____________________
No. 96-1535
Appellee,
v.
TARIQ PERVAZ,
Defendant, Appellant.
No. 96-1536
Appellee,
v.
JIMMIE ALZAMORA,
Defendant, Appellant.
____________________
____________________
Before
____________________
____________________
Tariq Pervaz,
Thomas G. Brio
______________
Sheldon Whitehouse,
__________________
____________________
-2-
BOWNES,
BOWNES,
Senior
Circuit
Judge.
Senior
Circuit
Judge.
___________________________________
Defendants/Appellants
activities
involving
access
devices
1029(a)(1),
(a)(2), (a)(3),
to
telephone
calls
violation of 18 U.S.C.
(a)(4), (a)(5),
(a)(6), and
There was
motion
to suppress
hearing in
filed
by
suppression motion
was denied.
conditional
pleas
of guilty
indictment,
reserving
their
the district
Alzamora
and
court on
Pervaz.
The
Alzamora
all
counts of
to
seven
right to
appeal
the
the district
Alzamora
was
sentenced
to
fourteen
$190,275,33.
imprisonment
amount as
Pervaz
and
was
ordered to
Alzamora --
sentenced
pay
$190,275,33.
to
filed
by
his
in the
Alzamora.
months
same
defendants appeal
co-defendant
amount of
eighteen
restitution
Both
months
Except
the brief
as
noted
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
The
applicable standard
of
review has
been
set
-3-3-
1661-63 (1996).
We condensed
that teaching
in the
In
reviewing
suppression motion,
ultimate legal
denial
of
determination that a
given set of
facts
subject to
de novo review.
__ ____
1659
(1996);
Zayas-Diaz, 95
__________
Cir.
F.3d
1996).
The
116
S.
See
___
Ct.
United
States v.
___________________
105, 111
n.6
district
(1st
court's
of historical facts --
up to
must be
clearly
erroneous.
Zayas-Diaz,
__________
95
upheld unless
F.3d
See
___
at
id.
___
111
they are
at 1663;
n.6.
recent
slip op.
drawn
from
those
facts
by
"the
decision
historical
facts,
standpoint
of an
police officer,
cause" is
fact
whether
viewed
these
from
the
objectively reasonable
amount to . . . probable
mixed question
which we
1663.
review de
__
of law
novo.
____
and
Id. at
___
1661-63.1
____________________
1.
We are surprised
deference.
United States v.
__________________
Ciampa,
______
793
F.2d
19,
1996)[sic].
-4-4-
THE FACTS
THE FACTS
_________
A)
A)
Background
Background
__________
22
(1st
Cir.
Defendants
were
convicted
is
necessary.
waves, not
and
called
a mobile
allows customers
distance
telephone
calls through
and COMCAST.
the use of
and receive
Cellular
One,
ESNs
are
access
statute, 18 U.S.C.
Cellular
by radio
(MIN), which
local and
long
cellular telephone
Communications, SNET,
and
information
an access device
both
their
Mobile
in a
identification number
to make
part
transmit messages
Telephone companies,
number
taking
Some background
Cellular phones
wires.
of
devices within
the
Both
meaning
MINs
of
the
1029(e)(1).
telephone
subscribers
are
assigned
combination
The MIN/ESN
for
billing its
access
cellular
combination is
is used by
phone subscribers.
programmed on
the carrier
The
MIN/ESN
"Erasable Programmable
scheme
cellular
to defraud
subscribers
telephone
in which
"cloning"
operation
MIN/ESN combinations
is
issued to
-5-5-
cellular telephone so
account.
The
as to obtain
cloning
use of the
is accomplished
by
subscriber's
attaching
the
a specially
customized
cloning
computer chip
software,
The
gains access
MIN/ESN
number
to
the "EPROM"
is programmed
Customers
a fee to
distance
account.
The
the stolen
B)
B)
At
adduced
the outset
at the
of
our rehearsal
suppression hearing,
of the
we caution
evidence
the reader
important
One
case,
employees of
and
Southern New
Cellular One
acting as government
agents.
