U.S. v. Wai-Keung, WAI-KEUN

• Decision Date: 20 June 1997
• Docket Number: S,WAI-KEUN,94-4346,94-4347 and 94-4366,Nos. 94-4344,s. 94-4344
• Citation: 115 F.3d 874
• Parties: 11 Fla. L. Weekly Fed. C 115 UNITED STATES of America, Plaintiff-Appellee, v. Tamun Cheung, Raymond Ching, and Li Chi-Cheong, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 874

115 F.3d 874

11 Fla. L. Weekly Fed. C 115

UNITED STATES of America, Plaintiff-Appellee, v. Tam WAI-KEUNG, Sun Cheung, Raymond Ching, and Li Chi-Cheong,

Defendants-Appellants.

Nos. 94-4344, 94-4346, 94-4347 and 94-4366.

United States Court of Appeals, Eleventh Circuit.

June 20, 1997.

Howard M. Srebnick, and Helen C. Trainor, Asst. Federal Public Defenders, Miami, FL, for Defendants-Appellants in No. 94-4344.

Kendall Coffey, U.S. Atty., Peter Prieto, Linda Collins Hertz, Michael R. Tein, and Dawn Bowen, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

John F. O'Donnell, Ft. Lauderdale, FL, for Defendants-Appellants in No. 94-4346.

Michael G. Smith, Ft. Lauderdale, FL, for Defendants-Appellants in No. 94-4347.

Paul D. Lazarus, Miami, FL, for Defendants-Appellants in No. 94-4366.

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

Before TJOFLAT and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.

PER CURIAM:

Defendants pleaded guilty to RICO and RICO conspiracy for a scheme in which, using phony credit cards, they made large purchases of expensive goods from luxury stores in the Miami vicinity. The detailed facts are set out in the decision of the district court denying motions to suppress, U.S. v. Wai-Keung, 845 F.Supp. 1548 (S.D.Fla.1994), and need not be repeated here.

Defendant Li Chi-Cheong was granted leave to appeal from denial of his motion to suppress on two grounds: lack of probable cause to arrest, and the taking of his statement allegedly in violation of Miranda.

The district court did not err in holding there was probable cause to arrest Li. Agent Cachinero made the arrest. He was experienced in credit card fraud and had been trained by the Secret Service in identification of fraudulent cards. He was assigned to the access device fraud squad in the Miami office of the Secret Service.

In early January 1993 Cachinero learned of an investigation in West Palm Beach of Asian males posing as rich businessmen and purchasing high-end items with fraudulent credit cards. On January 12 Cachinero responded to a call from a jeweler in the Bal Harbor Mall. The store clerk had noticed that an Asian male wanted to purchase two expensive watches with a credit card. The clerk, who knew of the West Palm Beach investigation, became suspicious. When the clerk attempted to verify the card the suspect fled, leaving behind a fraudulent credit card and fake license.

Cachinero next learned, from representatives of other Bal Harbor Mall stores, of an organized gang of Asian men using fraudulent credit cards to purchase expensive merchandise. According to clerks at one of the victimized stores the men operated in pairs, with one of the pair presenting the credit card and the other standing inconspicuously in the background.

Cachinero also spoke with a fraud investigator for MasterCard, who confirmed that there was an organized ring of Asian males victimizing local stores with fraudulent credit cards.

On January 28 Cachinero received a call stating that there were four Asian men in the Saks store at Bal Harbor, making large purchases using credit cards, some of which were being rejected, and that the men fit the modus operandi described above. Cachinero came to Saks. The suspects had departed, but he was shown a videotape of them. It showed two Asian men at one counter and two at another. And it showed at one counter a person purchasing merchandise, then furtively handing something to a stocky heavyset man nearby. The two men at the other counter were making large purchases with credit cards.

Cachinero thought the behavior of the four individuals was suspicious, in part because of the hand-off of an object from one man to the other, and because the men appeared nervous, and because they fit the profile of the Asian group that had been involved in previous incidents.

Cachinero was advised by an off-duty policeman at the mall that four Asian men were making large purchases in another store. Cachinero entered that store and saw three men he had not seen before in the company of the stocky, heavyset man that he had earlier seen. The other three men present were defendants Li, Sun and Tam. Sun was at the counter. Tam and Li were "browsing among the merchandise." Tam held up a shirt and talked to Li about it. The heavyset man sat in a chair facing the mall acting, according to Cachinero, as a lookout. Cachinero approached the counter at which Sun was standing and observed him utilizing a credit card that he could see was false. While the charge for Sun's purchase was being processed all four defendants went outside and smoked and talked among themselves. They re-entered, Cachinero saw Sun sign a credit card receipt, and the cashier then handed a bag of merchandise to someone in the group. The four men left together.

