Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1989)

MEMORANDUM^** 

Jeffrey Huck appeals his conviction and sentence following a jury trial for uttering counterfeit obligations, in violation of 18 U.S.C. § 472, and aiding and abetting, in violation 18 U.S.C. § 2. Huck contends that: (1) the counterfeit one hundred dollar bills he uttered did not sufficiently resemble genuine one hundred dollar bills to constitute counterfeit obligations of the United States under 18 U.S.C. § 472; (2) the district court erred in admitting testimony of threats he made to witnesses; and (3) he should be resentenced under the Federal Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part and vacate and remand in part.

* Huck contends that the altered one dollar bills he was convicted of uttering did not sufficiently resemble genuine one hundred dollar bills to constitute counterfeit obligations of the United States under 18 U.S.C. § 472. This contention lacks merit.

To sustain a conviction under 18 U.S.C. § 472, the counterfeit bills must "bear such a likeness or resemblance to genuine currency '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. Johnson, 434 F.2d 827, 829 (9th Cir. 1970) (quoting United States v. Weber, 210 F. 973, 976 (W.D. Wash. 1913)).

Here, the counterfeit bills used by Huck were one dollar bills, with the four corners of a genuine one hundred dollar bill pasted on the front corners. The center of the one dollar bill, with the picture of George Washington, and the back of the bill were unchanged. Huck successfully used these altered bills on three occasions; on one occasion the recipient noticed immediately that the purported one hundred dollar bill was not genuine. "While [the altered bills] certainly are not good counterfeits, they are unquestionably imitations of genuine bills which resemble genuine bills and which might, under favorable circumstances, be uttered and accepted as genuine." Johnson, 434 F.2d at 829. Indeed, the counterfeit bills were accepted by three salespersons. Therefore, the altered one dollar bills constitute counterfeit obligations of the United States under 18 U.S.C. § 472 because they bore sufficient resemblance to genuine currency to deceive an unsuspecting person. See Johnson, 434 F.2d at 829.

II

Huck contends that the district court abused its discretion by admitting testimony that he threatened several witnesses. Huck argues that this evidence was unduly prejudicial and should have been excluded under Fed.R.Evid. 403. Huck further argues that the threats were not admissible under Fed.R.Evid. 404(b) because they did not constitute evidence of "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." This contention lacks merit.

"Evidence demonstrating a defendant's consciousness of guilt is admissible under Fed.R.Evid. 404(b) if the court determines that the evidence is more probative than prejudicial under Fed.R.Evid. 403. Evidence of threats by a defendant against a potential witness against him can, if this balancing test is met, be used to show guilty knowledge." United States v. Bein, 728 F.2d 107, 114-15 (2d Cir.) (citations omitted), cert. denied sub. nom., DeAngelis v. United States, 469 U.S. 837 (1984).¹  Under Fed.R.Evid. 403:

Unfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.

United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982) (emphasis in original) (citations omitted).

Here, the district court admitted testimony that after Huck had passed a counterfeit one hundred dollar bill in a bar, the manager chased him into the parking lot. While waiting for the police to arrive, Huck said to the manager: "you will never forget me" and "I will get you." Huck later told a Secret Service agent investigating this incident that he would not have to worry about the bartender or the manager "showing up in court to testify against him, that he would take care of them." Finally, while attempting to retrieve a counterfeit bill he had passed in another bar, Huck said to an employee, "I've got an Uzi for you."

The district court did not abuse its discretion in admitting these threats because they were probative of Huck's consciousness of guilt. This evidence was relevant to refute the defense argument that Huck was not the person who had passed the counterfeit one hundred dollar bills. See Bein, 728 F.2d at 114-15. Furthermore, the prejudicial impact of the testimony did not outweigh its probative value because the threats were not excessively inflammatory or likely to provoke an emotional response in the jury, and the testimony concerning the threats was brief. See White, 794 F.2d at 371; Bailleaux, 685 F.2d at 1111.

III

Huck was convicted of crimes committed after November 1, 1987, and therefore was subject to sentencing under the Sentencing Reform Act of 1984 and the Federal Sentencing Guidelines. Before Huck was sentenced, however, this court held the Sentencing Reform Act and the guidelines to be unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). The district court therefore sentenced Huck under pre-guideline standards to fifteen years imprisonment and imposed a special assessment fee of $200. On January 18, 1989, the Supreme Court upheld the constitutionality of the Sentencing Reform Act and the guidelines. Mistretta v. United States, --- U.S. ----, 109 S. Ct. 647 (1989). Furthermore, this court has held 18 U.S.C. § 3013, the statute authorizing imposition of a special assessment fee, to be unconstitutional. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989).

Therefore, we vacate the sentence imposed by the district court and remand for resentencing under the guidelines and the holding in Munoz-Flores. See United States v. Kane, 876 F.2d 734, 738 (9th Cir.), cert. denied, 110 S. Ct. 173 (1989).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.