United States v. Harrell ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10238
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00475-LKK
PETER THOMAS HARRELL,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
March 11, 2008—San Francisco, California
Filed June 30, 2008
Before: Stephen Reinhardt, Melvin Brunetti, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Brunetti
7807
UNITED STATES v. HARRELL 7809
COUNSEL
Daniel J. Broderick, Federal Defender, Sacramento, Califor-
nia, for the defendant-appellant.
McGregor W. Scott, United States Attorney, Sean C. Flynn,
Assistant United States Attorney, Sacramento, California, for
the plaintiff-appellee.
7810 UNITED STATES v. HARRELL
OPINION
BRUNETTI, Circuit Judge:
Peter Thomas Harrell (Harrell) appeals in part the district
court’s partial denial of his motion for return of property filed
pursuant to Federal Rule of Criminal Procedure 41(g). Acting
pursuant to a warrant, officers seized the property at issue
from Harrell’s residence in 2004. A federal indictment fol-
lowed, but was dismissed after the district court granted Har-
rell’s suppression motion. Harrell now seeks the return of
some property still in the government’s possession.
I. Facts and Proceedings
DISH Network and Direct TV are direct broadcast satellite
services that broadcast encoded digital satellite television and
audio signals throughout the United States. To obtain either
service, subscribers must purchase or lease equipment, includ-
ing receivers, which decode and convert the encoded satellite
signal into a viewable television signal, and “smartcards,”
which authorize the receiver to convert the signal. Each DISH
Network receiver has a unique “boxkey” identification num-
ber which is electronically stored in the receiver and is used
by DISH Network to identify the receiver and to obtain infor-
mation about the receiver. While boxkey identification num-
bers are proprietary and are generally not made available to
the public, they may be obtained using a receiver’s J-TAG
port, which is the input/output port used to interface the
receiver with a personal computer for reading and writing
receiver software.
On October 27, 2004, acting pursuant to a warrant, officers
of the Siskiyou County Sheriff’s Department seized various
items of personal property from Harrell’s residence. The
property included satellite television receivers, smartcards,
and other related electronics, compact discs, computers and
hard drives. The sheriff’s department turned the property over
UNITED STATES v. HARRELL 7811
to the Signal Integrity Division of EchoStar Technologies
Corporation (doing business as DISH Network) for inspection
and analysis. Between November 2004 and February 2005,
Michael J. Clifford (Clifford) inspected and analyzed the
property to establish whether the seized receivers and smart-
cards were modified to receive unauthorized programming.
Clifford concluded that fourteen of the twenty-seven seized
receivers were “modified to receive unauthorized satellite
programming.” Another twelve receivers were either unmodi-
fied, could not be used to pirate a signal, or were not ana-
lyzed. The one remaining receiver belonged to Richard
Harding, not Harrell, and Harrell does not seek its return.
The fourteen receivers Clifford found to be “modified to
receive unauthorized satellite programming” fall into four
subcategories:
1. receivers with what appears to be their boxkey
identification numbers written on their bottoms
in black magic marker;
2. receivers with their boxkey identification num-
bers written on their bottoms in black magic
marker, and scratches, marks and mars on their
J-TAG ports, which is consistent with using a J-
TAG interface device to extract a boxkey identi-
fication number;
3. receivers with their boxkey identification num-
bers written on their bottoms in black magic
marker, and scratches, marks and mars on their
J-TAG ports, and a history of unauthorized use;
and
4. one receiver with only scratches, marks and
mars on its J-TAG port.
7812 UNITED STATES v. HARRELL
Clifford also issued reports on the seized smartcards, com-
puter hard drives, and other miscellaneous items. These mis-
cellaneous items include:
1. digital locks (used to evade electronic counter-
measures sent by satellite service providers to
combat piracy);
2. satellite finders (used to identify locations with
optimum signal reception);
3. J-TAG interface devices (used to transfer soft-
ware between receivers and personal comput-
ers);
4. Sombreros (used to extract boxkey identification
numbers from receivers);
5. memory erasers (used to erase smartcard memo-
ries);
6. ATMEGA 128 devices (used in lieu of smart-
cards to pirate satellite signals); and
7. audio-video replicator programmers (used to
load piracy software onto various piracy
devices).
