United States Court of Appeals
For the First Circuit
No. 02-1644
UNITED STATES OF AMERICA,
Appellee,
v.
NGAI MAN LEE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
January 17, 2003
SELYA, Circuit Judge. In this case, a jury convicted
defendant-appellant Ngai Man Lee of, inter alia, possession of
fifteen or more unauthorized credit cards (known in the statutory
argot as "access devices"). On appeal, Lee argues that the
district court erred in failing to require jury unanimity as to
which fifteen credit cards he possessed. The question is one of
first impression at the federal appellate level. Upon reflection,
we conclude that the district court appropriately rejected the
proffered jury instruction.
The appellant also advances two other assignments of
error, namely, (1) that the police officers who questioned and
arrested him did so in derogation of his constitutional rights, and
(2) that a prejudicial remark uttered at trial demanded the
declaration of a mistrial (a course of action eschewed by the
district court). We reject, more easily, these assignments of
error. When all is said and done, we affirm the judgment below.
I. BACKGROUND
We sketch the factual background and the travel of the
case. We reserve a fuller discussion of particular facts for our
analysis of the appellant's suppression claim.
On September 5, 2001 an employee of an emporium in Salem,
New Hampshire reported an attempted credit card fraud. Police
officers responded to the shopping plaza where the store was
located. They eventually stopped, questioned, and arrested both
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the appellant and a companion. A total of twenty-two unauthorized
credit cards were found in the companion's wallet, the van in which
the suspects had been riding, and a dumpster adjacent to a nearby
store.
In due season, a federal grand jury indicted both men.
The companion pleaded guilty and his case is not now before us.
The appellant maintained his innocence. After a trial, a jury
convicted him of use and attempted use of unauthorized access
devices (count 1) and possession of fifteen or more such devices
(count 2).1 The district court imposed concurrent sentences of
eighteen months' imprisonment and two years' supervised release.
This appeal ensued.
II. ANALYSIS
We consider the appellant's claims of error in
chronological order. Thus, we start by discussing the district
court's denial of the appellant's pretrial motion to suppress. We
then turn to the refusal to grant a mistrial. Finally, we address
the claim of instructional error.
A. The Suppression Motion.
In considering pretrial rulings on suppression of
evidence, we review the district court's answers to questions of
1
The applicable statutory sections proscribe conduct
pertaining to unauthorized or counterfeit access devices. See 18
U.S.C. § 1029(a)(2)-(3), (b)(1). For simplicity's sake, we refer
here solely to unauthorized credit cards.
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law de novo and its findings of fact for clear error. United
States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996); United States
v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). The ultimate
questions on which Fourth Amendment inquiries hinge — such as the
reasonableness of a particular detention or the existence vel non
of probable cause — engender plenary review. Ornelas v. United
States, 517 U.S. 690, 697-98 (1996). Absent an error of law, we
will uphold a refusal to suppress evidence as long as the refusal
is supported by some reasonable view of the record. United States
v. Campa, 234 F.3d 733, 737 (1st Cir. 2000).
The appellant's suppression claim is fact-specific. We
recount the relevant facts as the trial court found them,
consistent with record support. See United States v. Chhien, 266
F.3d 1, 8 (1st Cir. 2001). On the day of the arrest, Salem police
received a report of possible credit card fraud at a Service
Merchandise outlet. The store's manager related that a young Asian
male had tried (but failed) to purchase a $2,300 wristwatch using
not one but two platinum American Express cards ostensibly issued
in the name of Zhi Lin. When the attempt failed, both the
prospective purchaser and his cohort — an Asian man wearing a green
shirt and light-colored pants — departed hurriedly and headed for
the parking lot.
Officer John Joy responded to the call. Arriving on the
scene, Joy's attention was drawn to a white van occupied by the
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appellant and Manchu He. The two men matched the broadcast
description of the suspects. Although the van was stopped in the
parking lot, the appellant tried to pull it forward when Joy
approached. Finding the way obstructed, the appellant then put the
van in reverse and shot back (almost running into Joy's police
cruiser). Concerned that the men were trying to flee, Joy blocked
their path, turned on his blue lights, drew his firearm, and
directed his canine companion to bark. When Joy ordered them to
step out of the van and show their hands, the men complied. As
soon as they did so, Joy re-holstered his weapon and silenced the
police dog.
At that juncture, four more officers arrived. Joy told
the appellant why he had been stopped and assured him that he would
be free to go if everything "turned out." He then posed a series
of questions to him. At the same time, a second officer began
interrogating He. In due course, He gave the officer his wallet
and granted him permission to withdraw four pinchbeck cards from
within it. When He admitted that the name on the cards — Zhi Lin
— was not his, the police arrested him.
