U.S. v. Pervaz

• Decision Date: 03 March 1997
• Docket Number: 96-1536,Nos. 96-1535,s. 96-1535
• Citation: 118 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Tariq PERVAZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jimmie ALZAMORA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

118 F.3d 1

UNITED STATES of America, Appellee, v. Tariq PERVAZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jimmie ALZAMORA, Defendant, Appellant.

Nos. 96-1535, 96-1536.

United States Court of Appeals First Circuit.

Heard March 3, 1997.

Decided June 24, 1997.

William J. Murphy, Providence, RI, for appellant Tariq Pervaz, Thomas G. Briody, Providence, RI, for appellant Jimmie Alzamora.

Sheldon Whitehouse, United States Attorney, Providence, RI, with whom Andrew J. Reich, Assistant United States Attorney, was on brief for appellee.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendants/Appellants Jimmie Alzamora and Tariq Pervaz were indicted and charged with seven counts of fraud and related activities involving access devices to telephone calls transmitted by cellular phones, in violation of 18 U.S.C. §§ 1029(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), and § 1029(b)(2) (conspiracy to commit offenses).

There was a hearing in the district court on a motion to suppress filed by Alzamora and Pervaz. The suppression motion was denied. Alzamora and Pervaz entered conditional pleas of guilty to all seven counts of the indictment, reserving their right to appeal the district court's denial of the suppression motion.

Alzamora was sentenced to fourteen months imprisonment and ordered to pay restitution in the amount of $190,275.33. Pervaz was sentenced to eighteen months imprisonment and ordered to pay restitution in the same amount as Alzamora--$190,275.33. Both defendants appeal their convictions and the restitution order. Pervaz has not filed a brief on appeal; he has chosen to rely on the brief filed by his co-defendant Alzamora. Except as noted otherwise, we treat both defendants as one in this opinion.

STANDARD OF REVIEW

The applicable standard of review has been set forth in detail in Ornelas v. United States, --- U.S. ----, ---- - ----, 116 S.Ct. 1657, 1661-63, 134 L.Ed.2d 911 (1996). We condensed that teaching in the recent case of United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997):

In reviewing a denial of a suppression motion, the district court's ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review. See Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996); United States v. Zayas-Diaz, 95 F.3d 105, 111 n. 6 (1st Cir.1996). The district court's findings (if any) of historical facts--"the events which occurred leading up to the ... search," Ornelas, --- U.S. at ----, 116 S.Ct. at 1661--must be upheld unless they are clearly erroneous. See id. at ----, 116 S.Ct. at 1663; Zayas-Diaz, 95 F.3d at 111 n. 6. A reviewing court must "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, --- U.S. at ----, 116 S.Ct. at 1663. But "the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause" is a mixed question of law and fact which we review de novo. Id. at ---- - ----, 116 S.Ct. at 1661-63.

THE FACTS

A) Background

Defendants were convicted of taking part in a telephone "cloning" operation. Some background information is necessary. Cellular phones transmit messages by radio Cellular telephone subscribers are assigned a combination of an MIN and an ESN to access cellular service. The MIN/ESN combination number also is used by the carrier for billing its cellular phone subscribers. The MIN/ESN access combination is programmed on "Erasable Programmable Read Only Memory" (EPROM) located on a computer chip which is part of the circuitry of the telephone.

waves, not wires. Telephone companies, e.g., AT & T, Sprint, and MCI, offer their customers the use of an access device number called a mobile identification number (MIN), which allows customers to make and receive both local and long distance telephone calls through their cellular telephone carriers, e.g., Cellular One, Mobile Communications, SNET, and COMCAST. Cellular telephone customers are also assigned Electronic Serial Numbers (ESN) for their phones. Both MINs and ESNs are access devices within the meaning of the statute, 18 U.S.C. § 1029(e)(1).