Finally, Clifford issued reports on software downloads for
piracy devices, instructions on how to use piracy devices,
instructions on the piracy of DISH Network smartcards,
instructions on the installation of digital locks, and instruc-
tions on the extraction of boxkey identification numbers.
The Siskiyou County Sheriff’s Department assigned num-
bers to each item of seized property, which are reflected in its
Department Evidence Report (e.g., 001CS, 001SW, 002CS,
etc.). When an item number encompassed multiple items of
UNITED STATES v. HARRELL 7813
property, Clifford then assigned items or groups of items dif-
ferent item numbers, which are reflected in his analysis
reports (e.g., 24E, 24G, 24I, etc.). Throughout the district
court proceedings, the parties referred to items by the item
numbers assigned to them in the Department Evidence
Report, and when possible we do the same. However, because
Harrell also refers to specific items by Clifford’s item num-
bers, we use those identifying numbers as well, when neces-
sary.
After the Siskiyou County Sheriff’s Department transferred
Harrell’s property to the FBI, a grand jury returned a four-
count indictment against Harrell, charging various violations
of 18 U.S.C. § 1029 and seeking criminal forfeiture of the
seized property.1 After the district court granted Harrell’s
motion to suppress the seized evidence, the court granted the
government’s motion to dismiss the indictment without preju-
dice.
1
Section 1029 states, in pertinent part:
(a) Whoever—
...
(7) knowingly and with intent to defraud uses, produces, traffics
in, has control or custody of, or possesses a telecommunications
instrument that has been modified or altered to obtain unautho-
rized use of telecommunications services;
...
(9) knowingly uses, produces, traffics in, has control or custody
of, or possesses hardware or software, knowing it has been con-
figured to insert or modify telecommunication identifying infor-
mation associated with or contained in a telecommunications
instrument so that such instrument may be used to obtain tele-
communications service without authorization;
...
shall, if the offense affects interstate or foreign commerce, be
punished as provided in subsection (c) of this section.
7814 UNITED STATES v. HARRELL
Harrell then filed the instant motion pursuant to Federal
Rule of Criminal Procedure 41(g), seeking return of the prop-
erty seized from his residence.2 Harrell’s motion included as
exhibits the Siskiyou Sheriff’s Department Evidence Report
and all of Clifford’s reports. In his motion, Harrell states that
he does not seek the return of any property modified to permit
the owner to illegally view encrypted television signals, nor
does he seek the return of any discs with downloaded instruc-
tions explaining how to modify equipment to permit the ille-
gal viewing of encrypted television signals.
In response, the government filed two declarations from
Donald Toy (Toy), Clifford’s supervisor and the manager of
the Signal Integrity Division, which inspected and analyzed
the seized property. The government supported its response
with Toy’s declarations because at the time Harrell filed his
Rule 41(g) motion, Clifford was no longer employed by DISH
Network. Toy concluded that the DISH Network receivers
and smartcards in Harrell’s possession were “modified to
receive unauthorized programming,” and that Harrell also
possessed pirating hardware and software.
The parties stipulated to submit Harrell’s motion on the
papers, and Harrell waived any objection to the government’s
reliance on Toy’s declarations. After noting that the “parties
agree that certain property should be returned to [Harrell],”
the court specifically discussed the receivers contested by the
parties. The court stated:
2
Rule 41 states, in pertinent part:
(g) Motion to Return Property. A person aggrieved by an unlaw-
ful search and seizure of property or by the deprivation of prop-
erty may move for the property’s return. The motion must be
filed in the district where the property was seized. The court must
receive evidence on any factual issue necessary to decide the
motion. If it grants the motion, the court must return the property
to the movant, but may impose reasonable conditions to protect
access to the property and its use in later proceedings.
