United States v. Ngai Man Lee

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

-23-
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

-24-
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-

-25-
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).

-26-
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

-27-
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

-28-
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

-29-
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

-30-
follows inexorably that the district court did not err in refusing

to give the instruction sought by the appellant.

Affirmed.

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