Meanwhile, Joy continued to converse with the appellant.
When Joy noticed several shopping bags in plain view in the rear of
the van, he inquired about them. The appellant confirmed that the
merchandise belonged to the two men and gave Joy permission to look
for the corresponding receipts. A cursory inspection failed to
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reveal any receipts, and Joy arrested the appellant for receiving
stolen property.
The appellant thereafter consented to a search of the van
and waived his Miranda rights. See Miranda v. Arizona, 384 U.S.
436, 475-79 (1966). The search proved fruitful: the police found
a cache of fourteen credit cards hidden in two cigarette packs
behind the driver's seat (some in the name of Zhi Lin and some in
the name of Yun Wu Chen). They also recovered receipts for
merchandise purchases totaling approximately $16,000. The receipts
correlated with the goods found in the van and with the
unauthorized credit cards.
That afternoon, an employee of a nearby store found in an
adjacent dumpster another four unauthorized credit cards in the
name of Yun Wu Chen, together with some identification documents
(most of which bore the same name). The employee also reported
that an Asian male had entered the store earlier that day but had
left after a few minutes of casual conversation.
The appellant mounts a three-pronged challenge in a
concerted effort to suppress the fourteen credit cards, the
receipts, the merchandise, and statements that he made to the
police. This challenge assails the constitutionality of the
investigatory stop, the propriety of his arrest, and the lawfulness
of the authorities' post-arrest activities. We deal with these
matters sequentially.
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1. The Investigatory Stop. Warrantless investigatory
stops are allowable if, and to the extent that, police officers
have a reasonable suspicion of wrongdoing — a suspicion that finds
expression in specific, articulable reasons for believing that a
person may be connected to the commission of a particular crime.
Terry v. Ohio, 392 U.S. 1, 21 (1968); United States v. Woodrum, 202
F.3d 1, 6-7 (1st Cir. 2000). In this case, the police officer
relied on the information in the store manager's account, together
with what he observed in the parking lot, to draw the inference
that the appellant and his companion might be involved in the
reported credit card fraud. The district court found this reliance
reasonable and the inference of involvement logical. We agree.
The two men not only were in the right place at the right time but
also fit the suspects' descriptions. This collocation of
circumstances plainly satisfied the reasonable suspicion standard
for an initial Terry stop. See United States v. Velez-Saldana, 252
F.3d 49, 53 (1st Cir. 2001); United States v. Jones, 187 F.3d 210,
216-17 (1st Cir. 1999). After all, police officers ordinarily may
employ minimally intrusive measures to effectuate legitimate
investigatory purposes. See Whren v. United States, 517 U.S. 806,
809-10 (1996); Chhien, 266 F.3d at 6-10.
A lawful Terry stop may, of course, metamorphose into an
overly prolonged or intrusive detention (and, thus, become
unlawful). The appellant raises that specter. Here, however, as
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in United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998), the
passage of time brought with it new knowledge (e.g., the discovery
of the bogus cards in He's wallet and the sighting of the newly
acquired merchandise) that escalated the level of suspicion. These
emergent developments amply justified the continued detention.
Chhien, 266 F.3d at 9-10; Sowers, 136 F.3d at 27.
Contrary to the appellant's importunings, this is not a
case in which the officers prematurely carried out a de facto
arrest. Although there were five officers on the scene, that fact,
without more, does not lead inexorably to a conclusion that a de
facto arrest occurred. See, e.g., Zapata, 18 F.3d at 975-76;
United States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987). The
evidence, taken as a whole, adequately supports the district
court's finding that, during the interrogation in the parking lot,
a reasonable person in the appellant's position would not have
understood himself to be in custody. Thus, the investigatory stop
did not mutate into the functional equivalent of an arrest. See
Berkemer v. McCarty, 468 U.S. 420, 442 (1984); Zapata, 18 F.3d at
975.
In arguing for a different result, the appellant relies
heavily on our decision in United States v. Acosta-Colon, 157 F.3d
9 (1st Cir. 1998). But the stop that transpired here is cut from
different cloth. Unlike the suspect in Acosta-Colon, id. at 18-20,
the appellant was neither handcuffed nor confined. Moreover,
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unlike the suspect in Acosta-Colon, id. at 17-18, the appellant was
detained and questioned in a public place. These distinctions are
critically important in drawing the sometimes elusive line between
permissible investigation and impermissible intrusion. See Oregon
v. Mathiason, 429 U.S. 492, 494-96 (1977); Zapata, 18 F.3d at 975-
77.
To be sure, Joy did block the movement of the van and
draw his firearm — but he did so for a specific, security-related
reason: he was faced with what appeared to be an attempt at
flight. This makes a world of difference. See United States v.