UNITED STATES v. HARRELL 7815
Mr. Toy based his opinion on the fact that the box-
keys of the receivers were written on the bottom of
the units, there was [sic] scratches and marks on the
J-TAG ports of the receivers, and “information from
the nonvolatile memories indicate that [the] receivers
have been receiving authorized programming.” . . .
Given that [Harrell] does not object to Mr. Toy’s
declaration, the court accepts Mr. Toy’s conclusion
that the receivers have been illegally modified and
are capable of receiving unauthorized programing.
No. CR. S-05-475 LKK, 2007 WL 1279505, at * 2 (E.D. Cal.
May 1, 2007) (second alteration in original). Therefore, the
court concluded, the contested receivers constitute contraband
per se under section 1029(a)(7). The court then discussed the
miscellaneous seized items. Other than certain cables and
adaptors, which the government agrees to return, the court
again accepted Toy’s conclusions as fact, construed items
020SW and 021SW as capable of pirating and/or having been
illegally altered, and found that they should not be returned to
Harrell. In sum, the court ordered:
[Harrell’s] Motion for Return of Property is granted
in part and denied in part. The government shall
return to [Harrell] the following items: blue cards
(item # 032SW), hard drives (item # s 002CS &
003CS), remote control (item # 10SW), unmodified
receivers (item # s 013SW, 014SW, 025SW-
031SW), paperwork (item # 018SW)[,] computer
(item # 034SW), and various cables and adaptors
associated with items # 020SW and # 022SW. The
government shall retain the remainder of the prop-
erty in question.
Id. at *3. This appeal followed.
II. Standards of Review
We review the denial of a motion for return of property de
novo. United States v. Kaczynski, 416 F.3d 971, 974 (9th Cir.
7816 UNITED STATES v. HARRELL
2005). We review the district court’s factual findings for clear
error. United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.
1999).
III. Discussion
[1] “When a motion for return of property is made before
an indictment is filed (but a criminal investigation is pending),
the movant bears the burden of proving both that the seizure
was illegal and that he or she is entitled to lawful possession
of the property.” United States v. Martinson, 809 F.2d 1364,
1369 (9th Cir. 1987) (citations omitted). “However, when the
property in question is no longer needed for evidentiary pur-
poses, either because trial is complete, the defendant has
pleaded guilty, or . . . the government has abandoned its
investigation, the burden of proof changes. The person from
whom the property is seized is presumed to have a right to its
return, and the government has the burden of demonstrating
that it has a legitimate reason to retain the property.” Id. (foot-
notes and citations omitted). The “government must justify its
continued possession of the property by demonstrating that it
is contraband or subject to forfeiture.” Id. (citations omitted).
Here, the government argues that all of the property Harrell
seeks to have returned is contraband per se.
[2] An object is contraband per se if its possession, without
more, constitutes a crime; or in other words, if there is no
legal purpose to which the object could be put. United States
v. McCormick, 502 F.2d 281, 288 (9th Cir. 1974); see also
United States v. Bolar, 569 F.2d 1071, 1072 (9th Cir. 1978)
(per curiam) (explaining that while diamond rings are not
contraband per se, negatives of Federal Reserve Notes are).
The government argues that the seized receivers are contra-
band per se under section 1029(a)(7), and that the seized
smartcards, programming electronics, and other pirating hard-
ware and software are contraband per se under section
1029(a)(9).