The
begins on September
England Telephone
Company (SNET)
of Rhode Island
(CORI) informed
the U.S.
Secret Service
that
a disproportionately
large
number
of
-6-6-
The
Barnard,
Secret
Service, through
Special
Agent James
information
and talked
to Dan
Mott, a
that a number
service technician.
of the international
calls
had been made with MINs which were not in the calling area to
which
the
further
MINs were
informed
ordinarily
by Mott
that
designated.
the calls
Barnard
were
was
being made
Barnard asked if
Mott
of the
On
Service
September 14,
Office in
Boston and
site-location equipment.
equipment
He
inquired whether
not available.
the Secret
it had
any
have such
Barnard
of
the
Ron Anderson.
operation.
day (September
He explained
the situation
cloned calls.
customers
the same
were among
Barnard advised
those being
the source
Anderson
defrauded by
that COB
the cloning
would
legal department
have
to check
with
being
told
by
Anderson
COB's
that COB's
-7-7-
customers
were
to
see
After
being
employees went
to Cranston,
the
Instead of
afternoon of
The
calls
were
frequencies,
frequencies
obtained by
used
to make
the
international
from SNET.
Using these
crew proceeded in
the van to
Anderson
was
(Dan Valios
cellular
and Rick
phone
conversations.
calls
Wade
and
also
testified
frequency of
listened
that
to
they
the
telephone
could
have
the
phone
conversations, but
that
the
audio interception
an
hour,
what
the tracking
equipment
pointed
to two
adjacent
calls
-8-8-
Anderson
called Agent
Barnard
after
the
source
of what
had
been done.
The
following day,
September 15,
Barnard
the
left
side
Cranston,
Rhode
September
15.
of
the building
Island.
Federal
The
at
156
warrant
agents arrested
Woodbine
was
Street,
executed
defendants on
on
the
THE ISSUES
THE ISSUES
__________
government.
The
first
is the
government's argument,
not
standing to
government
challenge
argues that it
privacy interest
proving it.
the legality
of
had no duty
the warrant.
to assert a
The
lack of
the burden of
the
defendant
had
no
privacy interest
-9-9-
in
the
clear that
premises,
908
F.2d
1032, 1034-36
(1st Cir.
a case.
The following
or, at least,
apartment
He
partners in
where the
facts can
Defendant Peraz
crime.
fraudulent
Alzamora
moved into
the
phone calls
were made
and
remained there
several
in
days with
defendants
were
the
executed.
the blinds
apartment
when
drawn.
the
warrant
Both
was
us to decide
In
(1972),
found
no
standing and
the
408 U.S.
government
224, 226-27
of appeals had
had not
challenged
an
opportunity
Bouffard,
________
conceded
privacy
917
to
show
standing.
F.2d
673
(1st Cir.
In United States v.
__________________
1990),
the
government
on the record.
We held:
"Considerations
of fundamental
fairness
order to afford
the defendant an
warrant remand
in
opportunity to attempt
to
Id. at 677.
___
directly critical
of
standing
the
government's
failure
to address
-10-10-
in
the
district court.
1500 (10th
offers
In
Cir.
1991), the
court
held:
F.2d 1497,
"The
government
the argument is
waived."
U.S. 204
Morales,
_______
761,
737
F.2d
(1981).
763
(8th
Accordingly,
on Steagald v.
____________
In United States v.
_________________
Cir.
1984)
had
privacy
that
expectation
of
positions
trial
legitimate
the
and
appellant's
of
the
government
on
appeal
alleged
inconsistent
has taken
at
concerning
disclaimer
of
(footnote
government has
to challenge
appellant's
standing.
very
least,
findings.
remand
to
the
Because, however,
district
for
factual
will
assume
purely
it
is
court
not, we
legal:
There
Communications
broadcasting
"intercepting"
was
no
Privacy
on
violation
Act because
radio
We
are
aware that
communication
cellular phones
there are
are not
the
locating
frequency
of
does
a transmitter
not
under
the
18 U.S.C.
cases
Electronic
Electronic
2510
holding that
protected by the
constitute
et seq.
______
users of
Fourth Amendment.