The heavyset man was seen to leave the others, and Li, Sun and Tam proceeded to another store. There the three of them were observed at the cashier's counter standing next to each other. Sun signed what appeared to be a credit card receipt; Tam and Li were next to him when he did so. A bag of merchandise was handed to one of the three.

Cachinero approached the three defendants, identified himself as a Secret Service agent, and asked for identification. Sun produced a driver's license and credit card, both appearing to be phony. Li produced a Florida driver's license in his name. He had no credit cards. Cachinero took the three into custody.

The district court did not err in concluding that there was probable cause to arrest Li. Li does not deny that he was part of the group, the members of which were acting illegally, and it cannot be inferred from the evidence that he was not a member. He talked to Tam, stood next to members utilizing phony cards, left one store with the group when they went outside to smoke and talk while a charge was being processed, and re-entered with the group. The group was a multi-person operation, following a methodology previously identified, composed of persons of similar identity (Asiatic males), operating in similar sites (luxury stores) and doing the same thing (purchasing high-level items with fake credit cards). There is no basis on which it can be concluded, as Li suggests, that he was just waiting while others purchased merchandise or just watching them make purchases. ¹

Li relies upon Swint v. City of Wadley, 5 F.3d 1435 (11th Cir.1993). In that case a confidential informant entered a club and was sold drugs by a patron. The informant signaled for a raid and search to begin. The seller was arrested immediately but persons inside the club were prevented from leaving until the raid, which lasted one to one-and-a-half hours, was over. During a second raid the seller could not be found and no arrest was made, but people inside the club were held at gunpoint and told to lie on the floor during the raid, which again lasted from one to one-and-a-half hours. Two night club owners, an employee and a patron sued the officers. The court affirmed the denial of qualified immunity to the officers. They did not have arguable cause to conduct extensive raids, searches of the premises, or seizure of patrons, as there was no evidence that persons in the club were involved in illegal activity except for the seller of the drugs. Search and seizure of one suspect, the seller, in a public place could not be bootstrapped into the probable cause for a broad based search of the business and its patrons. 5 F.3d at 1444.

In the present case Cachinero's observations and corroborated tips supplied the requisite link between Li, the other defendants, and their credit card fraud scheme. Li was a member of the group, all members of the group including Li were suspected of engaging in criminal activity based on their activities at the Bal Harbor Mall. Other defendants were not suspected of these crimes independently of Li but as group participants. Cachinero had evidence from his own observations, an informant and the store video.

U.S. v. Gonzalez, 969 F.2d 999 (11th Cir.1992) dealt with the effect of an officer's mistaken belief of fact on his determination of probable cause. The court remanded to the district court for a determination of whether the officer's belief that defendant acted as a lookout for a drug transaction was reasonable despite the officer's misidentification of her. No mistake of fact (i.e. of misidentification) influenced the agent's determination of probable cause to arrest Li.

Li raises the validity of the search of his rental car. This is not one of the grounds upon which he was granted leave to appeal, therefore it cannot be considered.

With respect to all appellants, the court did not err in calculating the amount of intended loss. U.S. v. Toussaint, 84 F.3d 1406 (11th Cir.1996). The district court arrived at a loss of $2,500,000, by adding the number of completed false cards, unembossed cards, signature panels, other unembossed cards found in a safe in the hotel where some of defendants were staying, and a list of account numbers. These were "access devices." The total number was multiplied by the $6,900 average amount charged per account during the two weeks prior to defendants' arrest. Use of averaging to calculate loss is acceptable. U.S. v. Koenig, 952 F.2d 267 (9th Cir.1991); see also U.S. v. Lohan, 945 F.2d 1214, 1218-19 (2nd Cir.1991). The contention that only completed fake cards can be counted is without merit. Under 18 U.S.C. § 1029 it is unlawful to possess unauthorized access devices, defined as "any card, plate code, or account number, ... that can be used, alone or in conjunction with another access device" to obtain a dollar figure.

It is not required that an intended loss be realistically possible. U.S. v. Egemonye, 62 F.3d 425 (1st Cir.1995); U.S. v. Robinson, 94 F.3d 1325 (9th Cir.1996). Nothing in § 2F1.1 n. 7 requires that the defendant be capable of inflicting the loss he intends. W...