UNITED STATES v. HARRELL 7817
A. Receivers
[3] Section 1029(a)(7) imposes penalties on any person
who “knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a telecom-
munications instrument that has been modified or altered to
obtain unauthorized use of telecommunications services.” The
government argues that receivers 001SW, 002SW, 003SW,
004SW, 005SW, 006SW, 007SW, 008SW, 009SW, 011SW,
012SW, 015SW, 016SW, and 017SW “are nothing if they
have not been ‘modified or altered to obtain unauthorized use
of telecommunications services.’ ”
[4] As noted, these fourteen receivers fall into four subcate-
gories:
1. four receivers with what appears to be their
respective boxkey identification numbers writ-
ten on their bottoms in black magic marker
(011SW, 012SW, 015SW, 017SW);
2. seven receivers with their respective boxkey
identification numbers written on their bottoms
in black magic marker, and also, scratches,
marks and mars on their J-TAG ports (002SW,
004SW, 005SW, 006SW, 007SW, 008SW,
016SW);
3. two receivers with their boxkey identification
numbers written on their bottoms in black magic
marker, and scratches, marks and mars on their
J-TAG ports, and a history of past unauthorized
use (001SW, 003SW); and
4. one receiver with only scratches, marks and
mars on its J-TAG port (009SW).
In this case, whether any of these receivers are contraband per
se depends upon whether they are “modified or altered to
7818 UNITED STATES v. HARRELL
obtain unauthorized use of telecommunications services”
under section 1029(a)(7). Whether these receivers could be
contraband per se under another statutory provision is not
before us.
[5] Section 1029 does not explicitly define “modified or
altered”; therefore, we interpret those words to have their
ordinary meaning. Emmert Indus. Corp. v. Artisan Assocs.,
Inc., 497 F.3d 982, 987 (9th Cir. 2007) (explaining that “un-
less statutory terms are otherwise defined, they are generally
interpreted in accordance with their ordinary meaning” (inter-
nal quotation marks omitted)). Black’s Law Dictionary
defines a modification as a “change to something; an alter-
ation.” 1025 (8th ed. 2004). Similarly, a lay dictionary defines
modify as to “make partial changes in; make different”; and
defines alter as to “make or become different; change.”
Oxford American Dictionary of Current English (1st ed.
1999). Giving modified and altered their ordinary meanings,
we conclude that there must be a change to either the hard-
ware or software of a telecommunications instrument that
makes it more capable of obtaining unauthorized signals in
order for it to be “modified or altered” under section
1029(a)(7). See, e.g., United States v. Mendez-Carrero, 196 F.
Supp. 2d 138, 140 (D. P.R. 2002) (explaining that section
1029(a)(7) applies to cellular phones with reprogrammed
microchips and cellular phones programmed to emit random
Electronic Serial Numbers-Mobile Identification Numbers
both of which allow calls to be made without being billed);
United States v. Alvelo-Ramos, 957 F. Supp. 18, 18-19 (D.
P.R. 1997) (explaining that cloned cellular phones fall within
the ambit of section 1029). The government cites no legisla-
tive history or cases warranting a more expansive reading of
“modified or altered,” the district court did not discuss any,
and we have found none.3
3
Because we are construing a criminal statute, we also apply the rule of
lenity, which favors a narrow construction of ambiguous terms. See
UNITED STATES v. HARRELL 7819
In addition to giving modified and altered their ordinary
meaning, our reading of section 1029(a)(7) is consistent with
other cases in which the government sought to combat the
unauthorized viewing of satellite television under other statu-
tory provisions, namely 18 U.S.C. § 2512 and 47 U.S.C.
§ 605(e)(4).4 In United States v. Lande, we held that the Elec-
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127 (9th Cir. 2006) (en
banc) (noting that courts should apply the rule of lenity when interpreting
criminal statutes “in both criminal and noncriminal cases,” and therefore
“courts should construe . . . ambiguous statutory language against the gov-
ernment”).
4
Section 2512 states, in pertinent part:
(1) Except as otherwise specifically provided in this chapter, any
person who intentionally—
...
(b) manufactures, assembles, possesses, or sells any electronic,
mechanical, or other device, knowing or having reason to know
that the design of such device renders it primarily useful for the
purpose of the surreptitious interception of wire, oral, or elec-
tronic communications, and that such device or any component
thereof has been or will be sent through the mail or transported
in interstate or foreign commerce;
...
shall be fined under this title or imprisoned not more than five
years, or both.