A cellular telephone "cloning" operation is a scheme to defraud in which MIN/ESN combinations issued to subscribers are stolen and reprogrammed on a nonsubscriber's cellular telephone so as to obtain use of the subscriber's account. The cloning is accomplished by attaching the nonsubscriber's cellular phone to a personal computer through a specially designed interface cable. The cable, used with customized cloning software, gains access to the "EPROM" computer chip and the stolen MIN/ESN number is programmed onto the computer chip in the nonsubscriber's cellular phone. Customers pay those running the fraudulent scheme a fee to use the stolen MIN/ESN numbers to make local, long distance or international phone calls which are billed to the stolen account. The fee is, of course, less than the regular rates. The subscriber does not know that his access number is being used by others until he gets his telephone bill.

B) Suppression Hearing Evidence

At the outset of our rehearsal of the evidence adduced at the suppression hearing, we caution the reader that the dates of conversations and events are an important factor in our determination whether the employees of Cellular One of Boston (COB) were acting as government agents. The case, for our purposes, begins on September 13, 1995, when employees of Southern New England Telephone Company (SNET) and Cellular One of Rhode Island (CORI) informed the U.S. Secret Service that a disproportionately large number of international telephone calls were being made from a cellular phone (or phones) located in Cranston, Rhode Island.

The Secret Service, through Special Agent James Barnard, called CORI the next day (September 14) for further information and talked to Dan Mott, a service technician. Mott told Barnard that a number of the international calls had been made with MINs which were not in the calling area to which the MINs were ordinarily designated. Barnard was further informed by Mott that the calls were being made through one cellular phone location. Barnard asked if Mott had any equipment that could pinpoint the exact site of the calls; Mott said that he did not have such equipment.

On September 14, 1995, Barnard called the Secret Service Office in Boston and inquired whether it had any site-location equipment. He was told that it did have such equipment but that it was not available. Barnard was also told that COB might be able to help him.

Barnard called COB later the same day (September 14) and talked to Ron Anderson. He explained the situation and asked if COB had equipment that could locate the source of the cloned calls. Barnard advised Anderson that COB customers were among those being defrauded by the cloning operation. Anderson told Barnard that COB had equipment that would help locate the exact source of the calls, but that he would have to check with COB's legal department to see whether the equipment could be used in Rhode Island. After being told by Anderson that COB's customers were being defrauded, COB's legal department advised Anderson that the tracking equipment could be used in Rhode Island. Instead of calling Barnard back as promised, Anderson and two other COB employees went to Cranston, Rhode Island, the afternoon of September 14 in a van carrying the tracking equipment.

The frequencies used to make the international calls were obtained by Anderson from SNET. Using these frequencies, Anderson and his crew proceeded in the van to the general source area of the calls. The tracking equipment was then put into operation. Anderson and the two other men (Dan Valios and Rick Wade) monitored the frequency of the cellular phone calls and also listened to telephone conversations. Wade testified that they could have determined the source of the phone calls without listening to the phone conversations, but that the audio interception established that the tracking equipment was working properly. He also testified that the intercepted conversations were not in English and that none of those in the van understood what was being said. After driving around Cranston for about half an hour, the tracking equipment pointed to two adjacent houses as the probable source site. Wade got out of the van and using a hand-tracking device pinpointed the source of the calls as the left side of the first floor of a multi-family dwelling with the address of 156-158 Woodbine Street.

Anderson called Agent Barnard after the source phone site had been pinpointed and informed Barnard of what had been done. The following day, September 15, Barnard applied for and obtained a warrant to search the apartment on the left side of the building at 156 Woodbine Street, Cranston, Rhode Island. The warrant was executed on September 15. Federal agents arrested defendants on the premises and seized a number of cellular telephones, computer equipment and other evidence of the cloning operation.

THE ISSUES

Before we address the main issues--whether COB's employees were acting as government agents, and the legality of the search warrant--we consider two issues raised by the government. The first is the government's argument, not raised in the district court, that because neither defendant had a privacy interest in the apartment searched, neither had standing to challenge the legality of the warrant. The government argues that it had no duty to assert a lack of privacy interest below because defendants had the burden of proving it. We are reluctant to allow the government to trap an unwary defendant by raising a lack of privacy interest for the first time on appeal unless it is absolutely clear...