                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              November 9, 2007
                              No. 07-10833                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 06-60155-CR-WPD

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

FERDINAND EDOUARD,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                            (November 9, 2007)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

     Ferdinand Edouard (“Edouard”) appeals his conviction and 18-month
sentence for possessing, passing, and uttering counterfeit currency in violation of

18 U.S.C. § 472. For the reasons discussed below, we affirm.

                                   I. Background

      At trial, Alimudden Ishmael testified that he is the owner of a gas station and

convenience store in Florida. On May 23, 2006, Edouard drove to the store on a

bicycle and had a large box with him. He left the bike outside the store, leaving

the box, and attempted to purchase an iced tea costing $1.05 with a $50 bill. When

Ishmael marked the bill to detect if it was genuine currency, he discovered that it

was not. He then told Edouard that he could not accept the note but Edouard

insisted that Ishmael provide change. Ishmael then left Edouard with another

employee and called the police.

      When the police arrived, Officer Hernandez examined the $50 bill and the

box. He asked Edouard where he got the note and Edouard told him that he found

it at the “corner of southwest 11th Street and 441.” Hernandez asked Edouard if he

found any more money and Edouard showed him his wallet. Inside the wallet was

a “bunch of bills,” separated into two separate compartments. Inside one

compartment was $4,113 in counterfeit bills (in a mixture of $1, $20, $50, and

$100 notes) and, inside the other, there was $31 in genuine currency.

      Police Officer Berryman also asked Edouard where he got the money; he



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told Berryman that he found it “around the street in North Lauderdale on State

Road 7 on the corner.”

      The box that Edouard had with him at the store was taped up, but was

previously opened, and contained a Hewlett Packard printer. Secret Service Agent

Pagano testified at trial that the ink in the printer was consistent with the ink on the

bills, though she could not say for sure whether the printer was used to print the

bills. When asked whether a certain degree of skill was required to make the

printer produce counterfeit money, she testified that all that was needed was the

printer and “a finger to push a button.”

      Secret Service Special Agent Bruno testified that Edouard indicated that he

found the money in a bag on Oakland Park Boulevard and that he was attempting

to exchange the large denomination bills for smaller denomination bills by

purchasing small items with large bills and receiving the change. Bruno noticed

that one of the genuine $1 bills was marked by an ink pen and eight counterfeit

bills bore the same ink mark.

      When Edouard testified, he stated that he found the money in a plastic bag in

the area of “55th or 56th" on Oakland Park Boulevard but that he did not remember

what time of day he found it. He also claimed that he purchased the printer for the

purpose of sending it to family in his native Haiti but that the machine was



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malfunctioning; as a result, he was on his way to return it when he was arrested.

      Edouard moved for acquittal on the basis of insufficient evidence both at the

close of the prosecution’s case and at the close of his own case. The judge denied

the motion on both occasions.

      During the prosecutor’s closing statement, Edouard stood up and declared

that he wanted to talk to the jury “and explain to them what really happened.” The

judge then excused the jury from the room and a conversation ensued in which

Edouard stated that he would like to represent himself pro se. The judge denied the

motion as untimely and because the judge thought that Edouard would only hurt

his case. The jury then convicted Edouard.

      Following the conviction, the judge ordered a Pre-sentence Investigation

Report (“PSIR”). The PSIR found a base offense level of 9, a special offense

characteristic increase of one level in accordance with U.S.S.G. § 2B5.1(b)(1)(A)

because the face value of the counterfeit money exceeded $2,000 but did not

exceed $5,000, and a two-level increase in accordance with U.S.S.G. § 3C1.1 for

obstruction of justice. Thus, the final adjusted offense level was 12. Edouard’s

criminal history category was II.

      The probation officer determined the obstruction of justice was proper

because Edouard failed to appear for a judicial proceeding while out on bond and



                                          4
failed to supply his Pretrial Services Officer with a legitimate address. Edouard

objected to the PSIR’s obstruction of justice enhancement on the ground that those

facts were not submitted to the jury and proved beyond a reasonable doubt and

that, because of this, the enhancement violated Booker.1 Edouard did not dispute

that he failed to appear or that he provided a false address to the Pretrial Services

Officer. The PSIR concluded that the applicable guidelines range was 12-18

months.

      At sentencing, the district judge overruled Edouard’s objection to the

obstruction of justice enhancement and sentenced him to 18 months imprisonment.

      On appeal, Edouard argues that (1) the evidence was insufficient to support

his conviction, (2) the district court erred by refusing to permit him to represent

himself pro se, and that (3) the district court erred in enhancing his sentence based

upon facts that were not submitted to the jury or proved beyond a reasonable doubt

in violation of Booker.