Taylor, 162 F.3d 12, 21 (1st Cir. 1998); see also Acosta-Colon, 157
F.3d at 18-20 (collecting cases). In all events, actions such as
unholstering a weapon and obstructing a vehicle's path do not, as
a matter of law, transmogrify an otherwise lawful Terry stop into
a de facto arrest. See, e.g., United States v. Trueber, 238 F.3d
79, 94 (1st Cir. 2001); Quinn, 815 F.2d at 156-57. In this
instance, the totality of the circumstances adequately supports the
district court's finding that the stop lacked the coercive element
necessary to convert it into something more draconian.
That ends this aspect of the matter. The district court
could, perhaps, have found the facts differently — but it is not
our proper province either to speculate about whether the police
officers' methods might possibly have been more genteel or to
second-guess the district court's assessment of the evidence. See
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United States v. Sharpe, 470 U.S. 675, 686-87 (1985). Mindful of
these constraints, we uphold the lower court's binary determination
that reasonable suspicion adequately justified the investigatory
stop from its inception and that the ensuing detention was
sufficiently restricted in its scope to satisfy applicable
constitutional limitations.
2. The Arrest. The appellant next challenges the
legality of his arrest. His challenge depends upon the existence
vel non of probable cause.
Probable cause is a fluid concept. Its existence must be
evaluated under the entirety of the circumstances. Illinois v.
Gates, 462 U.S. 213, 232 (1983); United States v. Figueroa, 818
F.2d 1020, 1024 (1st Cir. 1987). Probable cause to arrest does not
demand either the same quantum of proof or the same degree of
certitude as a conviction. Probable cause does, however, require
reasonably trustworthy information such as would lead a prudent
person to believe that the suspect likely had committed or was
committing a criminal offense. See Beck v. Ohio, 379 U.S. 89, 91
(1964); United States v. Winchenbach, 197 F.3d 548, 555 (1st Cir.
1999).
Probable cause often accretes gradually as an
investigation progresses. So it was here: we agree with the
district court that the circumstances giving rise to reasonable
suspicion (recounted above) and the developments that unfolded
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during the Terry stop furnished probable cause for the appellant's
arrest.
The appellant protests that he was arrested primarily
because his companion, He, was found in possession of unauthorized
credit cards. While it is true that a person's "mere propinquity
to others independently suspected of criminal activity does not,
without more, give rise to probable cause," Ybarra v. Illinois, 444
U.S. 85, 91 (1979), there is a considerable difference between mere
propinquity and culpable propinquity. This is a case in which
culpable propinquity logically could be inferred.
We rehearse the sequence of events. The store manager
had reported that two Asian men had entered his establishment in
connection with an attempted credit card fraud. The police
discovered the appellant in the immediate vicinity of the failed
attempt, driving a van that contained a large quantity of
expensive, newly acquired merchandise. The man riding with him was
found to be in possession of unauthorized credit cards (for which
he was arrested). To cinch matters, the two men were not merely
near one another but were traveling companions who satisfied the
store manager's descriptions and who — by the appellant's own
prearrest admission — jointly possessed the newly acquired
merchandise. Under those circumstances, it strains credulity to
think that the appellant was unaware that such a large quantity of
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goods had been obtained through fraud.2 Cf. United States v.
Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (noting that "criminals
rarely welcome innocent persons as witnesses to serious crimes and
rarely seek to perpetrate felonies before larger-than-necessary
audiences").
The short of it is that, as the investigation progressed,
the arresting officer developed increasingly good reason to believe
that substantially more than a momentary, random, or innocent
association existed between the appellant and He (and, thus,
between the appellant and the suspected criminal activity).
Consequently, we uphold the district court's finding that
reasonable suspicion ripened into probable cause, thereby supplying
a sound constitutional basis for the ensuing arrest. See Velez-
Saldana, 252 F.3d at 53; United States v. Martinez-Molina, 64 F.3d
719, 727-30 (1st Cir. 1995).
3. Post-Arrest Actions. Finally, the appellant suggests
that the search of his van was beyond the constitutional pale.
This suggestion lacks force.
The search was conducted pursuant to the appellant's
explicit consent, both oral and written. If that consent was
2
That the police arrested the appellant for receiving stolen
goods rather than for an attempted credit card fraud is of no
moment. What counts is that probable cause existed, whether for
the charge actually prosecuted or for some other offense that
justified full custodial detention. See United States v. Bizier,
111 F.3d 214, 218 (1st Cir. 1997).
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valid, the search was not proscribed under the Fourth Amendment.
See Schneckloth v. Bustamonte, 412 U.S. 218, 227-29 (1973);
Woodrum, 202 F.3d at 8, 10-11. Although the appellant claims that
his consent was vitiated by coercion and lack of comprehension, the
facts of this case do not support that extravagant claim.
