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Full Opinion
United States Court of Appeals
For the First Circuit
No. 99-2061
UNITED STATES,
Appellee,
v.
VLADIMIR CABRERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
James T. McCormick for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Stephanie S. Browne, Assistant United States Attorney and
Margaret E. Curran, United States Attorney, were on brief for
appellee.
April 5, 2000
STAHL, Circuit Judge. Defendant-appellant Vladimir
Cabrera appeals his conviction for possession of a document-
making implement under 18 U.S.C. § 1028 (1994 & Supp. 1996).
Specifically, he (a) asserts that under a proper interpretation
of § 1028, the prosecution presented insufficient evidence upon
which to ground a conviction and (b) challenges the district
court's decision to limit the scope of cross-examination of a
particular government witness. We affirm.
Background
In early 1998, Cabrera and an accomplice, Joseph
Medeiros, engaged in a scheme to produce counterfeit
identification documents, including Massachusetts and Rhode
Island driver's licenses, Massachusetts and Rhode Island state
employee identification cards, Rhode Island and Puerto Rico
birth certificates, U.S. Department of Health and Human Services
Social Security cards, and U.S. Department of Justice
Immigration and Naturalization Service (“INS”) Resident Alien
cards. The government's evidence supported the conclusions that
Cabrera employed a computer, a document scanner, a printer, and
commercial software that together could be used to scan, alter,
and reproduce documents. When used in conjunction with this
hardware and software, computer files containing previously
scanned official documents stripped of all identifying material
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served as digitized “templates” from which forgeries could
easily be fabricated. First, using the aforementioned
equipment, Cabrera scanned genuine documents into his computer,
saved the images on his computer hard drive and on floppy disks,
removed or altered the identifying information and photographs
on the documents, and then printed the documents on photographic
paper. Medeiros then inserted new identifying information onto
the documents, trimmed the counterfeits, and laminated them as
appropriate. Cabrera kept the computer equipment at his home,
while the equipment Medeiros used was stored in a suitcase that
the two owned jointly.
On June 10, 1998, U.S. Secret Service Agents searched
Cabrera's apartment pursuant to a warrant. They found Cabrera's
computer equipment, a board used for measuring and trimming
documents, Microsoft's “Picture It!” software, which Cabrera
apparently had used to create the counterfeit materials, the
digitized templates, and sundry fake documents in various stages
of completion.
Subsequently, on January 20, 1999, a federal grand jury
in the District of Rhode Island returned a two-count indictment,
charging, inter alia, that Cabrera possessed document-making
implements with the intent that such implements be used in the
production of false identification documents, in violation of 18
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U.S.C. § 1028(a)(5). At the relevant time period, the statute
defined “document-making implement” to mean
any implement or impression specially
designed or primarily used for making an
identification document, a false
identification document, or another
document-making implement.1
Count One -- the only count relevant to this appeal2 -- was based
on Cabrera's possession of the computer, printer, and scanner.
During Cabrera's trial, Secret Service Agent James
Mooney testified for the government regarding the templates
found on Cabrera's hard drive and on the diskettes. Agent
Mooney also described the software installed on Cabrera's
computer and how it could be used for scanning, altering and
reproducing documents. On cross-examination, Agent Mooney
acknowledged that computers were available to the public and
that they had uses aside from those of which Cabrera stood
accused. But when Cabrera's counsel then attempted to further
1
This language has since been amended and now defines
“document-making implement” as “any implement, impression,
electronic device, or computer hardware or software, that is
specifically configured or primarily used for making an
identification document, a false identification document, or
another document-making implement.” 18 U.S.C. § 1028(d)(1) (1994
& Supp. 1998) (as amended).
2
Cabrera was acquitted on a second count involving the
possession of rub-on letters, a laminating machine, and plastic
laminating pouches.
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examine him regarding the general uses to which anyone could put
computer equipment, the court intervened, and the following
sidebar exchange regarding the meaning of § 1028's “primarily
used” prong ensued:
THE COURT: Congress might have been a little
bit more precise in their definition, but as
I read that definition in the context of
this statute, I read it as referring to the
possession and the intent of the possessor
in putting it to use. So I think that the
general use that anyone might put a computer
to -- in this case, a computer to, is not
relevant.
. . . .
MR. McCORMICK [Cabrera's Counsel]: I wanted
to ask generally if [computer equipment] was
primarily used for the making of --
THE COURT: No, because that primarily refers
to the possession of this individual, not
the general public.
At the trial's close, the district court instructed the
jury only that:
[a]s used in these instructions, the term
“document making implement” means any
implement or impression specially designed
or primarily used for making an
identification document, a false
identification document or another document
making implement.
The instructions did not specify any particular meaning for the
terms “specially designed” or “primarily used.” Although
Cabrera's counsel did not object to these instructions, the
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government did object, stating that they did not adequately
specify that the statute referred to Cabrera's primary use of
the equipment rather than the general uses to which any computer
user primarily would put such equipment.