Section 605 states, in pertinent part:
(e) Penalties; civil actions; remedies; attorney’s fees and costs;
computation of damages; regulation by State and local authorities
....
(4) Any person who manufactures, assembles, modifies, imports,
exports, sells, or distributes any electronic, mechanical, or other
device or equipment, knowing or having reason to know that the
device or equipment is primarily of assistance in the unauthorized
decryption of satellite cable programming, or direct-to-home sat-
ellite services, or is intended for any other activity prohibited by
subsection (a) of this section, shall be fined not more than
7820 UNITED STATES v. HARRELL
tronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521,
prohibits the modification of descramblers to allow unautho-
rized viewing of scrambled satellite television. 968 F.2d 907,
908 (9th Cir. 1992). We specifically noted that “Lande modi-
fied the . . . satellite descrambler module by copying the elec-
tronic ‘address’ of a subscriber’s . . . unit on blank computer
chips, which he then installed in other . . . descramblers,” and
that “Lande then added a new computer chip to the . . . units
so the modified descramblers would unscramble all stations.”
Id. at 908-09. In United States v. Harrell, 983 F.2d 36, 37 (5th
Cir. 1993), where the government alleged violations of both
section 2512(1)(b) and section 605(e)(4), the court noted that
the modules at issue “had been implanted with a chip . . . in
order that non-paying usurpers could unscramble encrypted
satellite transmissions.” Finally, in United States v. Shriver,
the court explained that “descramblers are modified by
removing and replacing [their] unique address with a ‘work-
ing address,’ an address identical to that of another descram-
bler, the latter of which is programmed to descramble a
greater number of encrypted programs.” 989 F.2d 898, 900
(7th Cir. 1992). Each of these cases involves changes to either
the hardware or software of descramblers.
[6] Here, the only change to receivers 011SW, 012SW,
015SW and 017SW is that they each have what appears to be
their respective boxkey identification numbers written on
their bottoms in black magic marker. However, because writ-
ing a series of numbers on a receiver in black magic marker
is neither a change to hardware nor software that makes the
receiver more capable of obtaining unauthorized signals, these
four receivers are not “modified or altered,” and are therefore
not contraband per se under section 1029(a)(7).
$500,000 for each violation, or imprisoned for not more than 5
years for each violation, or both. For purposes of all penalties and
remedies established for violations of this paragraph, the prohib-
ited activity established herein as it applies to each such device
shall be deemed a separate violation.
UNITED STATES v. HARRELL 7821
[7] In addition to having their respective boxkey identifica-
tion numbers written on their bottoms in black magic marker,
receivers 002SW, 004SW, 005SW, 006SW, 007SW, 008SW,
and 016SW also have scratches, marks and mars on their J-
TAG ports. Again, however, there is no evidence that these
scratches, marks or mars change either the hardware or soft-
ware of these receivers. Therefore, the government did not
bear its burden of showing these receivers to be “modified or
altered,” and they too are not contraband per se. Similarly,
receiver 009SW is not contraband per se because it only has
scratches, marks and mars on its J-TAG port.
[8] Receivers 001SW and 003SW present somewhat of a
closer question because their non-volatile memories indicate
past receipt of unauthorized satellite programming.5 In the
end, however, our conclusion is the same. As the government
acknowledges, smartcards control the level of programming
accessible by a given receiver, not the receiver itself. There-
fore, despite the fact that these two receivers’ non-volatile
memories indicate past receipt of unauthorized programming,
that does not necessarily mean they are “modified or altered”
under section 1029(a)(7). A “modified or altered” smartcard
could have allowed receipt of unauthorized programming
without any change to the receivers’ hardware or software,
and the government has not otherwise shown that these
receivers, in and of themselves, are “modified or altered to
obtain unauthorized use of telecommunications services.”
Unlike in the cases discussed above, there is no evidence of
computer chips having been added to these two receivers, nor
is there evidence that the receivers’ software has been
changed in any way. Furthermore, the apparent addition of
solder to receiver 001SW’s J-TAG port, without more, does
not establish a modification or alteration to obtain unautho-
rized telecommunications services. Therefore, the government
5
Non-volatile memory is computer memory that can retain stored infor-
mation even when not powered.
