promptly radioed that information to the officers at the Hardee's. Officer Hanson and Detective Kolev then searched the area surrounding the Hardee's restaurant for the remnants of the bill, but they did not find anything.

After their search, Detective Kolev ran record checks on the remaining individuals in the parking lot, and he discovered that one of them, Derrick Ward, was the subject of an outstanding arrest warrant in Pennsylvania. Kolev arrested Ward and placed him in a police cruiser. Ward advised the officers that he had driven to the Hardee's in his girlfriend's Range Rover, and that he did not want anyone else driving the vehicle, which remained parked in the Hardee's lot. The restaurant manager, Loyce Bailey, in turn, advised the officers that he wanted the Range Rover removed from the premises.

At some point, the officers asked Leftenant if he had the keys to the Range Rover, and Leftenant reached into his right-hand pocket to search for them. As Leftenant removed his hand from his pocket, a twenty-dollar bill fell to the ground. It was folded such that a black "X" was clearly visible. On seeing the twenty-dollar bill fall from his pocket, Leftenant appeared shocked. Officer Hanson promptly retrieved the bill and placed Leftenant under arrest. When the officers searched Leftenant incident to the arrest, they discovered ten additional counterfeit bills. Five of these counterfeits were twenty-dollar bills, and the other five were fifty-dollar bills.

B.

On November 13, 2001, criminal complaints were filed against Leftenant and Freeman in the Eastern District of Virginia, charging them with possession of counterfeit obligations of the United States, in violation of 18 U.S.C. § 470. On November 26, 2001, Leftenant and Freeman were arrested in connection with this charge. Two days later, on November 28th, the Government sought to amend the complaints to clarify that they intended to charge a violation of 18 U.S.C. § 472, rather than § 470, because § 470 applies only to acts committed outside the United States. After a detention hearing on November 28, 2001, and a bond reconsideration hearing conducted six days later, Leftenant was released on a personal recognizance bond on December 4, 2001.¹

Thereafter, on December 28, 2001, the Government gave Leftenant and Freeman the opportunity to plead guilty to a misdemeanor charge. On that date, the Government filed a criminal information in the district court, charging Leftenant and Freeman with a misdemeanor offense, namely, possession of paper similar in size and shape to lawful currency with the intent to use it fraudulently, in violation of 18 U.S.C. § 491(b). On January 17, 2002, Leftenant and Freeman were arraigned on this misdemeanor charge, and trial was scheduled for March 7, 2002. On January 22, 2002, Freeman pled guilty to the misdemeanor, and he was later sentenced to three years of probation.

After a breakdown in plea negotiations with Leftenant, however, the Government discontinued its effort to prosecute him on the misdemeanor charge, and it instead presented the grand jury with an indictment charging felony possession of counterfeit bills. In particular, the indictment charged Leftenant with violating 18 U.S.C. § 472. Because Leftenant possessed groups of bills with six separate and distinct serial numbers, the indictment charged six counts of felony possession. The grand jury returned the indictment on March 5, 2002, and a jury trial was scheduled for May 29, 2002.²

On March 15, 2002, Leftenant moved to dismiss the indictment, maintaining that it was filed more than thirty days after his arrest on November 26, 2001, a delay he asserted violated the Speedy Trial Act (the "STA"). See 18 U.S.C. § 3161(b). Leftenant also asserted that the six counts in the indictment were multiplicitous. The court denied the motion from the bench on May 8, 2002, United States v. Leftenant, Transcript of Motion Hearing, No. 3:02CR078, at 7-10 (E.D.Va. May 8, 2002), and it entered a corresponding order the following day, United States v. Leftenant, Order, No. 3:02CR078 (E.D.Va. May 9, 2002). Without addressing the multiplicity issue, the court concluded that the STA had not been violated, reasoning that: (1) the filing of the § 491(b) information satisfied the STA's requirements, and although the information had been filed late, Leftenant had waived any right to object to its timeliness; and (2) the STA was not, in any event, implicated by the filing of the indictment on March 5, 2002, because it charged a different offense than the criminal complaint.

On May 28, 2002, the day before his trial, Leftenant filed a motion in limine, asserting that the Government should not be permitted to introduce into evidence certain Secret Service records (the "Secret Service records"), which documented counterfeiting activity for the same serial numbers in the Virginia area before and after his arrest. Prior to trial, the court denied the motion. United States v. Leftenant, Transcript of Motion Hearing, No. 3:02CR078, at 5 (E.D.Va. May 29, 2002).

Following a one-day jury trial, conducted on May 29, 2002, Leftenant was convicted of all six counts. Thereafter, pursuant to Rules 29(c) and 33 of the Federal Rules of Criminal Procedure, he filed a motion for judgment of acquittal and a motion for a new trial. In support thereof, he contended that the evidence was insufficient to support his convictions; that the court should have dismissed the indictment pursuant to the STA; that the Secret Service records should not have been admitted against him; and that the six counts of the indictment were multiplicitous. After hearing argument on July 7, 2002, the court denied the motions. United States v. Leftenant, Transcript of Motion Hearing, No. 3:02CR78, at 8-11 (E.D.Va. July 7, 2002).³

On August 28, 2002, the district court sentenced Leftenant to six concurrent prison terms of twelve months each and to six concurrent terms of three years of supervised release. The court also imposed a $100 special assessment for each count. Leftenant has filed a timely appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court's interpretation of the STA, while we review any of the court's related factual findings for clear error. United States v. Stoudenmire, 74 F.3d 60, 63 (4th...