United States Court of Appeals
For the First Circuit
No. 06-2220
UNITED STATES OF AMERICA,
Appellee,
v.
NORAIDA BELTRÁN,
Defendant, Appellant.
____________________
No. 06-2221
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON ACEVEDO-CRUZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
*
Of the Federal Circuit, sitting by designation.
Julio C. Alejandro-Serrano with whom Nicolás Nogueras-
Cartagena and Nicolás Nogueras Law Offices were on brief for
appellants.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on consolidated brief for appellee.
September 14, 2007
BOUDIN, Chief Judge. On November 4, 2004, Nelson
Acevedo-Cruz and his wife Noraida Beltran were indicted on multiple
counts of conspiracy to infringe copyright, 18 U.S.C. § 371 (2000),
17 U.S.C. § 506(a)(1) (2000), and 18 U.S.C. § 2319(b)(1);
trafficking in counterfeit labels, 18 U.S.C. § 2318; and
trafficking in counterfeit goods or services, id. § 2320. Eight
days later, federal agents searched several video stores owned by
Acevedo as well as Acevedo and Beltran's residence and seized
unauthorized copies of movies and equipment for reproducing DVDs
and VHS tapes.
Following a twelve-day trial in November 2005, a jury
found Acevedo and Beltran guilty on all charged counts. Acevedo
and Beltran were sentenced to 48 months and 36 months in prison,
respectively. The court imposed forfeiture and restitution
pursuant to a stipulation made by the parties. Defendants filed a
timely appeal.
In this court, Acevedo and Beltran challenge the
sufficiency of the evidence against them. We review the
sufficiency of the evidence de novo, "affirming the conviction if,
after viewing all the evidence in the light most favorable to the
government and indulging all reasonable inferences in the
government's favor, a rational factfinder could conclude that the
prosecution proved all elements of the crime beyond a reasonable
-3-
doubt." United States v. Garcia-Carrasquillo, 483 F.3d 124, 129-
30 (1st Cir. 2007).
The evidence of the offenses, apart from intent, was
overwhelming. The defendants operated five video stores for
renting and selling DVDs and videos. The seized evidence and
employee testimony showed that their stores rented and sold copied
motion pictures, that the equipment for copying on a large scale
was located in a cellar next door to defendants' residence, and
that--by Acevedo's own admission--he and his wife copied and
distributed the motion pictures.
Defendants contend that they did not know that they were
making unauthorized copies of movies, but the government presented
evidence of an earlier permanent injunction entered against Acevedo
barring him from reproducing copyrighted movies.1 There was
evidence that Acevedo's cousin, Jose Valle Acevedo, a police
officer in Puerto Rico, informed Acevedo and Beltran that their
infringing activities were illegal.
As if more were needed, films reproduced by Acevedo and
Beltran contained FBI copyright warnings both on the film and on
the DVD and VHS cases. And there was evidence that the films
1
The permanent injunction barred Acevedo from "further
infringing plaintiffs' copyrights in subject motion pictures or any
other motion picture copyrighted by plaintiffs; by manufacturing,
copying, or duplicating; or by unlawfully importing, selling,
marketing, leasing, distributing or otherwise disposing of any
videocassette copies of motion picture copyrighted by plaintiffs."
-4-
reproduced and distributed by Acevedo and Beltran included movies
that were still playing in the theaters and had not yet been
released on videotape. In short, the evidence against Acevedo and
Beltran was more than sufficient to establish willful infringement.
Defendants also say that the government failed to offer
in evidence the certificates of copyright registration; this,
defendants argue, robs the court of subject matter jurisdiction
under 17 U.S.C. § 411. La Resolana Architects, P.A. v. Clay
Realtors Angel Fire, 416 F.3d 1195, 1200-01 (10th Cir. 2005).
Section 411 appears to govern only civil infringement suits and in
any event, defendants stipulated to the certificates of
registration.
Defendants also say that much of the evidence was
unlawfully seized, but the briefs contain no seriously developed
arguments: they simply assert that the warrants were not supported
by probable cause and that they were not sufficiently limited in
scope, and they refer us to "the language of our prior motion
challenging the validity of said warrants and their execution."
Arguments presented in this fashion are not preserved. See Mass.
Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 43 (1st
Cir. 1998).
As it happens, it appears that the warrants were based on
ample information establishing probable cause, including affidavits
that included information provided by a confidential witness
-5-
familiar with Acevedo and Beltran's piracy operations and by an
undercover FBI agent who purchased pirated movies from shop
premises identified in the warrants. The warrants also appear to
describe with particularity the places to be searched and items to
be seized.
Finally, defendants challenge their sentences. Using the
2004 edition of the guidelines,2 the court assigned a base level of
eight for infringement, U.S.S.G. § 2B5.3(a), added two levels
because the "offense involv[ed] the manufacture . . . of infringing
items," id. § 2B5.3(b)(3), ten levels because the loss due to the
crimes exceeded $120,000, id. §§ 2B5.3(b)(1), 2B1.1(b)(1)(F),
adjustments for role in the offense,3 and a two level enhancement
under section 3C1.1 for Acevedo for obstructing or impeding the
administration of justice.
The resulting guideline ranges were 63-78 months for
Acevedo and 41-51 months for his wife. Both defendants were then
sentenced, as already noted, to prison terms well under the
guideline minimum. Nevertheless, in certain cases, a sentence that
2
The 2004 guidelines were the version in effect at the time of
the crime and were used because the edition in effect at the time
of sentencing would have yielded a stiffer guidelines sentence.
See United States v. Cruzado-Laureano, 404 F.3d 470, 488 (1st
Cir.), cert. denied, 546 U.S. 1009 (2005).
3
Specifically, a four level enhancement for Acevedo under
section 3B1.1(a) for leading or organizing a criminal activity
involving five or more participants and a two level enhancement for
Beltran under section 3B1.1(c) for being a manager or supervisor of
criminal activity.
-6-
begins with the guidelines could be jeopardized if the guideline
range was overstated. In this instance, none of the suggested
errors is real.
Defendants say that the enhancement for manufacturing is
double counting. Double counting is not automatically forbidden,
United States v. O'Brien, 435 F.3d 36, 42 & n.3 (1st Cir. 2006),
but here there was none. The guidelines give a base level for the
generic offense of copyright infringement with adjustments for
aggravating activities including manufacturing. U.S.S.G. §
2B5.3(a), (b)(3). As not all infringement involves manufacturing,
there is no double counting.
Defendants next challenge the loss calculation, but they
stipulated to the loss calculation at sentencing. United States v.
Teeter, 257 F.3d 14, 28 (1st Cir. 2001). The role in offense
enhancements were fully supported by evidence. Similarly,
Acevedo's enhancement for obstructing justice was based on his
perjury at trial in denying knowledge that his actions were
unlawful, a denial contradicted by evidence we have already
described.
Other arguments are made in the defendants' briefs,
addressed to various trial or sentencing errors. These claims
include matters raised only by cross reference to district court
filings, inadequately developed or controlled by existing circuit
-7-
precedent. All such claims have been considered but do not require
separate discussion.
Affirmed.
-8-