United States v. Pervaz

United States Court of Appeals
For the First Circuit
For the First Circuit

No. 96-1535

UNITED STATES OF AMERICA,

Appellee,

v.

TARIQ PERVAZ,

Defendant, Appellant.

No. 96-1536

UNITED STATES OF AMERICA,

Appellee,

v.

JIMMIE ALZAMORA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

William J. Murphy for appellant Tariq Pervaz, Thomas G. Briody,

for appellant Jimmie Alzamora.

Sheldon Whitehouse, United States Attorney, with whom Andrew J.

Reich, Assistant United States Attorney, was on brief for appellee.

June 24, 1997

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BOWNES, Senior 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
STANDARD OF REVIEW

The applicable standard of review has been set

forth in detail in Ornelas v. United States, 116 S. Ct. 1657,

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1661-63 (1996). We condensed that teaching in the recent

case of United States v. Khounsavanh, No. 96-1244, slip op.

at 4-5 (1st Cir. May 16, 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, 116 S. Ct.

1657, 1659 (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, 116 S. Ct. at

1661 -- must be upheld unless they are
clearly erroneous. See id. 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, 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

1661-63.1

1. We are surprised in light of Ornelas by the government's

statement in its brief at page 27:

The magistrate's finding of probable
cause to support the warrant is entitled
to great deference. United States v.

Ciampa, 793 F.2d 19, 22 (1st Cir.

1996)[sic].

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THE FACTS
THE FACTS

A) Background
A) Background

Defendants were convicted of taking part in a

telephone "cloning" operation. Some background information

is necessary. Cellular phones transmit messages by radio

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).

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.

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

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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
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.

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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

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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.

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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
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 that

the defendant had no privacy interest in the premises,

vehicle, or container searched. See United States v. Soule,

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908 F.2d 1032, 1034-36 (1st Cir. 1990); United States v.

Miller, 636 F.2d 850, 853-54 (1st Cir. 1980).

This is not such a case. The following facts can

be fairly found or inferred from the record: Defendant Peraz

leased the premises. He and defendant Alzamora were friends

or, at least, partners in crime. Alzamora moved into the

apartment where the fraudulent phone calls were made and

remained there several days with the blinds drawn. Both

defendants were in the apartment when the warrant was

executed. These facts are not sufficient for us to decide

the privacy question one way or the other.

In Combs v. United States, 408 U.S. 224, 226-27

(1972), the Court held that where the court of appeals had

found no standing and the government had not challenged

defendant's standing in the district court, the issue should

be remanded to the district court so the defendant could have

an opportunity to show standing. In United States v.

Bouffard, 917 F.2d 673 (1st Cir. 1990), the government

conceded standing in the district court and on appeal, but a

privacy interest was not apparent on the record. We held:

"Considerations of fundamental fairness warrant remand in

order to afford the defendant an opportunity to attempt to

establish the requisite expectation of privacy." Id. at 677.

There are cases in other circuits that are directly critical

of the government's failure to address standing in the

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district court. In United States v. Dewitt, 946 F.2d 1497,

1500 (10th Cir. 1991), the court held: "The government

offers no excuse for its failure to raise the standing issue

in a timely fashion at the suppression hearing. Accordingly,

the argument is waived." The court relied on Steagald v.

United States, 451 U.S. 204 (1981). In United States v.

Morales, 737 F.2d 761, 763 (8th Cir. 1984) (footnote

omitted), the Eighth Circuit held:

Despite appellant's failure to prove that
he had a legitimate expectation of
privacy in room 141, we nonetheless find
that because of the inconsistent
positions the government has taken at
trial and on appeal concerning
appellant's alleged disclaimer of
knowledge of the key, the government has
lost its right to challenge appellant's
standing.

If the privacy question was vital, we would, at the

very least, remand to the district court for factual

findings. Because, however, it is not, we will assume

standing for purposes of this appeal.

The other argument the government makes is purely

legal: There was no violation of the Electronic

Communications Privacy Act because locating a transmitter

broadcasting on a radio frequency does not constitute

"intercepting" a communication under the Electronic

Communications Privacy Act (ECPA), 18 U.S.C. 2510 et seq.

We are aware that there are cases holding that users of

cellular phones are not protected by the Fourth Amendment.

