United States v. Robert Keith Ross, United States of America v. Richard Kevin Silver
Docket: 87-5057
Court: Court of Appeals for the Fourth Circuit; April 15, 1988; Federal Appellate Court
The United States Court of Appeals for the Fourth Circuit addressed the case of United States v. Ross and Silver, where the defendants were charged with using a black and white photocopy of a one dollar bill to obtain coins from a change machine. The court considered whether such a photocopy constituted a "counterfeit obligation of the United States" under 18 U.S.C. §§ 471 and 472. The court concluded that the crude reproduction did not qualify as counterfeit, leading to the reversal of the appellants' convictions.
The appellants were apprehended during a stakeout while using the photocopy in Morganton, North Carolina. Ross faced several charges including making counterfeit obligations and uttering false obligations, while Silver was charged only with uttering and possession. They appealed the district court's refusal to grant their motions for judgment of acquittal, arguing that the jury was not properly instructed regarding the nature of counterfeit obligations.
Testimony from government witnesses established that the photocopies were clearly fake, with one officer noting he could identify the bills as non-genuine from a distance of 100 feet. Merchants also confirmed that no reasonable person would mistake the photocopies for real currency. The court referenced a precedent (United States v. Smith) which emphasized that for an item to be considered counterfeit, it must closely resemble genuine obligations, a standard that the photocopies did not meet.
No legal issues regarding the seizure of slips or required intent under the statute need to be addressed. The slips were discovered in Smith's car, alongside materials used for a confidence scheme involving the sale of a machine for profit. The Government's explanation details a process where genuine currency would be treated to create reversed impressions on blank paper, which would then be used to produce counterfeit bills. The evidence consists of two slips resembling $10 Federal Reserve Notes, displaying faint, backward representations of the currency without resembling a genuine obligation of the United States. They are deemed too crude to mislead anyone, lacking the quality necessary to be considered counterfeits legally. The statute in question penalizes possession of counterfeited obligations, not the means or acts of counterfeiting. Witness testimonies confirmed the slips were obviously fake, and no evidence suggests they deceived anyone into believing they were real currency. Consequently, the Government's argument that the jury should determine the resemblance to real bills lacks support, as no one was fooled by the copies, which are clearly counterfeit by any reasonable standard.
The approved definition of "counterfeit" is based on the Smith definition, with minor adjustments, aligning with Federal Jury Practice and Instructions. An item is deemed counterfeit if it closely resembles a genuine obligation issued by the United States, capable of deceiving an honest person. The government references United States v. Turner, which involved the use of photocopied bills under 18 U.S.C. Sec. 474; however, the court finds this case unpersuasive due to significant differences in statutory language between Sec. 474 and the other relevant sections, 471 and 472. The Turner court's focus on the "similitude" of the photocopies and their demonstrated effectiveness in deceiving change machines raises concerns since "dangerousness" is not a recognized factor in defining counterfeit. The court indicates that the photocopies in question do not meet the criteria for "counterfeit" but are akin to slugs used in vending machines. As a result, the appellants should not have been prosecuted under Sections 471 or 472, leaving the question of whether Section 491 is a lesser included offense unresolved. The ruling is reversed, affirming that while the photocopies cannot be classified as counterfeit, they can be likened to objects misused in vending operations.