7822 UNITED STATES v. HARRELL
did not satisfy its burden of establishing receivers 001SW and
003SW as contraband per se.
We note that the district court ordered the government to
return nine unmodified receivers to Harrell (013SW, 014SW,
025SW, 026SW, 027SW, 028SW, 029SW, 030SW, 031SW).
The government now concedes that Harrell is also entitled to
the return of two additional receivers (019SW, 024SW).
Receiver 019SW is not contraband per se because Clifford
concluded that it “has not been modified,” and receiver
024SW is not contraband per se because Clifford concluded
that “[i]t was produced for the Asian market,” and that “it is
not possible to capture a DISH Network satellite television
signal” with it. Finally, receiver 023SW must be returned to
Harrell because Toy concluded that it is unmodified, and the
government did not seek to retain it in its response. To the
extent the district court concluded that receivers 019SW,
023SW and 024SW have been changed in any way, those fac-
tual findings are clearly erroneous, and the receivers must be
returned to Harrell.
To recap our analysis, with respect to the seized receivers,
the government must return the following twenty-six receiv-
ers to Harrell because the government does not seek to retain
them, or the government did not show them to be modified or
altered to obtain unauthorized use of telecommunications ser-
vices under section 1029(a)(7), or they cannot capture a DISH
Network satellite television signal: 001SW, 002SW, 003SW,
004SW, 005SW, 006SW, 007SW, 008SW, 009SW, 011SW,
012SW, 013SW, 014SW, 015SW, 016SW, 017SW, 019SW,
023SW, 024SW, 025SW, 026SW, 027SW, 028SW, 029SW,
030SW and 031SW. The government may retain possession
of receiver 004CS because Harrell does not seek its return.
B. Smartcards, programming electronics, and other
hardware and software
The government next argues that smartcards, programming
electronics, and other seized hardware and software are con-
UNITED STATES v. HARRELL 7823
traband per se under section 1029(a)(9) and should not be
returned to Harrell. Section 1029(a)(9) makes it a crime to
“knowingly . . . [possess] hardware or software, knowing it
has been configured to insert or modify telecommunication
identifying information associated with or contained in a tele-
communications instrument so that such instrument may be
used to obtain telecommunications service without authoriza-
tion . . . .”
Specifically, the government argues that possession of the
property encompassed in items 020SW, 021SW and 022SW
is in and of itself a crime and that the district court properly
determined that the property should not be returned to Harrell.
After again accepting Toy’s conclusions as fact, the court
“construe[d] items 020SW and 021SW as capable of pirating
and/or having been illegally altered,” and found that they
should not be returned to Harrell. See 2007 WL 1279505, at
*2. The district court did not separately address item 022SW.
In reaching its conclusion, the court specifically noted that
Harrell “does not seek to have returned to him any items
which are capable of pirating.” Id. There is some support for
the district court’s assertion in the record; in Harrell’s initial
motion he states that he has no desire to have property encom-
passed within items 020SW and 022SW returned to him that
“are identified as having no ‘legitimate’ use, piracy devices,
or used in the pirate community.” However, in his reply, Har-
rell clarified that unless an item “is accompanied by a reliable
explanation that it has no known legitimate purpose, it must
be returned” to him. Harrell argues that items 020SW and
022SW must be returned to him because the government did
not satisfy its burden of showing these items to be contraband
per se.
The Department Evidence Report describes item 020SW as
including miscellaneous “smartcard programming electron-
ics,” and item 022SW as including miscellaneous “satellite
electronics from organizer on desk.” These descriptions are
not particularly helpful in identifying the property in dispute;
7824 UNITED STATES v. HARRELL
however, Harrell’s motion treats items 020SW and 022SW as
referring to property described in four of Clifford’s analysis
reports (Ex. S in support of Harrell’s motion), and so, we do
the same. We also refer to these items as Clifford did in his
analysis reports.