The record is bereft of any evidence that the police
acted in a false or unduly coercive manner when they obtained the
appellant's consent to the search. In arguing for a contrary
conclusion, the appellant points principally to the fact that the
police informed him that, if he did not consent to a search of the
van, they would simply secure a warrant. Courts have held, with a
regularity bordering on the monotonous, that this sort of
statement, made in a case in which the facts were sufficient to
support the issuance of a search warrant, does not constitute
coercion. E.g., Bumper v. N. Carolina, 391 U.S. 543, 549 & n.14
(1968) (collecting cases); United States v. Perez-Montanez, 202
F.3d 434, 438-39 (1st Cir. 2000).
The record is equally inhospitable to the appellant's
claim that he lacked comprehension. While we appreciate that
English is the appellant's second language and that he had the
assistance of an interpreter at trial, he has resided in the United
States for many years. Perhaps more important, there is nothing in
the record to indicate that the appellant was unable to understand
Joy's questions, that he had any difficulty in communicating with
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the officers at the scene (or afterwards for that matter), or that
he had any problem comprehending the consent form. These
circumstances undermine the credibility of any claim that lack of
comprehension led him down a primrose path. See United States v.
Abdullah, 162 F.3d 897, 902 (6th Cir. 1998); United States v.
Yusuff, 96 F.3d 982, 986 (7th Cir. 1996).
We add one final flourish. The appellant previously had
been convicted on other charges (e.g., possession of stolen
property). That circumstance indicates that he had direct, first-
hand experience with law enforcement and militates against a
finding that he lacked full comprehension of the officers' request
to search the vehicle. See United States v. Barnett, 989 F.2d 546,
556 (1st Cir. 1993); United States v. Cruz Jimenez, 894 F.2d 1, 8
(1st Cir. 1990). For all of these reasons, we accept the district
court's determination that the appellant's consent to the search
was lawfully obtained.3 See Schneckloth, 412 U.S. at 248-49;
Chhien, 266 F.3d at 8.
The appellant also contends that his Miranda waiver and
the post-arrest questioning that followed were beyond
constitutional limits. Because this contention rests on the same
grounds as his plaint about the supposed invalidity of the
3
Given this determination, we need not address the
government's alternative arguments that the search was lawful under
the automobile exception to the warrant requirement or as an
inventory search. For the same reason, we need not consider the
applicability of the doctrine of inevitable discovery.
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vehicular search, we reject it out of hand. Accordingly, we uphold
the district court's determination that the post-arrest questioning
was neither unduly coercive nor tainted by lack of comprehension.
4. Recapitulation. We summarize succinctly. We
conclude that the police officer who stopped and questioned the
appellant had reasonable suspicion for doing so; that the scope of
the stop was within appropriate limits; that by the time the police
arrested the appellant, reasonable suspicion had burgeoned into
probable cause; and that the appellant knowingly and voluntarily
consented both to a search of the van and to post-arrest
questioning. Consequently, we hold that the lower court did not
err in denying the appellant's motion to suppress.
B. The Mistrial Motion.
We turn next to the appellant's assertion that the trial
judge erroneously denied his motion for a mistrial. We review the
denial of a mistrial motion for abuse of discretion. United States
v. Torres, 162 F.3d 6, 12 (1st Cir. 1998); United States v. Pierro,
32 F.3d 611, 617 (1st Cir. 1994).
The pertinent facts are not disputed. The district court
had sustained the appellant's objection to the admission of any
evidence of the discovery of a Taser stun gun in the van. See Fed.
R. Evid. 403 (authorizing the court to exclude evidence if its
probative value is substantially outweighed by its unfairly
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prejudicial effect). One of the police officers nevertheless let
slip a mention of the gun during his trial testimony.
The appellant objected and sought a mistrial. The
district court struck the offending portion of the answer and gave
the jury an emphatic curative instruction: "The stun gun has
nothing to do with this case. . . . So you should not infer that
there is anything improper about the presence of the stun gun there
because there wasn't, and you should not consider it in your
deliberations because it had nothing to do with this case." Having
taken these prophylactic measures, the court refused to declare a
mistrial.
The appellant assigns error to this ruling, asserting
that no instruction could cure the prejudice inherent in the mere
mention of the stun gun. In his view, that reference, in
conjunction with Joy's testimony about the appellant's alleged
attempt to flee, inevitably would have led the jury to believe that
the appellant harbored a propensity for violence. The district
court rejected this hypothesis. So do we.