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See In Re Askin, 47 F.3d 100, 104 (4th Cir. 1995); United

States v. Smith, 978 F.2d 171, 174-76 (5th Cir. 1992). The

operative facts in these cases, however, took place before

the provision in 18 U.S.C. 2510(1) expressly excluding the

radio portion of a cordless telephone communication from the

protection of the Act was deleted by amendment in 1994. See

Pub. L. No. 103-414 202(a)(1). Moreover, in the instant

case, more took place than just locating the source of a

radio frequency; those tracking the broadcast frequency

listened to the actual conversations being transmitted. This

appears to be covered by the Act. We see no point, however,

in deciding what appears to be a thorny question not

necessary to our decision. We follow the district court's

lead and assume, without deciding, that the Act applies.

A) Issues Raised by Defendants
A) Issues Raised by Defendants

The first issue is whether the employees of

Cellular One of Boston (COB) were acting as government agents

when they tracked the radio frequency of the cloned cellular

phone. Under 18 U.S.C. 2511(2)(a)(i), it is not unlawful

for the employee of a provider of wire or electronic

communication services whose facilities are used in the

transmission of wire or electronic communication, "to

intercept, disclose, or use that communication in the normal

course of his employment while engaged in any activity which

is a necessary incident to the rendition of his service or to

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the protection of the rights or property of the provider of

that service . . . ." The following subsection, (2)(a)(ii),

authorizes such employees "to provide information,

facilities, or technical assistance to persons authorized by

law to intercept wire, oral, or electronic communications . .

. ."

It is evident that COB's employees, on learning

from Secret Service Agent Barnard that COB customers were

being defrauded by the cloning operation, had a statutory

right to track the radio frequency of the cloned phone. If

the COB employees were government agents, however, the

requirements of the Fourth Amendment would override statutory

authority.

The question remains, were the employees acting as

agents of the government? See United States v. Mendez-de

Jesus, 85 F.3d 1, 2-3 (1st Cir. 1996) (Fourth Amendment does

not apply to private action unless private party acted as

agent or instrument of government.)

Various tests have developed for determining

whether a private entity has acted as a government agent.

For example, see United States v. Pierce, 893 F.2d 669, 673

(5th Cir. 1990). The Sixth Circuit in United States v.

Lambert, 771 F.2d 83 (6th Cir. 1985) has stated the rule as

follows:

A person will not be acting as a police
agent merely because there was some

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antecedent contact between that person
and the police. United States v.

Coleman, 628 F.2d at 965. Rather, two

facts must be shown. First, the police
must have instigated, encouraged or
participated in the search. Id. Second,

the individual must have engaged in the
search with the intent of assisting the
police in their investigative efforts.

Id. at 89. The Ninth Circuit has held that, "two of the

critical factors in the 'instrument or agent' analysis are:

(1) the government's knowledge and acquiescence, and (2) the

intent of the party performing the search." United States v.

Walther, 652 F.2d 788, 792 (9th Cir. 1981). In United States

v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990), the Ninth

Circuit added a gloss to its rule:

[A] party is subject to the fourth
amendment only when he or she has formed
the necessary intent to assist in the
government's investigative or administra-
tive functions; in other words, when he
or she intends to engage in a search or
seizure. However, under this test, the
fourth amendment will not apply when the
private party was acting for a reason
that is independent of such a
governmental purpose.

In United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.

1996), the Tenth Circuit requires that the government must

"affirmatively encourage or instigate the private action."

This is determined by "the totality of the circumstances."

We think that any specific "standard" or "test" is

likely to be oversimplified or too general to be of help, and

that all of the factors mentioned by the other circuits may

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be pertinent in different circumstances: the extent of the

government's role in instigating or participating in the

search, its intent and the degree of control it exercises

over the search and the private party, and the extent to

which the private party aims primarily to help the government

or to serve its own interests.

Our review of the suppression hearing evidence and

the district court's findings of historical facts is made

through a lens adjusted for clear error viewing. It is

probably true that there would have been no search made by

COB employees were it not for Agent Barnard's telephone call

inquiring about equipment for locating the source of the

transmissions and informing COB that its customers were being

defrauded. But there is no evidence that Barnard authorized

the search or even knew about it. COB employee Anderson in

answer to Barnard's query about whether COB had source-

location equipment said that it did, but he would have to

check with the legal department to see if it could be used in

Rhode Island. Anderson told Barnard that he would call him

back. He did not do so. Instead, he and the other two

employees went to Cranston, Rhode Island, and started

tracking the radio signals on their own. Their motivation

was that COB's customers were being defrauded. Barnard was

ignorant of what was transpiring. COB had a statutory right

to investigate and search for the sources of the radio

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transmitted phone calls. It had a legitimate independent

motivation for its search: to prevent a fraud from being

perpetrated on its customers. That is the purpose of 18

U.S.C. 2511(2)(a)(i) and (ii).