Meanwhile, Cabrera had moved for judgment of acquittal
on both counts, arguing that “on the evidence presented, it
ha[d] not been shown that the computer, printer and scanner
referred to in the indictment [we]re document making
implements.” The district judge reserved judgment on the
motion. On May 21, 1999, the jury convicted Cabrera on Count
One, and the district judge denied his motion for a judgment of
acquittal on that count. Cabrera appeals.
Discussion
We address, in turn, the sufficiency of the evidence
supporting Cabrera's conviction and the district court's
decision to curtail Cabrera's cross-examination of Agent Mooney.
Both issues turn on the interpretation of former 18 U.S.C.
§ 1028.
I. Sufficiency of the Evidence
Cabrera argues first that his computer system was not
proven to constitute a document-making implement within the
meaning of the statute, because “there was no proof, either
directly [sic] or by inference, that [it] was . . . specially
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designed or generally used to produce identification documents,
false identification documents or other document making
implements.” (Emphasis added.) To determine the sufficiency of
the evidence, we "canvass the evidence (direct and
circumstantial) in the light most agreeable to the prosecution
and decide whether that evidence, including all plausible
inferences extractable therefrom, enables a rational factfinder
to conclude beyond a reasonable doubt that the defendant
committed the charged crime." United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997).
A. “Specially Designed”
We first find that Cabrera's computer system was
“specially designed” for the production of identification
documents. As an initial matter, we hold that the statute's
text is unambiguous. It does not exclude from its reach
implements that could have legitimate other uses if not altered
by the perpetrator's modifications. Cabrera suggests that the
“specially designed” prong refers not to a defendant's specific
implements, but to implements that as a class are uniquely
configured to fabricate false identification documents. His
interpretation is not tenable. Neither the statute nor Cabrera
provides any basis upon which a court could determine the proper
level of generality at which to define the class. Should we
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look to the class of “computers fitted with scanners, printers,
document-altering software and digitized templates”? The class
of all “computers”? All “electronic implements”? All
“implements” of any sort? Nothing in § 1028 requires such
arbitrary classification. Rather, the statute unambiguously
asks the fact-finder to consider whether the item that the
defendant is charged with possessing was “specially designed”
for producing forgeries.
Asserting that the statute is ambiguous, Cabrera notes
that courts may look to a statute's legislative history when its
language itself is not conclusive and clear. See, e.g.,
Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S.
454, 461 (1987); Arnold v. United Parcel Serv., Inc., 136 F.3d
854, 858 (1st Cir. 1998). But even if § 1028 were unclear (and
we believe it is not) Cabrera's resort to its legislative
history would be unavailing. The House Judiciary Committee's
report on the False Identification Crime Control Act of 1982 --
in which the disputed “specially designed” language was first
introduced -- stated that “the committee intend[ed] to exclude
implements such as office photocopying machines, which are
designed for more general and legitimate purposes.” H.R. Rep.
No. 97-802, at 11 (1982), reprinted in 1982 U.S.C.C.A.N. 3519,
3530. This language might support an argument that standard
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computer equipment, bereft of any special-purpose hardware or
software, would fall beyond the statute's reach. Perhaps an
offender could, it would seem, have used an ordinary word
processor and an ordinary printer with ordinary paper to produce
false documents, just as an offender could have used an office
photocopier to do so, without having violated former § 1028.
But Cabrera's computer arrangement, unlike a standard office
photocopier, was specifically designed to facilitate
counterfeiting. A modern computer is not analogous to an
“office photocopying machine[]” circa 1982, which in Congress's
view likely could not be altered or specialized, but rather to
a modern photocopier fitted with software and hardware that
render it uniquely suited to produce illicit materials. We have
no reason to believe that such a device would escape § 1028's
reach simply because both it and its 1982 analogue were called
“photocopiers.” A photocopier configured with special-purpose
hardware or software may be “specially designed” for the
fabrication of identifying documents, and so may a similarly
configured computer.
In fact, the more relevant portion of the legislative
history is that which precedes the language quoted above. The
House committee report noted that the term “document-making
implement” would include “text in a distinctive type face and
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layout that when reproduced [is] part of an identification
document.” Id. This statement, of course, accurately describes
the templates, which were merely computer files containing
digital images of “text in a distinctive type face and layout.”
Alone, each template formed “part of an identification document”
and together with the inserted data, each would constitute a
complete document.
Cabrera contends that his system was not specially
designed for the fabrication of false identification documents,
emphasizing that the hardware at issue -- namely, the computer,
printer, and scanner -- were not uniquely suited to such
activity. However, the evidence adduced at trial permitted a
jury to conclude that Cabrera's system also included software,
such as the “Picture It!” program, which testimony indicated
“could be used . . . to accept scann[ed] images and also to
place those images onto computer-produced documents.” Most
tellingly, the system also included digitized templates of
various official identification documents stored on Cabrera's
hard drive and floppy disks. A jury viewing this paraphernalia
as a whole could reasonably have deemed the system “specially
designed . . . for making . . . a false identification
document.”