When a witness strays into forbidden territory, the usual
remedy is to strike the wayward remark and instruct the jury to
disregard it. See, e.g., United States v. Bradshaw, 281 F.3d 278,
284 (1st Cir. 2002); Pierro, 32 F.3d at 617. In all but the rare
case, that remedy, if properly executed, will suffice to safeguard
the aggrieved party's rights. Perscrutation of the record
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persuades us that this case falls within the general rule, not
within the long-odds exception to it. Four factors heavily
influence our judgment.
First, the witness's allusion to the stun gun, taken in
context, was rather innocuous. Second, the lower court supportably
found that the comment was inadvertent. Third, the court's
response was swift and pointed. It struck the offending reference
and gave a blunt curative instruction on the spot. The appellant
did not fault the wording of the instruction at the time and does
not do so now. Finally, there is a strong presumption that jurors
will follow clear instructions from the presiding judge. See
Torres, 162 F.3d at 12; United States v. Sepulveda, 15 F.3d 1161,
1185 (1st Cir. 1993). The record provides us with no basis for
doubting that the jury did so here.
In sum, the mention of the stun gun was an isolated
incident, and the trial judge — who saw and heard the witness's
lapsus linguae at first hand and had an opportunity to evaluate the
jury's reaction — concluded that the slip was not particularly
consequential. Considering the whole of the record, this
conclusion seems eminently reasonable. Apart from sheer
speculation, there is nothing to suggest that the unfortunate
allusion to the stun gun irretrievably poisoned the well. We hold,
therefore, that the district court's decision to eschew a mistrial
was well within the encincture of its discretion.
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C. The Alleged Instructional Error.
The appellant's remaining claim relates solely to his
conviction on count 2 of the indictment. To prove a violation of
the statute of conviction, 18 U.S.C. § 1029(a)(3), the government
must show that a defendant "knowingly and with intent to defraud
possesse[d] fifteen or more . . . counterfeit or unauthorized
access devices." In this case, the appellant asked the district
court to instruct the jurors that they had to agree on which
fifteen devices (i.e., credit cards) were in his possession. The
court refused to do so (although it did grant the appellant's
request for a supplemental instruction that required jury unanimity
as to which cards were unauthorized). The appellant interposed a
timely objection, see Fed. R. Crim. P. 30(d), and now assigns error
to the trial court's refusal of the desired instruction.
A party's entitlement to a unanimity instruction presents
a question of law. Consequently, the district court's answer to
that question engenders de novo review. United States v. Pitrone,
115 F.3d 1, 4 (1st Cir. 1997).
The requirement that a federal jury be unanimous is a
bedrock principle of our criminal jurisprudence. See Richardson v.
United States, 526 U.S. 813, 817 (1999); Schad v. Arizona, 501 U.S.
624, 634 n.5 (1991); see generally United States v. Correa-Ventura,
6 F.3d 1070, 1076-82 (5th Cir. 1993) (providing an extensive
discussion of the unanimity requirement). The principle is rooted
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in the Due Process Clause, U.S. Const. amend. V, and memorialized
in Fed. R. Crim. P. 31(a).
The unanimity requirement does not impose a rule that all
twelve jurors in a federal criminal case must agree on every last
detail. Sovereigns define crimes by enumerating their factual
elements, and the unanimity requirement attaches to those elements.
See Richardson, 526 U.S. at 817; Johnson v. Louisiana, 406 U.S.
356, 369-71 (1972) (Powell, J., concurring). To that extent — and
only to that extent — unanimity is an indispensable condition
precedent to a conviction. As Justice Blackmun once wrote,
"different jurors may be persuaded by different pieces of evidence,
even when they agree upon the bottom line. Plainly there is no
general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict." McKoy v.
N. Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring).
Thus, if a jury is confronted with divergent factual theories in
support of the same ultimate issue, courts generally have held that
the unanimity requirement is met as long as the jurors are in
agreement on the ultimate issue (even though they may not be
unanimous as to the precise theory). See Richardson, 526 U.S. at
817; Schad, 501 U.S. at 631-32; United States v. Hernandez-Albino,
177 F.3d 33, 40 (1st Cir. 1999).
At this level of generality, the unanimity requirement
serves several salutary purposes. For one thing, it helps to
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ensure that no defendant will be convicted unless the government
has carried its burden of proving guilt beyond a reasonable doubt.
See Correa-Ventura, 6 F.3d at 1076-77. For another thing, it
functions as a corollary of due process rules against duplicity.
See United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999).
Finally, it serves to protect defendants against the vagueness and
imprecision that haunt some criminal statutes. See Schad, 501 U.S.
at 632-33; United States v. Edmonds, 80 F.3d 810, 819 (3d Cir.
1996).