                                  II. Standard of Review

      An insufficiency of the evidence claim is reviewed de novo. United States

v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). We review the denial of a

defendant’s request to proceed pro se under the abuse of discretion standard if the


      1
          U.S. v. Booker, 543 U.S. 220 (2005).


                                                 5
request was made after the trial began. See United States v. Teague, 953 F.2d

1525, 1539-40 (11th Cir. 1992). We review preserved claims of constitutional

error under Booker de novo, and will reverse the district court only if the error was

harmful. United States v. Cain, 433 F.3d 1345, 1347 (11th Cir. 2005).

                                   III. Discussion

      We will address each of Edouard’s claims in turn.

a. Insufficient Evidence

      Edouard claims that insufficient evidence existed for his conviction.

Specifically, he argues that the evidence failed to establish beyond a reasonable

doubt that he intended to defraud with the counterfeit currency and that,

accordingly, the judge erred by denying the motion for acquittal.

      To establish a violation of 18 U.S.C. § 472, the government had to prove

that Edouard passed or possessed counterfeit currency with the intent to defraud.

United States v. Guida, 792 1087, 1095 (11th Cir. 1986). To prove intent, the

government had to show that Edouard knew the notes were counterfeit. Id. This

“guilty knowledge” may be inferred from circumstantial evidence, and surrounding

circumstances may supply inferences of knowledge which adequately prove intent.

Id. One such circumstance is the segregation of counterfeit notes from genuine

currency. United States v. Perez, 698 F.2d 1168, 1171 (11th Cir. 1983).



                                          6
      In this case, the counterfeit notes were separated from the genuine notes in

Edouard’s wallet. Had Edouard possessed only two or three bills, such a fact could

be merely coincidence. But here, one compartment of the wallet contained $4,113

in counterfeit bills (in a mixture of $1, $20, $50, and $100 notes) while the other

contained $31 in genuine currency.

      Further, one of the genuine $1 bills appeared to be marked by an ink pen.

Eight of the counterfeit $1 bills bore the same ink mark. These facts, combined

with the facts that Edouard had the printer, that the printer’s ink was consistent

with the ink on the notes, that he insisted that Ishmael give him change from the

$50 counterfeit bill, that he was attempting to “break” the larger bills into smaller

bills by making small purchases, and that Edouard’s story as to how he came into

possession of the bills was vague and inconsistent, all support the jury’s finding

that Edouard intended to defraud. Sufficient evidence, therefore, existed to convict

Edouard and the judge did not err by denying the motion for acquittal.

b. Pro Se

      Edouard contends that the district court erred by denying his request to

proceed pro se. Although Edouard had appointed counsel, he first alerted the court

that he would like to proceed pro se after the government began its closing

statement. The district court denied the request in part because it was untimely.



                                           7
      The Sixth Amendment guarantees a defendant the right to represent himself.

Faretta v. California, 422 U.S. 806, 817-18 (1975). But the request to proceed pro

se must be timely. Such a request cannot come after the selection of the jury.

United States v. Young, 287 F.3d 1352 (11th Cir. 2002). Because Edouard

requested to proceed pro se well after the selection of the jury, the district court did

not err in denying the request.

c. Enhancement for obstruction of justice

      Edouard also argues that the district court erred by enhancing his sentence

by two points for obstruction of justice. He notes that the probation officer wrote

in the PSIR that Edouard deserved a two-point enhancement because he obstructed

justice by failing to attend a judicial proceeding and by failing to provide a

legitimate address to his Pretrial Services Officer. Edouard claims that because a

jury did not hear these facts and find beyond a reasonable doubt that Edouard

obstructed justice that the judge committed error under Booker.

      The district judge sentenced Edouard at the top of the 12-18 month range.

Under Booker, an enhancement based on facts found by the judge that were neither

admitted by the defendant or found by the jury violates the defendant’s Sixth

Amendment right to a trial by jury if the guideline system is mandatory. See U.S.

v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007). Here, Edouard did not dispute the



                                            8
facts in the PSIR which led to the enhancement (that he failed to appear at a

judicial proceeding and failed to provide a legitimate address to his Pretrial

Services Officer). Facts in the PSIR that are uncontested are deemed admitted for

sentencing purposes. U.S. v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).

Because he admitted these facts, there was no Booker violation. Accordingly, the

district court did not err.

                                   IV. Conclusion

       For the reasons above, we AFFIRM.




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