In the first of these reports, Clifford concluded that
switches included in item 24G “are used in any multi-antenna
requirement, legitimate or illegitimate,” that item 24I is a gen-
eral computer component and that “nothing makes [it] note-
worthy regarding satellite television piracy,” and that items
26P and 26Q “appear to have no piracy application.” The
government offered no evidence to contradict these conclu-
sions; therefore, items 24G, 24I, 26P and 26Q are not contra-
band per se under section 1029(a)(9). Because the
government agrees to return nine assorted computer cables
and adaptors included in item 24E, this item is not in dispute.
[9] In the second report, Clifford concluded that “[t]here
are no known legitimate purposes for the possession of [items
24C, 26C, 26F and 26G] other than to be used with satellite
receivers for the reason of stealing satellite signals.” All of
these items are “locks,” used in the pirate community to inter-
rupt signal commands sent to receivers. Clifford explained
that these “locks” allow the user to “control whether [receiv-
ers] accept certain updates in order to keep [them] from
accepting Electronic Countermeasures sent by Dish Net-
work.” Toy further explained that these locks “have no other
purpose than stealing satellite signals as they are installed in
the receiver so that the user can evade Electronic Counter-
measures sent by DISH Network.” While it is undisputed that
Harrell possessed this hardware, the government failed to spe-
cifically show that these “locks” are “configured to insert or
modify telecommunication identifying information” pursuant
to section 1029(a)(9). Clifford and Toy explained that these
“locks” control receivers and keep them from accepting Elec-
tronic Countermeasures sent by the service provider DISH
Network. However, that conclusion does not explain how, or
UNITED STATES v. HARRELL 7825
whether, “locks” in fact insert or modify “telecommunication
identifying information” (i.e., boxkey identification numbers).
Whether this is in fact the case requires a technical electronic
analysis that is not in the record. Therefore, the government
failed to meet its burden of showing these “locks” to be con-
traband per se. We do not decide whether these “locks” could
be contraband per se under another statutory provision, as that
issue is not before us; nor do we foreclose the possibility that
Congress may broaden section 1029(a)(9)’s language to
account for technological developments in satellite television
piracy in the future. However, here, because the government
seeks to retain these “locks” pursuant to section 1029(a)(9),
it bears the burden of showing that they “insert or modify
telecommunication identifying information,” and the govern-
ment did not meet that burden.
[10] Clifford further noted in his second report that items
24F (satellite finder) and 26A (memory eraser), while they are
used to pirate satellite television, have a commercial use. Toy
also conceded that satellite finders and memory erasers have
a commercial use. Therefore, these items are not contraband
per se. Finally, Clifford concluded that items “24H, 24J-1,
24J-2, 26H and 26I are piracy devices.” Items 24H, 26H and
26I are J-TAG interface devices and items 24J-1 and 24J-2
are Sombreros. Toy explained, that “J-TAG interface devices
designed to function with DISH Network equipment have no
other purpose than stealing satellite signals as they are piracy
devices that aid in transferring piracy software between
receivers and PC computers.” Toy further explained that
“Sombreros have no other purpose than stealing satellite sig-
nals as they are used to extract boxkeys from the memory of
a DISH Network receiver.” We conclude that items 24H,
26H, 26I, 24J-1 and 24J-2 are contraband per se under section
1029(a)(9) because they are configured to “insert or modify
telecommunication identifying information.”
[11] In the third report, Clifford found items 24B, 24D,
26B, 26J, 26L and 26N to be “potentially associated with the
7826 UNITED STATES v. HARRELL
piracy of DirecTV materials,” and stated that they had to be
submitted for “proper identification” and “forensic analysis.”
Items 24B and 26B are card programmers, items 24D, 26J and
26L are described as Shadow II and Chamelon piracy devices,
and item 26N is an ISO bootloader. There is no record evi-
dence that any of these items were ever analyzed, nor is there
any record evidence indicating the results of this analysis, if
it did in fact take place. The only additional record evidence
pertaining to these items is Toy’s explanation that smartcard
programmers have a legitimate commercial business use.
