U.S. v. Sepulveda

Decision Date20 June 1997
Docket NumberNo. 95-4769,95-4769
Citation115 F.3d 882
Parties11 Fla. L. Weekly Fed. C 70 UNITED STATES of America, Plaintiff-Appellee, v. Alice SEPULVEDA and Placido Mendez, Defendants-Appellants
CourtU.S. Court of Appeals — Eleventh Circuit

Alan S. Ross, Benjamin S. Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, FL, for defendants-appellants.

Kendall Coffey, U.S. Atty., Linda Collins Hertz, Kathleen M. Salyer, Eduardo I. Sanchez, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL *, Senior District Judge.

THOMAS N. O'NEILL, Senior District Judge:

Appellants Alice Sepulveda and Placido Mendez were convicted of possessing and conspiring to possess, with intent to defraud, fifteen or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). Their convictions rested on evidence that they possessed fourteen "cloned" cellular telephones programmed to charge unauthorized calls to subscribers' accounts and four unprogrammed numerical combinations corresponding to additional accounts. Appellants contend that they are entitled to acquittal because the unprogrammed combinations are not additional access devices that can be added to the fourteen cloned telephones to establish the fifteen or more access devices required for conviction. We find that the unprogrammed combinations constitute access devices within the meaning of § 1029. We therefore affirm the judgments of conviction.

Appellants also challenge the increased sentences they received based on the district court's determination that their conduct caused losses of $42,124.32. Because we conclude that uncertainties in the loss analysis precluded a finding by a preponderance of the evidence that the losses exceeded $40,000 as required by United States Sentencing Guidelines § 2F1.1(b)(1)(F), we reverse the district court's application of that provision and remand for resentencing.

I.

Federal agents arrested appellants on June 2, 1994 after executing a search warrant at a clothing store where, it was established at trial, appellants operated a "call sell" service using "cloned" cellular telephones. Store clerks would escort a customer to one of several dressing rooms that served as telephone booths, dial the requested number, hand the customer a cellular telephone, and charge the customer by the minute for the call. Upon searching the clothing store the agents seized fourteen cellular telephones 1 and ledgers listing hundreds of callers' names and the locations they had called. A customer of the call sell service testified that she placed calls from appellants' store two to three times per week between January and May, 1994 and that each time there were "many people waiting" to place calls.

Experts testified that a cellular telephone, when dialed, emits both an eight-digit Electronic Serial Number, or ESN, and a ten-digit Mobile Identification Number, or MIN, both of which are stored on the cellular telephone's internal microchip. 2 Emission of the ESN-MIN combination ("ESN-MIN") results in charges against the subscriber account bearing the same numbers. "Cloning" involves reprogramming the microchip to emit an illegitimately obtained ESN-MIN and thus to charge unauthorized calls to the corresponding account. 3 The procedure requires a personal computer, specialized software and cables connected to the telephone's microchip. In a process that takes approximately thirty seconds to three minutes the ESN-MIN is typed into the computer which then transcribes the numbers to the microchip. Thereafter the telephone emits the unauthorized ESN-MIN and illicitly charges the unsuspecting subscriber each time it is dialed. By using a device that "reads" a telephone's ESN-MIN emissions and comparing those emissions to cellular telephone company records the government established that the telephones seized from appellants were cloned.

In addition to the fourteen cloned cellular telephones, the agents seized a piece of paper bearing four handwritten ESN-MIN combinations which corresponded to four additional subscribers' accounts. 4 A government witness testified that until transcribed by a computer to a microchip such unprogrammed combinations could not be used to place calls. No such computer or other cloning equipment was found at appellants' store. Testimony from cellular telephone company representatives established that some of the unprogrammed ESN-MINs had in fact been used to place unauthorized calls.

Appellants, emphasizing that the handwritten ESN-MINs in their unprogrammed form were incapable of obtaining access to cellular telephone accounts, moved for acquittal on the grounds that the evidence failed to establish the requisite fifteenth access device. The district court denied the motions and the jury returned verdicts of guilt. After their post-trial motions were denied appellants appealed. We review the district court's denial of a motion for judgment of acquittal de novo. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989).

II.

Appellants were convicted of violating and conspiring to violate 18 U.S.C. § 1029(a)(3), which proscribes possession, with intent to defraud, of "fifteen or more ... counterfeit or unauthorized access devices." § 1029(a)(3). An access device is defined as "any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value...." § 1029(e)(1). 5

Appellants do not dispute that their possession of fourteen cloned telephones programmed for immediate transmission of unauthorized ESN-MINs established possession of fourteen unauthorized access devices. Appellants contend, however, that the four unprogrammed ESN-MINs are not additional access devices because they must be transcribed through a computer before being transmitted to place cellular telephone calls. According to appellants, the need for the computer precludes a finding that the unprogrammed ESN-MINs "can be used ... in conjunction with another access device" to obtain cellular telephone service, both because the computer is not an access device and because no such computer was found in appellants' possession. 6

A.

The ESN-MINs, which are account-identifying information like the "codes" and "account numbers" enumerated in § 1029(e)(1), constitute a "means of account access" under § 1029(e)(1). 7 Similarly, cellular telephone microchips, which serve as a medium for storing and transmitting this account information, are sufficiently analogous to the "cards" and "plates" used to store and convey other types of account information to constitute another "means of account access" under § 1029(e)(1). 8 While it is undisputed that the ESN-MINs, once programmed onto microchips, can be used in conjunction with microchips to obtain cellular telephone services, appellants contend that because such ESN-MINs must be used in conjunction with a computer, which is not an access device, they cannot be used in conjunction with another access device within the meaning of § 1029. Appellants' argument misconstrues the plain statutory language.

The statute does not define the concept of use in conjunction with another access device. Terms that are not statutorily defined are ascribed their "ordinary or natural meaning." National Coal Ass'n v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996) (per curiam) (citing Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994)); United States v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992). 9 The statutory definition of access device extends to "any" means of account access that "can be used ... in conjunction" with another access device to obtain goods or services. The ordinary and natural meaning of this language includes any means of account access that can be brought together with another access device and used in combination therewith for the common purpose of obtaining goods or services. See WEBSTER'S THIRD INTERNATIONAL DICTIONARY 479 (15th ed. 1968) (defining "conjunction" as a "state of being conjoined," which is in turn defined as "joined together for a common purpose or a common end").

Thus the plain statutory language requires only that a means of access be able to be combined with and used together with another access device to obtain services. Under this language the use of an additional item which is not itself an access device to bring two items together or to facilitate their use in conjunction with one another does not preclude a finding that the two items can be used in conjunction with one another to obtain goods or services.

We " 'must give effect to this plain language unless there is good reason to believe Congress intended the language to have some more restrictive meaning.' " McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073 (11th Cir.1996) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)), cert. denied, --- U.S. ----, 117 S.Ct. 1819, 137 L.Ed.2d 1028 (1997). We find no reason to believe Congress intended a more restrictive meaning than the plain language of § 1029 denotes. 10 While criminal statutes must be strictly construed, this canon "is not an inexorable command to override common sense and evident statutory purpose.... Nor does it demand that a statute be given the 'narrowest meaning;' it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers." United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 347, 46 L.Ed.2d 333 (1975) (quoting United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 380, 92 L.Ed. 442 (1948)); see also United States v. Parker, 749 F.2d 628, 632 (11th Cir.1984) (holding that "while penal statutes are to be strictly construed, the courts are...

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