-11-11-
See In Re Askin, 47
___ ____________
(4th Cir.
1995); United
______
operative facts
in these
The
place before
the
radio portion of a
Pub.
L. No. 103-414
case,
more took
radio
frequency;
202(a)(1).
place than
those
amendment in 1994.
Moreover,
just locating
tracking
the
in the instant
the source
broadcast
in
deciding
what
necessary to our
of a
frequency
appears to
See
___
This
appears
to
be
thorny
question
decision.
We
not
court's
A)
A)
The
first
issue
is
whether
the
employees
of
when they
phone.
for
the
Under 18
employee
communication
transmission
U.S.C.
of
services
of
wire
2511(2)(a)(i), it is
provider
whose
or
of
wire
facilities are
electronic
not unlawful
or
electronic
used
in
communication,
the
"to
activity which
-12-12-
that
service . . . ."
provider of
authorizes
such
employees
"to
provide
information,
facilities,
. ."
It
is evident
from
Secret Service
being
defrauded by
that COB's
Agent Barnard
the cloning
employees, on
that COB
learning
customers were
operation, had
a statutory
phone.
If
the
COB
employees
were
government
agents,
however,
the
authority.
agents of
Jesus,
_____
not
the government?
apply to private
action unless
private party
acted as
Various
whether a
tests
private entity
have
developed
has acted as
for
determining
a government
(5th
Cir.
Lambert,
_______
1990).
The Sixth
Circuit
agent.
669, 673
in United States v.
_________________
follows:
A person
agent
merely
because
there
as a police
was
some
-13-13-
antecedent
and
the
Coleman,
_______
contact
police.
628 F.2d at
between that
person
United
States v.
___________________
965.
Rather, two
facts must
must
be shown.
have
First,
instigated,
encouraged
the police
Id.
___
Second,
have engaged in
the intent of
or
the
assisting the
Id. at
___
89.
The Ninth
critical factors
in the 'instrument or
that, "two
of the
United States v.
________________
In United States
_____________
v. Attson, 900
_________
F.2d 1427,
1990), the
[A]
party
the
fourth
formed
the necessary
is
subject
intent
to
to assist
in
the
Ninth
tive functions;
or she
in other words,
intends to engage in
seizure.
However,
that
is
was
a search or
when he
acting for
independent
the
of
reason
such
governmental purpose.
1996), the
Tenth Circuit
"affirmatively
84 F.3d 1240,
encourage or
instigate the
1243 (10th
Cir.
government must
private action."
-14-14-
circuits may
be pertinent in different
government's role
search, its
over
in
instigating or
intent and
the search
circumstances:
the degree
and the
the extent
participating
of control
private party,
of the
in
the
it exercises
and the
extent to
the
district court's
through
probably
COB
findings of
lens adjusted
historical facts
for clear
error
is made
viewing.
have been no
It is
search made by
inquiring
about equipment
for
locating the
source of
the
defrauded.
But there is
the search
answer
Barnard's query
to
about
that it
whether
COB had
did, but he
source-
would have
to
Rhode Island.
back.
He did
employees
went
Anderson
not do
to
so.
Instead, he
Cranston,
Rhode
call him
Island,
and
two
started
ignorant
signals on their
Their
to investigate
own.
and
search
for the
-15-15-
motivation
Barnard was
sources
of
the
radio
transmitted
phone calls.
perpetrated
U.S.C.
on its
It
search:
had a
to prevent a
customers.
That is
fraud from
being
the purpose
of 18
facts
legitimate independent
review of the
historical
case.2
B)
B)
probable cause.
Keeping
by Special Agent
Barnard lacked
review, we
Paragraph 1
that
his
routine
identifies
duties
the affiant
include
"the
and
explains
investigation
of
of access devices."
The
premises to be searched.
the
____________________
2.
be
cause.
decide whether
applied
to the
legal
a similar de
__
question
to the
novo standard
____
at
issue here:
the
without deciding
Because the
more searching
that the
defendants' appeal
de novo
__ ____
Ornelas de
_______ __
standard, we
novo standard
____
applies.
