U.S. v. Moreno-Pulido

Citation695 F.2d 1141
Decision Date04 January 1983
Docket NumberMORENO-PULID,D,No. 82-1070X,82-1070X
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Joseph P. Russoniello, U.S. Atty., John C. Gibbons, Chief Asst. U.S. Atty., Crime Div., Patrick Coughlin, San Francisco, Cal., argued for plaintiff-appellee.

Richard M. Bryan, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, KENNEDY and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Appellant seeks reversal of his conviction on four counts relating to the manufacture and sale of counterfeit

Immigration and Naturalization Service Alien Registration Receipt Cards (green cards). For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On July 8, 1981, appellant Moreno-Pulido sold to a government informant a counterfeit green card incorporating a photograph and information supplied by agents of the Immigration and Naturalization Service. On September 3, 1981, and again on September 9, 1981, Moreno-Pulido sold twenty sheets of blank green card forms to the same informant.

On the basis of these transactions, Moreno-Pulido was indicted on four counts. Count One charged the sale of a counterfeit green card in violation of 18 U.S.C. Sec. 1426(b). Count Two charged the manufacture of the card in violation of 18 U.S.C. Sec. 1426(a). Counts Three and Four charged Moreno-Pulido with violating 18 U.S.C. Sec. 1426(b) by selling the blank sheets.

Moreno-Pulido was tried and convicted on all four counts in the trial court. Judgment was entered January 14, 1982, and defendant brings this appeal.

II. ISSUES

Moreno-Pulido brings three challenges to his conviction. His first and most substantial contention is that 18 U.S.C. Sec. 1426(b) does not cover the sale of uncut sheets of blank counterfeit green card forms. Second, Moreno-Pulido contests the sufficiency of the evidence to support his conviction on the manufacturing count. Third, Moreno-Pulido argues that the District Court's interruptions of defense counsel's final argument deprived him of a fair trial by unfairly discrediting the defense in the eyes of the jury. This opinion will address these contentions in order.

III. DISCUSSION
A. Is a Counterfeit Sheet of Blank Green Card Forms a

"Counterfeited Instrument [or] Paper" Under 18

U.S.C. Sec. 1426(b)?

18 U.S.C. Sec. 1426(b) applies criminal penalties to whoever sells any "counterfeited ... instrument [or] paper ... authorized by any law relating to naturalization or citizenship or registry of aliens ...." 1 Moreno-Pulido was convicted of violating this section by selling blank counterfeited green card forms in uncut sheets. Appellant argues that evidence of the sale of blank sheets of forms was insufficient as a matter of law to sustain his conviction because such sheets are not "counterfeited instruments [or] paper." Since this is a pure question of law, we review de novo the trial court's determination that such a conviction was proper. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978).

A completed green card "is a paper authorized by law relating to the registry of aliens within 18 U.S.C. Sec. 1426(a)," and therefore presumably within Sec. 1426(b). United States v. Castillo-Felix, 539 F.2d 9 (9th Cir.1976). The cards sold in this case differ from completed green cards in various ways: first, the six forms printed on each sheet have not been cut apart; second, they have not undergone the procedures necessary to convert a blank form into a useful facsimile of a completed green card--they have not been filled out with identifying information, signed, affixed with a photograph, or laminated. Appellant argues that blank green card forms do not come under the statute because further steps are required before they can serve their ultimate purpose. This fact is not determinative. To allow someone to evade the statute by selling the forms without completing them would establish a loophole the statute's drafters never intended. The record indicates that once a blank document is printed, converting it into a completed Appellant would have the courts test the sale of blank uncut forms by whether they bear sufficient resemblance to a green card to pass as genuine, a standard they obviously do not satisfy. 2 This position relies on a widely enunciated standard for the quality of reproduction of counterfeited currency under 18 U.S.C. Sec. 472:

green card requires only simple equipment in common use. A blank green card form is unalterably dedicated to use as a counterfeit. In convicting someone of counterfeiting the form, there is no danger of punishing someone who did not have the intention of making or contributing to the making of a deceptively false green card as there might be, for example, in a case of the sale of paper closely resembling official green card stock. In fact, the possession of a blank green card form without lawful authority is specifically prohibited by 18 U.S.C. Sec. 1426(f).