Our combined clear error review of the historical

facts and de novo review of the district court's conclusion

compels a holding that there was no government action in this

case.2

B) The Affidavit and Search Warrant
B) The Affidavit and Search Warrant

We next consider defendant's claim that the search-

warrant affidavit submitted by Special Agent Barnard lacked

probable cause. Keeping in mind the standard of review, we

have examined the eight-page affidavit meticulously.

Paragraph 1 identifies the affiant and explains

that his routine duties include "the investigation of

violations of federal laws pertaining to the unauthorized use

of access devices." The next paragraph, (2), describes the

premises to be searched. This will be discussed in detail in

the next part of the opinion.

2. Ornelas called for de novo review of the district court's

conclusion that a given set of historical facts rose to the
level of probable cause. 116 S. Ct. at 1659. The Court did
not specifically decide whether a similar de novo standard

should be applied to the legal question at issue here:
whether a private entity has acted as a government agent for
Fourth Amendment purposes. Because the defendants' appeal
fails even under the more searching de novo standard, we

assume without deciding that the Ornelas de novo standard

applies.

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Paragraph 3 states that the government (Secret

Service) has been conducting an investigation of a telephone

fraud scheme in Cranston, Rhode Island. The next paragraph

gives the names and addresses of individuals with whom the

affiant had spoken in the course of the investigation.

Paragraph 5 explains the use of MIN numbers as an

access device, which we have already covered in the Facts

section of this opinion. In paragraph 6, the affiant

expresses his belief that individuals are using telephones at

the location described in paragraph 2 to commit a

telecommunications fraud scheme. This paragraph goes on to

state that individuals have "captured" valid MIN and ESN

numbers "into mobile telephones" "and are using these numbers

fraudulently to make telephone calls internationally by way

of telephone credit card account numbers."

Paragraph 7 explains that the MIN/ESN combination

is programmed on "Erasable Programmable Read Only Memory

(EPROM)", located on a computer chip within the general

circuitry of the telephone. Paragraph 8 describes a cellular

telephone cloning operation. This has already been set forth

in the Facts section of this opinion.

Paragraph 9 describes a "call sell" operation by

which a customer pays a fee for making long-distance phone

calls which are billed to the stolen credit card account

numbers. Paragraph 10 recites that long-distance calls are

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being made by unidentified individuals from 156 Woodbine

Street, Cranston, Rhode Island, from "cloned" cellular

phones. It is then stated:

After accessing a long distance carrier
the individual enters a credit card
number to which to bill the international
call. Subsequently, the individual
defrauds the mobile telephone company of
the revenues due them for air time and
defrauds the issuing credit card company
for revenues due them for tolls. The
defrauded company will have to issue the
subscriber a credit for the fraudulent
billing, thereby, incurring the monetary
loss.

Paragraph 11 states in effect that Secret Service

Agent John Enright received information from Cheryl Maher,

Fraud Manager of Cellular One Rhode Island, that individuals

were using "cloned" phones "to access long distance carriers

such as MCI, Sprint and AT&T and are using credit card

telephone numbers to make international calls." Paragraph 12

recites a telephone call received by Agent Barnard from Jan

Mott, a Cellular One technician, giving him essentially the

same information recited in paragraph 11. Paragraph 13

recites further information received from Mott. It

concludes: "Mott stated that since the telephone calls were

mostly being made from one site (site 29) it indicated that

the caller was not mobile but was stationary."

Paragraph 14 states that on September 14, 1995,

Agent Barnard (affiant) spoke with Secret Service Agent

Rodriguez of the Financial Crimes Division of the Secret

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Service. Rodriguez told him that when a caller using a

cellular phone accesses a credit card company such as MCI,

Sprint or AT&T through an access number, the credit card

number used is not recorded by Cellular One. Paragraph 15

recites briefly the same facts we have described fully in the

government-agency section of this opinion.