Therefore, the government did not meet its burden of showing
these items to be contraband per se under section 1029(a)(9).
Clifford’s fourth report includes another Sombrero, item
24A, which Toy stated has “no other purpose than stealing
satellite signals.” Again, because this item is configured to
“insert or modify telecommunication identifying informa-
tion,” it is contraband per se under section 1029(a)(9). As for
the remaining five items in this report, 26D, 26E, 26K, 26M
and 26O, Clifford’s report indicates that these items are con-
figured to insert or modify telecommunication identifying
information, and Toy explained that they “serve no other pur-
pose than to pirate satellite signals.” Specifically, item 26D
consists of ATMEGA 128 piracy devices, which are used in
lieu of smartcards and are “programmed to receive a pirated
satellite signal,” item 26E consists of DSSREV piracy
devices, which are also used in lieu of smartcards, and items
26K, 26M and 26O consist of audio video replicators and
their respective programmers, which are used to transfer
piracy software and program piracy devices. As each of these
items are configured to “insert or modify telecommunication
identifying information,” they are contraband per se under
section 1029(a)(9).
Finally, the Department Evidence Report describes item
021SW as miscellaneous compact discs with satellite pro-
grams. The property encompassed in item 021SW appears to
correlate with the property in one of Clifford’s reports (Ex. T
UNITED STATES v. HARRELL 7827
in support of Harrell’s motion). Of the six items included in
this report, Harrell seeks the return of only two, items 25A
and 25B5. Clifford concluded that item 25A contains “soft-
ware for a 3D/4D Brower [sic] Mouse.” As there is no record
evidence that this item is contraband per se, it must be
returned to Harrell. Harrell argues that item 25B5 must also
be returned to him because it is a compact disc that “contains
music downloads and internet shortcuts that have nothing to
do with alleged satellite signal piracy.” However, Clifford’s
report indicates that in addition to these downloads and short-
cuts, item 25B5 also contains “satellite television piracy mate-
rial regarding the extraction of DISH Network boxkeys from
various receivers through their respective JTAG terminal.”
Toy also concluded that “instructions on the extraction of
boxkeys . . . serve no purpose other than to pirate satellite sig-
nals.” As Harrell “does not seek the return of any discs con-
taining downloaded instructions explaining how to modify
equipment to permit the illegal viewing of encrypted televi-
sion signals,” item 25B5 need not be returned to Harrell.
The government agrees to return the remaining seized prop-
erty to Harrell. This property includes two hard drives
(002CS, 003CS), a remote control (010SW), a computer
(034SW), and four unmodified DISH Network blue cards
included in item 032SW (416986, 821637, 069703, 673556).
Harrell does not seek the return of a fifth modified blue card
(803651). The government has already returned shipping
paperwork, envelopes, and miscellaneous paperwork
(018SW) and one computer (033SW) to Harrell.
IV. Conclusion
On remand, the government must return the following
items to Harrell: 001SW, 002SW, 003SW, 004SW, 005SW,
006SW, 007SW, 008SW, 009SW, 011SW, 012SW, 013SW,
014SW, 015SW, 016SW, 017SW, 019SW, 023SW, 024SW,
025SW, 026SW, 027SW, 028SW, 029SW, 030SW, 031SW,
24E, 24G, 24I, 26P, 26Q, 24C, 26C, 26F, 26G, 24F, 26A,
7828 UNITED STATES v. HARRELL
24B, 24D, 26B, 26J, 26L, 26N, 25A, 002CS, 003CS, 010SW,
034SW, and four of item 032SW’s DISH Network blue cards
(416986, 821637, 069703, 673556). The government has
already returned items 018SW and 033SW to Harrell, and the
government may retain the remaining property.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED for proceedings consistent with this opinion.
Each party shall bear its own costs on appeal.