[T]he 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.

United States v. Lustig, 159 F.2d 798, 802 (3rd Cir.1947), rev'd on other grounds, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); accord, United States v. Grismore, 546 F.2d 844 (10th Cir.1976) (jury instruction based on Lustig proper regarding cut sheets of counterfeit bills); United States v. Chodor, 479 F.2d 661, 664 (1st Cir.), cert. denied 414 U.S. 912, 94 S.Ct. 254, 38 L.Ed.2d 151 (1973) (jury instruction based on Lustig was proper regarding bills lacking two serial numbers and the Treasury Seal); United States v. Smith, 318 F.2d 94 (4th Cir.1963) (faint reverse images on paper too "crude" to be counterfeit).

Appellant's proposed standard would be improper in this case for two reasons. First, completeness in a green card is a more complex issue than completeness in counterfeit currency. An item of currency enables a holder to receive value in exchange. A green card is more like a government check or a U.S. savings bond. Such certificates may need signatures, filled-in blanks or other steps before they can serve their purpose, but a counterfeited check or bond would appear to be a counterfeit before the required information and signatures are included. 3

Second, the proposed test has been applied in currency cases to test the quality of a counterfeit, not its completeness. There is little in the cases appellant relies on to indicate that the counterfeit label cannot be applied to an incomplete facsimile of a government instrument. United States v. Lustig, 159 F.2d 798, 802 (3d Cir.1947), rev'd on other grounds, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), upheld a jury finding that three reverse impressions were "counterfeit obligations." 4 Three Court of Appeals cases have held that sheets of good quality counterfeit bills need not be cut Defendant's position, in a nutshell, on this appeal is that a jury could not find that he was "in possession ... [of a] counterfeited ... obligation ... of the United States" (18 U.S.C. Sec. 472) because the $10.00 notes, complete in every other respect, had been printed, and still remained, in sheets of six. We may agree that if the paper was unfinished in any significant particular, it was not yet a counterfeit. The jury was warranted in finding, however, that a snip with a pair of shears was too inconsequential a matter to consider significant. The paper was as readily available as it would have been had it been cut, and then tied in a package. Defendant's point that any purchaser of the uncut sheets would have necessarily known they were not genuine is irrelevant. An illegal sale does not require the purchaser to be duped.

                apart for the bills to be counterfeit.   United States v. Moran, 470 F.2d 742 (1st Cir.1972), presents compelling reasoning that applies equally well to the case at bar
                

Id. at 743; accord, United States v. Chodor, 479 F.2d 661, 664 (1st Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 254, 38 L.Ed.2d 151 (1973); United States v. Brunson, 657 F.2d 110, 113 (7th Cir.), cert. denied, 454 U.S. 1151, 102 S.Ct. 1016, 71 L.Ed.2d 306 (1981). 5

These cases demonstrate that the Lustig test has never been applied as literally as appellant would have it applied here. 6 We therefore hold that a blank green card form can be an "instrument [or] paper ... authorized by ... law relating to naturalization or citizenship or registry of aliens ...," as that phrase is used in 18 U.S.C. Sec. 1426(b). 7 The jury was properly instructed that it could find a violation of that section in the sale of the sheets. Accordingly, we affirm Moreno-Pulido's conviction on Counts Three and Four.

B. Sufficiency of Evidence on Count Two--Making a Green Card

Appellant disputes that there was sufficient evidence to support his conviction under 18 U.S.C. Sec. 1426(a) for making a green card. The jury verdict is reviewable under the familiar "substantial evidence" test: "The conviction must be affirmed if reasonable and prudent persons could have concluded that the evidence, taken in the light most favorable to the Government, warranted a finding of guilt beyond a reasonable doubt." United States v. Kipp, 624 F.2d 84, 84-85 (9th Cir.1980) (citations omitted). The government's evidence should be There is evidence in the record that Moreno-Pulido delivered a completed counterfeit green card to the informant within twenty minutes of the time the informant made the request and provided the photograph and information. A search of Moreno-Pulido's bedroom disclosed all of...

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