Withal, the unanimity requirement is more easily stated
than applied. The question is one of degree — and the devil is in
the details. Due process demands that a jury must come to
agreement on the principal facts underlying its verdict — what
courts have tended to call the elements of the offense. But that
requirement does not extend to subsidiary facts — what the
Richardson Court has called "brute facts." Richardson, 526 U.S. at
817-18; accord Schad, 501 U.S. at 632. There is no well defined
roadmap to follow in separating the wheat (the elements of an
offense) from the chaff (the brute facts that constitute those
elements). Rather, we must navigate this course by using
guideposts that emanate from "a distillate of the concept of due
process with its demands for fundamental fairness." Schad, 501
U.S. at 637.
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It is thus apparent that, to resolve this dilemma, an
inquiring court must distinguish the elements of a charged offense
from the brute facts that constitute those elements, mindful that
the unanimity requirement attaches only to the former and not to
the latter. Richardson, 526 U.S. at 817-18. This taxonomy has
important ramifications for the criminal justice system. On the
one hand, requiring unanimity on relatively minor details will
hamstring the government's ability to prosecute crimes and
encourage hung juries. On the other hand, leaving jurors free to
convict despite disagreements about critical facts will imperil the
integrity of the reasonable doubt standard.
Against this backdrop, we return to the case at hand.
Here, the district court gave a general instruction on unanimity.
It required the jury, in effect, to agree that the appellant
possessed fifteen or more unauthorized credit cards without
requiring agreement as to the identity of those fifteen cards. The
pivotal question, therefore, is whether the unanimity requirement
extends to which fifteen credit cards the appellant possessed. The
answer to this question depends on whether the identity of the
credit cards that the appellant possessed is a fact strictly
necessary to define the conduct prohibited under the statute of
conviction. See Schad, 501 U.S. at 630-31; United States v.
Jackson, 879 F.2d 85, 88-89 (3d Cir. 1989). In other words, is the
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identity of the particular fifteen credit cards an element of the
offense or merely a fact used to prove an element?4
Ascertainment of the level at which unanimity is required
in order to convict a defendant of a particular crime tends to be
offense-specific. See Richardson, 526 U.S. at 817-18; Correa-
Ventura, 6 F.3d at 1081. Thus, a determination of the extent to
which jury unanimity is required begins — and sometimes ends — with
the text of the statute of conviction. See Richardson, 526 U.S. at
818. Where, as here, the text does not furnish decisive guidance,
an inquiring court must comb the statutory language for clues,
consider relevant legal traditions, look at the overall structure
of the law, examine the statute's legislative history, and mull the
implications for unfairness (if any) associated with the absence of
a specific unanimity requirement. See id. at 819-20; Schad, 501
U.S. at 637-38.
The preeminent clues that infiltrate the language of 18
U.S.C. § 1029(a)(3) are derived from the statute's narrow compass
and its relative specificity. The statute identifies facts
necessary to ground a conviction — possession of fifteen or more
4
We emphasize that this question has practical consequences in
the circumstances of this case. The jury heard evidence about a
total of twenty-two bogus credit cards. These included fourteen
credit cards found in the van, four retrieved from He's wallet, and
four discovered in the dumpster. The jury supportably could have
determined that the appellant actually or constructively possessed
any or all of them. Thus, individual jurors might have used
different combinations to attribute a figure of fifteen or more
cards to the appellant.
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counterfeit or unauthorized access devices — with considerable
precision and channels jury deliberations within well delineated
confines. These features distinguish section 1029(a)(3) from 21
U.S.C. § 848 (the statute at issue in Richardson). The latter
statute criminalizes the conduct of a continuing criminal
enterprise (CCE) and, in so doing, uses as a jumping-off point the
commission of any series of included felonies (out of numerous
possible choices).
The Richardson Court found that the broad and non-
specific nature of section 848 — a statute that lists approximately
ninety numbered sections of the federal criminal code as potential
serial offenses — engenders an unacceptable risk of juror
disagreement as to which series of violations a defendant actually
had committed. 526 U.S. at 819. This risk is magnified because
the statute fails to channel jury deliberations toward a specific
set of circumstances, thus creating a danger that a jury might
convict a defendant unfairly on the basis of his bad reputation
alone. Id. To allay these risks, the Court imposed a requirement
of jury unanimity as to which continuing series of violations a
defendant actually committed. Id. at 824.
Section 1029(a)(3) does not pose either the same type or
degree of risk. While the CCE statute is broad and non-specific,
section 1029(a)(3) is narrow and specific. Its precise account of
the facts necessary to ground a conviction means that jurors, even
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without a particularized unanimity instruction, are hardly likely
to convict if they cannot reach agreement as to the principal
factual elements referable to a given charge. See McKoy, 494 U.S.
at 449 n.5 (Blackmun, J., concurring) (collecting cases); cf.