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B. “Primarily Used”3
Cabrera urges that the “primarily used” prong of the
“document-making implement” definition refers to an item's
“general usage” rather than the particular use to which a
defendant put it. The government acknowledges that if it was
required to prove that as a general matter, computers, scanners,
and printers are primarily used for making identification
documents or false identification documents, Cabrera's
conviction must be overturned because the court was presented
with no evidence supporting that conclusion. The government
contends, however, that the relevant inquiry focuses not on the
uses of some hypothetical user, but on Cabrera's own primary use
of the computer system. We share the government's view, and
find that a jury reasonably could have found that Cabrera's
equipment was “primarily used” for the fabrication of documents
as that term is set forth in former § 1028.
First, as the government notes, Congress could have
used a word such as “generally” in lieu of “primarily” if it
intended the meaning that Cabrera proposes. Congress's choice
3
Judge Lynch agrees with the foregoing analysis regarding
the “specially designed” prong. She also believes that a jury
reasonably could have convicted Cabrera under the “primarily
designed” prong, but would employ a standard different from that
posited below. Thus, she joins the opinion to this point, as
well as Part II and the opinion's conclusion, but declines to
join this section.
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not to use that term suggests that it did not intend the inquiry
to focus on an item's typical use within society. Relatedly,
the section's legislative history suggests that Congress fully
expected § 1028 to cover implements that were “generally” used
for purposes other than the fabrication of documents. The House
Judiciary Committee report noted that “specialized paper or ink”
could constitute document-making implements under the “primarily
used” prong. H.R. Rep. No. 97-802, at 11, reprinted in 1982
U.S.C.C.A.N. at 3530. Paper and ink -- even “specialized” paper
and ink -- are not “generally” used for the production of false
identification documents, but could, in a given case, be
“primarily used” in the service of such ends by a particular
defendant. The committee's remarks, then, lend credence to the
government's case-specific interpretation of the “primarily
used” prong.
Moreover, the treatment which former § 1028 has been
accorded by the courts suggests that “primarily used” refers to
the defendant's primary use of the item in question. While no
court appears to have analyzed the meaning of this prong, it has
been found to encompass an assortment of paraphernalia not
“generally” used for illicit purposes, including laminating
machines, plastic laminating pouches, packets of rub-on letters,
erasers, tape, scissors, and small photographs. See, e.g.,
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United States v. Castellanos, 165 F.3d 1129, 1130 (7th Cir.
1999); United States v. Pearce, 65 F.3d 22, 24-26 (4th Cir.
1995).
Finally, as the government points out, at least one
other statute with language similar to § 1028's has been treated
in a manner consistent with the government's position here. The
statute prohibiting fraud in connection with an “access device”
addresses, inter alia, “device-making equipment,” and defines
that term to mean “any equipment, mechanism, or impression
designed or primarily used for making an access device or a
counterfeit access device.” 18 U.S.C. § 1029(e)(6) (1994 &
Supp. 1998) (emphasis added). The Eleventh Circuit, in applying
this statute, examined whether a defendant's mobile phone was
primarily used to make an access device or a counterfeit access
device. See United States v. Morris, 81 F.3d 131, 132-34 (11th
Cir. 1996). Although the court ultimately found that it was
primarily used by the defendant for making telephone calls and
that it therefore did not fall within the ambit of § 1029(e)(6),
the court's very pursuit of the inquiry reflected its belief
that what mattered was the particular use to which the defendant
put the device, not its “general” use within society. See id.
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The evidence showed that Cabrera repeatedly used his
computer, scanner, printer, software, and digitized templates to
create false identification documents. This system was used in
conjunction with laminates, Exacto blades, a supply of
photographic-quality paper, and genuine identification
documents. There was no evidence to demonstrate that Cabrera
used his system for any other purpose. The jury thus reasonably
could have found that this equipment was “primarily used” for
Cabrera's document production.
II. Curtailment of Agent Mooney's Cross-Examination
Cabrera also challenges the district court's refusal
to allow his attorney to cross-examine Mooney regarding the
“primary use” to which other individuals generally put
computers. In view of the preceding ruling, this testimony
would have been irrelevant, and therefore inadmissible. See
Fed. R. Evid. 401; Fed. R. Evid. 402. “We generally will
reverse a district court's admissibility determinations under
Federal Rule[] of Evidence 402 . . . only in extraordinarily
compelling circumstances.” United States v. Rosario-Diaz, 202
F.3d 54, 70 (1st Cir. 2000). No such circumstances warrant
reversal here.
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Conclusion
For the reasons stated herein, we AFFIRM Cabrera's
conviction.
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