-16-16-
Paragraph
3 states
that
the
government
(Secret
an investigation of a telephone
fraud scheme in
and addresses of
the
Paragraph
access device,
section
of
which we
this
have already
opinion.
In
MIN numbers as an
covered in the
paragraph 6,
the
Facts
affiant
the
location
described
telecommunications fraud
state
that individuals
in
paragraph
scheme.
have
to
This paragraph
"captured" valid
commit
goes on to
MIN and
ESN
fraudulently to
by way
Paragraph 7 explains
is
programmed on
(EPROM)",
located
"Erasable
on a
Programmable Read
computer
chip
combination
Only
within the
Memory
general
Paragraph 9 describes
which a
calls
customer pays a
which are
numbers.
billed
a "call
to the
by
long-distance phone
stolen credit
-17-17-
sell" operation
card account
being
made
by unidentified
Street,
Cranston,
Rhode
phones.
It is then stated:
Island,
After accessing a
the
individuals
individual
from
from
"cloned"
long distance
enters
156 Woodbine
cellular
carrier
credit
card
Subsequently,
the
individual
company of
the revenues
air time
and
card company
for revenues
tolls.
due them
for
credit for
billing, thereby,
The
issue the
the fraudulent
loss.
Paragraph 11
received information
Secret Service
from Cheryl
Maher,
such
as MCI,
Sprint
and AT&T
and
are using
recites a telephone
Mott, a
same
information
recites
further
concludes:
"Mott
recited in
paragraph
information
received
credit
card
Paragraph 12
11.
from
Paragraph
Mott.
13
It
indicated that
Paragraph
Agent
Barnard
Rodriguez
14 states
(affiant)
of the
that on
spoke with
Financial
September 14,
Secret
Crimes Division
1995,
Service
Agent
of the
Secret
-18-18-
Service.
Rodriguez told
cellular
phone accesses a
Sprint
or AT&T
through an
number
him that
when
a caller
access number,
using a
such as MCI,
the credit
by Cellular One.
card
Paragraph 15
Cellular
One, had
its telephone
international telephone
This
established that
switch office
twenty-five
telephone
monitor the
Rhode Island.3
numbers
were
Rhode Island.
The total
time of the
24-hour period.
Manager
of Cellular
provided a
Paragraph
One
partial list
calls was
151 hours,
17 states
Rhode Island,
of telephones
that Maher
(Fraud
see paragraph
11),
that appear to
have
been cloned and are being used in the Cranston, Rhode Island,
area.
training of
the
affiant.
Paragraph
21 is
the
affiant's
____________________
3.
It
hearing
Woodbine
is clear
that
from
this
Street had
Wade's testimony
was
done
after
_____
been pinpointed
cloned calls.
-19-19-
the
as
at the
suppression
apartment at
the source
156
of the
Based on our
the
facts leading
de novo review
__ ____
to the
of the affidavit
district court's
and
conclusion that
hold that
The
next issue
Defendant claims
that the
is
the validity
of the
warrant.
because it
The warrant
I make
this
affidavit in
further
support of
bedroom first
residence located
Street, Cranston,
described
as
Rhode
three
brown sides.
door
on
the
building.
left
On
the
as
one
The
faces
first floor
the
are two
side of the
first
floor.
(Name,
address
premises,
or brief
property
or
description of
premises
to
be
searched)
of
the
residence
SEARCH
SEARCH
WARRANT
WARRANT
located at 156 Woodbine
St.,
Cranston,
RI,
CASE NUMBER:
further
020816
described as a three story,
wood framed building with
1:95-M-
-20-20-
TO:
Secret Service
and
_____________________
any Authorized
made before
me
James M. Barnard
who has
______________________________
or
known
x
____
on the property
as
(name,
or premises
description
and/or
location)
located
Cranston,
RI,
at 156
further
of the
Woodbine St.,
described
as
with a
on a post next to
the
as one
door on
building.
the left
On
the
faces the
first floor
are two
side of the
first
floor.
particularity
point
requirement
of the
Fourth
Amendment.