Verrecchia, 196 F.3d at 301 (suggesting that when the issue is
possession vel non of a specific type of contraband, the potential
for juror disagreement is mitigated). Moreover, section
1029(a)(3), unlike the CCE statute, channels jury deliberations
toward a particular set of circumstances. A jury dealing with such
a statute is unlikely to convict out of a belief that the defendant
was doing some non-specific (but obviously bad) act.
History and tradition also help to distinguish section
1029(a)(3) from the CCE statute. The term "violation," used in the
CCE statute, always has had independent legal significance; thus,
whether certain conduct amounts to a violation is a matter that
typically requires jury unanimity. See Richardson, 526 U.S. at
818-19; Edmonds, 80 F.3d at 822. In contrast, the phrase "fifteen
or more," used in section 1029(a)(3), has no independent legal
significance. That phrase simply refers to the nature of the
proscribed possession. Consequently, it evokes no similar
tradition of jury unanimity.
In these respects, section 1029(a)(3) is very different
from the CCE statute. The more apt comparison is between section
1029(a)(3) and 18 U.S.C. § 922(g)(1) (the statute at issue in
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Verrecchia). Section 922(g)(1) criminalizes the possession of "any
firearm" by a previously convicted felon. Id. The district court
failed to give an instruction requiring jury unanimity as to which
firearm the defendant allegedly possessed. Verrecchia, 196 F.3d at
296-97. On plain error review we approved this omission, reasoning
that jurors who agreed that the defendant possessed a firearm but
disagreed as to which firearm he possessed nonetheless would be
unanimous on the relevant element of the offense: possession of
"any firearm." Id. at 299. So it is here. Jurors who agreed that
the appellant possessed fifteen unauthorized credit cards but
disagreed as to which fifteen nonetheless would be unanimous on the
relevant element of the offense: possession of "fifteen or more
. . . devices." The use of non-specific terms such as "any" or "or
more" indicates that Congress's emphasis was not on the identity of
the actual items (whether firearms or credit cards), but, rather,
on the possession thereof. See id.
An examination of the structure of section 1029 fortifies
our belief that the identity of the particular credit cards should
not be deemed an element of the offense. That global view leaves
a clear impression that Congress intended to target fraudulent
access crimes of a particular scope, such as those surpassing
certain value thresholds, see, e.g., 18 U.S.C. § 1029(a)(5)
(criminalizing the knowing use of one or more access devices, with
intent to defraud, in order to receive more than $1,000 in a one-
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year period), or those involving technologies fraudulently used to
produce or verify access devices, see, e.g., id. § 1029(a)(4)
(criminalizing the possession, production, or use of device-making
equipment). The graduated penalty provisions of section 1029, see
id. § 1029(c), also are consistent with a focus on the scope of the
fraudulent conduct.5 This emphasis on scope indicates that
Congress most likely regarded the number of unauthorized credit
cards — "fifteen or more" — rather than their identity as the
relevant element of the offense. Cf. Verrecchia, 196 F.3d at 299-
300 (requiring no unanimity as to which firearm defendant possessed
because the statutory focus lies elsewhere).
The strength of this conclusion is not attenuated by the
fact that Congress sought to link culpability to both the nature
and number of associated devices through extensive definitions as
to what constitutes counterfeit or unauthorized devices. See,
e.g., 18 U.S.C. § 1029(e)(1)-(3). The statute provides no detail
as to how these devices must be possessed. See id. § 1029(e). By
the same token, it does not otherwise supply a reason why a jury
should be required to agree on exactly which fifteen cards a
defendant possessed. These are strong indications that the
identity of the credit cards was not meant to be an element of the
offense. See Verrecchia, 196 F.3d at 300-01 (undertaking the same
5
This graduated progression based solely on scope is uniform,
save for an exception relating to recidivism. See 18 U.S.C. §
1029(c)(1)(B).
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type of analysis, and reaching the same conclusion, with respect to
the felon-in-possession statute).
The legislative history of section 1029(a) further
buttresses our intuition that section 1029 focuses on the scope of
the crime of possession as a whole, as opposed to focusing on each
act of possession comprised within that whole. Enacted to augment
the Consumer Credit Protection Act, 15 U.S.C. § 1644, and the
Electronic Funds Transfer Act, id. § 1693n(b), in combating
increasingly sophisticated types of fraudulent practices, section
1029 expanded the armamentarium available to federal law
enforcement authorities by criminalizing the mere possession of
counterfeit or unauthorized access devices. See H.R. Rep. No. 98-
894, at 5 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3691; see
also Theresa L. Kruk, Annotation, What Constitutes Violation of 18
U.S.C.A. § 1029, Prohibiting Fraud or Related Activity in
Connection with Credit Card or Other Credit Access Device, 115
A.L.R. Fed. 213 (1993). Congress incorporated the "fifteen or
more" minimum and the $1,000 monetary threshold as jurisdictional
elements, presumably in order to ensure that the weight of the
federal government would be brought to bear on more sophisticated
and larger-scale fraudulent schemes (where federal resources can
best supplement state and local law enforcement efforts). See H.R.