Paragraph 16 states that Rick Wade, an employee of

Cellular One, had its telephone switch office monitor the

international telephone calls from Cranston, Rhode Island.3

This established that twenty-five telephone numbers were

identified as originating from 156 Woodbine Street, Cranston,

Rhode Island. The total time of the calls was 151 hours,

normally billed at $.75 per minute. The calls continued over

a 24-hour period. Paragraph 17 states that Maher (Fraud

Manager of Cellular One Rhode Island, see paragraph 11),

provided a partial list of telephones that appear to have

been cloned and are being used in the Cranston, Rhode Island,

area. The numbers are listed.

Paragraphs 18, 19, and 20 recite the experience and

training of the affiant. Paragraph 21 is the affiant's

"probable cause" statement.

3. It is clear from Wade's testimony at the suppression
hearing that this was done after the apartment at 156

Woodbine Street had been pinpointed as the source of the
cloned calls.

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Based on our de novo review of the affidavit and

the facts leading to the district court's conclusion that

there was probable cause to issue the warrant, we hold that

there was probable cause for issuing the search warrant.

The next issue is the validity of the warrant.

Defendant claims that the warrant was defective because it

inaccurately described the place to be searched. The warrant

affidavit described the premises to be searched as follows:

I make this affidavit in support of a
search warrant for the two bedroom first
floor apartment of the residence located
at 156 Woodbine Street, Cranston, Rhode
Island, further described as a three
story, wood framed building with a yellow
front, brown trim and brown sides. The
number 156 appears on a post next to the
door on the left as one faces the
building. On the first floor are two
apartments which are accessed through the
door marked 156. The apartment for which
this warrant is sought is the two bedroom
apartment on the left side of the first
floor.

The pertinent part of the search warrant states:

In the Matter of the Search of

(Name, address or brief description of
premises, property or premises to be
searched)

Two bedroom first floor
apartment of the residence SEARCH
SEARCH
WARRANT
WARRANT
located at 156 Woodbine CASE NUMBER:
St., Cranston, RI, further 1:95-M-
020816
described as a three story,
wood framed building with
a yellow front, brown
trim and brown sides.

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TO: Any Special Agent of the

Secret Service and any Authorized

Officer of the United States

Affidavit(s) having been made before me
by James M. Barnard who has

reason to believe that on the person
of or x on the property or premises

known as (name, description and/or
location)

Two bedroom first floor apartment of the
residence located at 156 Woodbine St.,
Cranston, RI, further described as a
three story, wood framed building with a
yellow front, brown trim and brown sides.
The number 156 appears on a post next to
the door on the left as one faces the
building. On the first floor are two
apartments which are accessed through the
door marked 156. The apartment for which
this warrant is sought is the two bedroom
apartment on the left side of the first
floor.

Defendants argue that the warrant did not meet the

particularity requirement of the Fourth Amendment. They

point out correctly that the number 156 was on the left post

at the top of the stairs leading to the entrance landing and

that the number 158 was on the right post at the top of the

stairs. It is stated in defendant's brief at page 26: "But

the warrant does not indicate which direction one must face

in determining right from left." This statement is not

correct. The warrant states: "The number 156 appears on a

post next to the door on the left as one faces the building."

(Emphasis added).

Defendant also argues that, because of the two

different address numbers, those executing the warrant should

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have called the Magistrate and clarified what apartment was

to be searched. The record of the suppression hearing

establishes conclusively that Agent Barnard knew exactly what

apartment was to be searched and proceeded directly to it.

Barnard testified in effect as follows.

There were two entrance doors to the building

containing the apartment to be searched. There were two

posts on either side of the steps when you get to the

entrance landing. The post on the right-hand side of the

steps as one faced the building had the number 158 on it.

The post on the left side carried the number 156 on it.

Barnard entered the building through the 156 door entrance.

He took a short step to the right and proceeded down a

hallway to an apartment on the left side of the first floor

of the building. This apartment had the number 156A on the

door. This was the apartment that was searched.

One of defendants' arguments is that the defendants

actually lived at 158 Woodbine Street, not 156. The number

on the door of the apartment searched -- 156A -- effectively

refutes this claim.

We find and rule that an objective law enforcement

officer would not be confused by the two different address

numbers and that the particularity requirement of the Fourth

Amendment was met. The only confusion was that sown by the

attorneys for the defendants at the suppression hearing.

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Even, however, if the address given in the warrant

may have been somewhat suspect our circuit case law teaches

that any uncertainty raised by the two address numbers did

not invalidate the search warrant.

