United States v. Bienvenide Bautista , 404 F. App'x 408 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16403 ELEVENTH CIRCUIT
DECEMBER 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20038-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BIENVENIDE BAUTISTA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 7, 2010)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Bienvenide Bautista challenges the sufficiency of the evidence
relating to his conviction for one count of knowingly, and with intent to defraud,
possessing device-making equipment, in violation of 18 U.S.C. § 1029(a)(4).
We review de novo the sufficiency of the government’s evidence produced
at trial, viewing the evidence in the light most favorable to the prosecution, with all
reasonable inferences and credibility choices made in the government’s favor.
United States v. SPARC, 568 F.3d 1236, 1244 (11th Cir. 2009). However, when a
defendant presents rebuttal evidence after the denial of a motion for judgment of
acquittal based on the government’s case-in-chief, he has waived the right to
challenge the sufficiency of the evidence based solely on the government’s
presentation of evidence. United States v. Alexandra, 118 F.3d 1518, 1520-21
(11th Cir. 1997). Consequently, where a defendant presents evidence, we will
review all of the evidence presented, not just the evidence presented by the
government. Id. at 1521. Moreover, when a defendant presents evidence, and asks
the jury to evaluate his evidence against the government’s case, he “cannot insulate
himself from the risk that the evidence will be favorable to the government.”
United States v. Thomas, 987 F.2d 697, 702 (11th Cir. 1993) (internal quotation
marks omitted).
“[I]t is not necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of guilty,
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provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” United States v. Merrill, 513 F.3d 1293, 1299 (11th
Cir. 2008) (quotation omitted). Thus, “our sufficiency review requires only that a
guilty verdict be reasonable, not inevitable, based on the evidence presented,”
because “the jury is free to choose between or among the reasonable conclusions to
be drawn from the evidence presented at trial.” United States v. Woodard, 531
F.3d 1352, 1360 (11th Cir. 2008) (internal quotation marks omitted). The
credibility of a witness is the “sole province” of the jury. United States v.
Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). Additionally, it is the jury’s
responsibility to weigh and resolve conflicts in the evidence. United States v.
Pearson, 746 F.2d 787, 794 (11th Cir. 1984).
It is illegal for any person to knowingly produce, traffic in, have control or
custody of, or possess device-making equipment with intent to defraud. 18 U.S.C.
§ 1029(a)(4). “[T]he term ‘device-making equipment’ means any equipment,
mechanism, or impression designed or primarily used for making an access device
or a counterfeit access device.” Id. § 1029(e)(6) (emphasis added). The term
“access device” is defined as “any card, plate, code, account number, or other
means of account access that can be used, alone or in conjunction with another
access device, to obtain money, goods, services, or other thing of value, or that can
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be used to initiate a transfer of funds (other than a transfer originated solely by
paper instrument).” Id. § 1029(e)(1). Intent to defraud has often been defined as
“the specific intent to deceive or cheat, for the purpose of either causing some
financial loss to another, or bringing about some financial gain to one’s self.”
United States v. Klopf, 423 F.3d 1228, 1240 (11th Cir. 2005) (internal quotation
marks omitted).
It appears that we have analyzed § 1029(a)(4) in depth only once. See
United States v. Morris, 81 F.3d 131 (11th Cir. 1996). Although § 1029 has been
amended since we considered the statute in Morris, the amendments are not
relevant to this case. See id. at 134 (noting that Congress had amended §
1029(a)(4) to specifically criminalize possession of the cell phones at issue in the
case); see also United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997)
(noting that § 1029 had been amended in 1994 to include telecommunications
equipment identifier as an “access device”).
In Morris, the defendant had been convicted under a prior version of § 1029
for possessing and selling altered cell phones that could access cellular services
without charge. Morris, 81 F.3d at 132. In particular, the cell phones had altered
microchips that could be reprogrammed by a user to allow for free long-distance
phone calls. Id. In Morris, we analyzed the particular use to which the defendant
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put the devices – the phone themselves, including the microchips – and determined
that they were technically not “designed or primarily used for making an access
device,” as they were primarily used and designed to make telephone calls, not to
make reprogrammed microchips that allowed for free phone calls. Id. at 133-34.
We held in Morris that the relevant device-making equipment was the
equipment used to make the altered microchip in the cellular phone and “not the
actual altered cellular phone itself,” and that the altered microchip, not the phone,
permitted the owner to commit a fraud. Id. Moreover, we held that § 1029(a)(4)
was “applicable only to those devices which access[ed] an individual account, such
as a credit card,” because, to find otherwise, would “turn § 1029 into a general
theft statute applicable whenever a company can document a loss through fraud.”
Id. at 134 (internal quotation marks omitted) (noting, however, that § 1029 had
been amended after the defendant’s conduct, and the amended statute specifically
criminalized the defendant’s conduct).
Although we have yet to interpret the phrase “intent to defraud,” as used in
§ 1029(a)(4), in other instances, we have held that, unless a statute specifies an
intended victim, the phrase is “comprehensive,” making it “immaterial whether the
offender intended to defraud the government or some particular individual.” See
United States v. Bradshaw, 840 F.2d 871, 875 (11th Cir. 1988) (interpreting other
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counterfeiting statutes, and stating that if Congress intended to limit the intent
requirement to a particular victim, “it would have plainly said so”). In other
contexts, we have held that where a specific, identifiable victim is not listed as an
element of the offense, it is not relevant whether the defendant “personally knew
of, communicated with, or directed activities towards” any of the victims of the
offense. See United States v. Munoz, 430 F.3d 1357, 1369 (11th Cir. 2005).
Moreover, all knowing participants in a fraudulent scheme are legally liable for the
actions of an individual who acts to carry out the scheme. Id. (citation omitted).
Additionally, a jury may infer an intent to defraud from the defendant’s conduct.
See United States v. Hawkins, 905 F.2d 1489, 1496 (11th Cir. 1990) (explaining
that the government need not produce direct proof of scienter in a fraud case, but,
instead, can rely on circumstantial evidence of criminal intent).
Here, even Bautista’s own witness stated that the equipment seized in the
case was capable of making reasonable facsimiles of credit cards. A government
witness stated that these facsimiles could be used just like actual credit cards to
make purchases from unsuspecting vendors. The evidence also showed that
Bautista and a codefendant: (1) advertised their equipment as having the capability
to make counterfeit credit cards; (2) explained how to make counterfeit credit
cards; and (3) were fully aware that the government’s confidential informant
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intended to make counterfeit credit cards. Moreover, Bautista’s efforts to conceal
the nature of the transaction evidenced knowledge that the equipment was not
designed solely to produce employer identification cards, as he suggests.
Additionally, because § 1029(a)(4) is not limited to any particular victim, it is
immaterial whether Bautista personally knew of, had any contact with, or directed
any activities towards any specific victim. Because we conclude from the record
that the evidence was sufficient to convict Bautista of the offense charged, we
affirm his conviction.
AFFIRMED.
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