They
out correctly that the number 156 was on the left post
stairs.
the
in
determining
correct.
right from
left."
"But
This
statement
is not
post next to the door on the left as one faces the building."
_____________________________________
(Emphasis added).
Defendant
also argues
that,
because
of the
two
-21-21-
have called
to
be
searched.
The
record
of
the suppression
hearing
apartment was to
be searched and
proceeded directly to
it.
There
containing
posts
on
were
two
the apartment
either
entrance landing.
entrance doors
to be
side of
The post
the
searched.
steps
to
the
building
There
were two
when you
on the right-hand
get
to the
side of
the
steps as
The
post on
the left
Barnard entered
He took
of the
door.
side carried
step
to the
right
number 158 on
the number
a short
hallway to an
it.
and proceeded
building.
156 on
it.
down
on
The number
be confused by
address
The
by the
-22-22-
that any
uncertainty raised by
law teaches
numbers did
the
description of
the
location to
be searched
In Bonner
______
stated:
general searches by
the police.
The
test
adequacy
of
the
location
to be
for
determining
description
searched is
of
the
the
whether the
enable the
and identify
effort, and
whether
there
is
any
reasonable
is United
______
we
Id.
___
at 866
(citations omitted).
be
searched and
omitted
its
from the
Bonner the
______
The
address, however,
We upheld
the validity
warrant, stating:
We hold
that
the Bonner
residence
was
particularity,
and
address
although
inadvertently
reasonable
premises
the
omitted,
there
probability
that
might
affidavit
address.
warrant.
In
be mistakenly
was
was
another
searched;
-23-23-
no
was
of the
Id. at 867.
___
1828
No. 96-
F.3d 3,
We are
decided
aware, of
the basis of
district court
United States v.
________________
Leon, 468
____
U.S.
approach,
and
897
(1984).
therefore,
We do
there
not
is
no
reach
need
the
to
Leon
____
discuss
Defendant
abused
its
accuracy
then
discretion
of Cellular
denied
independently
hearing
also
claims
when
that
it raised
One's Boston
defendant's
motion
examined.
The
discloses that
the
this is
the
Tracking Equipment,
but
record
have
of
not exactly
issue
court
of
to
the
district
the
the
equipment
suppression
what happened.
The district court questioned COB employee Wade about how the
how
the determination
what he
in laymen's
terms."
us
Wade
then explained
The court
then
asked
or did not
tell Barnard.
The court's
examination of
Q.
So that before
you
hadn't shown
the warrant
the
-24-24-
issued,
equipment to
the
Wade
explained how
you
A.
Q.
Did they
equipment you
were going
to
kind of
use to
do
you
the
equipment you
were
this?
A.
No.
Q.
Did
they
reliability
of
ever
the
ask
going to use?
A.
No.
doubt
on
equipment,
equipment
little.
its part
but
as
as to
the
seeking
reliability of
what
the tracking
information
to the government,
about
the
We agree
came
too late
16(a)(1)(C)
defendant had
inspecting
to trial.
the
question to Wade.
Under
a right
Clearly,
equipment
until
there is nothing
Crim. P.
the tracking
that the
the motion
Fed. R.
to inspect
the
for consideration.
equipment prior
about
with the
not err in
the
court's
last
to even suggest
in any way.
that
We hold
denying defendant's
motion.
in
determining
the amount
of
-25-25-
loss.
The
district
court
$190,275.33.
defrauded
This
to pay restitution
sum
represented the
telephone companies
would have
made legitimately.
of
Ordinarily,
the
property
taken,
amount
damaged,
that
been paid
Under U.S.S.G.
value
in the amount
of
the
if the
2B1.1,
or
destroyed.
The
pertinent part of
note 3 states:
the loss
need
issue."
subsection
(b)(1),
not
be determined
with
precision.
Defendants
assert
that
the
amount
used
was
processing
cellular
the calls
and
margin for
sentence
a profit
the various
in application note 2
of U.S.S.G.
2B1.1:
"Loss
does not include the interest that could have been earned had
We
fair
purchased.
-26-26-
We
discern no
error, plain
or otherwise,
in the
-27-27-