Rep. 98-894, supra, at 5, reprinted in 1984 U.S.C.C.A.N. at 3691.
These factors suggest that the identity of the particular "fifteen
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or more" credit cards is not an element of the offense described in
section 1029(a)(3), but, rather, encompasses brute facts incident
to that offense.
In an endeavor to refute this suggestion, the appellant
refers us to a line of cases holding that access devices possessed
over different periods of time cannot be aggregated to meet the
numerical requirement of section 1029(a)(3). See, e.g., United
States v. Powell, 973 F.2d 885, 890 (10th Cir. 1992); United States
v. Russell, 908 F.2d 405, 406-07 (8th Cir. 1990). Far from
subverting our conclusion, these decisions simply illustrate that
the phrase "fifteen or more . . . devices" defines the scope of a
single crime; given the indications we have noted, that phrase
cannot coherently be read as an attempt to aggregate separate
crimes. Thus, Powell and Russell confirm a part of our basic
premise: the statute of conviction targets crimes of a certain
scope. In other words, the crime defined by 18 U.S.C. § 1029(a)(3)
is not fifteen acts of possessing an unauthorized credit card, but,
rather, a single act of possession of fifteen such devices.
A comparison of section 1029(a)(3) with other statutes of
similar structure bolsters this conclusion. Typically, statutory
elements that require a jury to find a specific quantity of a
substance or thing do not demand unanimity as to which items make
up that quantity. See, e.g., United States v. Kayode, 254 F.3d
204, 214 (D.C. Cir. 2001) (refusing to require unanimity, in a
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prosecution under 18 U.S.C. § 1028(a)(3), as to which five or more
identification documents a defendant possessed); United States v.
Nicolaou, 180 F.3d 565, 571-72 (4th Cir. 1999) (refusing to require
unanimity, in a prosecution under 18 U.S.C. § 1955(b)(1)(ii), as to
which five or more persons participated in an illegal gambling
business). Indeed, Richardson helps to prove this point. Although
the Court demanded unanimity as to which predicate offenses the
defendant committed, it suggested that, as to a different aspect of
the CCE statute, 21 U.S.C. § 848(c)(2)(A), unanimity might not be
required as to which "five or more other persons" the defendant
supervised. See Richardson, 526 U.S. at 824. In this regard, the
Court noted that the language, breadth, and tradition of the two
factual requirements differed significantly. See id.; see also id.
at 829 (Kennedy, J., dissenting); United States v. Tarvers, 833
F.2d 1068, 1074-75 (1st Cir. 1987) (holding expressly that, in a
prosecution under 21 U.S.C. § 848, unanimity is not required as to
the identity of the persons supervised).
Finally, we note that potential juror disagreement on the
identity of the credit cards possessed does not risk serious
unfairness in contravention of a defendant's constitutional rights.
As the structure and legislative history of section 1029 evince,
the statute targets fraudulent ventures of a certain size and
scope. This emphasis might, in some circumstances, increase the
chance of an unfair conviction in the absence of a specific
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unanimity requirement. See Richardson, 526 U.S. at 819;
Verrrecchia, 196 F.3d at 301. Here, however, the statute's
language is very precise as to the factual basis of the proscribed
conduct. This precision, in turn, commands consensus on a number
of important facts directly linked to the culpability of a
defendant's conduct. That feature significantly mitigates the risk
of substantial jury disagreement. See United States v. Davis, 306
F.3d 398, 414 (6th Cir. 2002) (refusing to require unanimity on the
means by which a defendant violated the aiding and abetting
statute, 18 U.S.C. § 2, because of the statute's "finite terms");
Verrecchia, 196 F.3d at 301 (concluding that the precision of 18
U.S.C. § 922(g)(1) reduces the potential for unfairness and, thus,
reduces the need for a specific unanimity requirement).
Consequently, we do not believe that the absence of a unanimity
instruction anent the identity of the devices possessed has adverse
implications for the fairness of potential convictions under 18
U.S.C. § 1029(a)(3).
We need go no further. Having completed our canvass of
the appropriate points of reference, we conclude that the identity
of the particular devices possessed by a defendant is not an
element necessary to prove the culpable act of possession under 18
U.S.C. § 1029(a)(3). Accordingly, that statute does not require a
jury, as a condition precedent to conviction, to reach unanimous
agreement as to which access devices a defendant possessed. It
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follows inexorably that the district court did not err in refusing
to give the instruction sought by the appellant.
Affirmed.
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