The leading case in this circuit on the adequacy of

the description of the location to be searched is United

Statesv. Bonner, 808 F.2d 864 (1st Cir. 1986). In Bonner we

stated:

The manifest purpose of the particularity
requirement of the Fourth Amendment is to
prevent wide-ranging general searches by
the police.

The test for determining the
adequacy of the description of the
location to be searched is whether the
description is sufficient "to enable the
executing officer to locate and identify
the premises with reasonable effort, and
whether there is any reasonable
probability that another premise might be
mistakenly searched."

Id. at 866 (citations omitted). In Bonner the affidavit

contained a detailed physical description of the premises to

be searched and its address. The address, however, was

omitted from the warrant. We upheld the validity of the

warrant, stating:

We hold that the Bonner residence was
described with sufficient particularity,
and although the address was
inadvertently omitted, there was no
reasonable probability that another
premises might be mistakenly searched;
thus, the search warrant was valid.

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Id. at 867. Three subsequent cases have relied on the Bonner

analysis and holding: United States v. Cunningham, No. 96-

1828 (1st Cir. May 19, 1997); United States v. Estrella, 104

F.3d 3, 9 (1st Cir. 1997); United States v. Hinds, 856 F.2d

438, 441 (1st Cir. 1988). This precedent seals the issue.

We are aware, of course, that the district court

decided the warrant issue on the basis of United States v.

Leon, 468 U.S. 897 (1984). We do not reach the Leon

approach, and therefore, there is no need to discuss

defendant'sclaim oflack ofgood faithby thesearching officers.

Defendant also claims that the district court

abused its discretion when it raised the issue of the

accuracy of Cellular One's Boston Tracking Equipment, but

then denied defendant's motion to have the equipment

independently examined. The record of the suppression

hearing discloses that this is not exactly what happened.

The district court questioned COB employee Wade about how the

source-location was determined. She asked Wade "to tell us

how the equipment works in order for you to be able to make

the determination in laymen's terms." Wade then explained

what he did and how the equipment worked. The court then

asked further questions about what Wade did, and what he did

or did not tell Barnard. The court's examination of Wade

ended with the following colloquy:

Q. So that before the warrant issued,
you hadn't shown the equipment to the

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Government agents and explained how you
were able to isolate the signal?

A. I don't believe I did.

Q. Did they ever ask you what kind of
equipment you were going to use to do
this?

A. No.

Q. Did they ever ask you the
reliability of the equipment you were
going to use?

A. No.

We construe the court's questions, not as evincing

doubt on its part as to the reliability of the tracking

equipment, but as seeking what information about the

equipment had been given to the government, which was very

little.

We agree with the district court that the motion

came too late for consideration. Under Fed. R. Crim. P.

16(a)(1)(C) defendant had a right to inspect the tracking

equipment prior to trial. Clearly, defendant never thought

about inspecting the equipment until the court's last

question to Wade. This was too late. We have examined the

record carefully and there is nothing to even suggest that

the tracking equipment was unreliable in any way. We hold

that the district court did not err in denying defendant's

motion.

The final issue is whether the district court erred

in determining the amount of loss. The district court

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ordered each defendant to pay restitution in the amount of

$190,275.33. This sum represented the amount that the

defrauded telephone companies would have been paid if the

calls had been made legitimately. Under U.S.S.G. 2B1.1,

application note 2 states in pertinent part: "Loss means the

value of the property taken, damaged, or destroyed.

Ordinarily, when property is taken or destroyed the loss is

the fair market value of the particular property at issue."

The pertinent part of note 3 states: "For the purposes of

subsection (b)(1), the loss need not be determined with

precision. The court need only make a reasonable estimate of

the loss, given the available information."

Defendants assert that the amount used was

erroneous because it "reflects both the costs associated with

processing the calls and a profit margin for the various

cellular phone carriers and providers." No cases are cited

for this novel proposition. Defendants rely on the following

sentence in application note 2 of U.S.S.G. 2B1.1: "Loss

does not include the interest that could have been earned had

the funds not been stolen."

We are not persuaded. We do not think that profit

can be equated with interest. Profit is an ingredient of the

fair market value of goods or services that can be sold and

purchased.

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We discern no error, plain or otherwise, in the

district court's determination of the amount of restitution.

The judgment of the district court is affirmed.
affirmed.

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