Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1989)

MEMORANDUM^** 

Jack Thomas Poet appeals his conviction in a bench trial for possession of unauthorized access devices used in making long-distance telephone calls. 18 U.S.C. § 1029(a) (2) and (3). This court has jurisdiction of the defendant's timely appeal. 28 U.S.C. § 1291.

During 1987 and 1988, Mr. Poet endeavored to put together an international business venture. In that effort, he used hundreds of telephone access numbers, most of them Sprint numbers, that billed his calls to the unsuspecting owners of those access numbers.

Mr. Poet testified that he was employed by Kelgre Investment Corp. out of Maryland to arrange the business deal and that Kelgre supplied him with the access numbers. He said that he never questioned Kelgre about the source of the numbers and was not alarmed at the high turnover rate because each number was valid for only a short period of time.

In the course of working on the transaction, Mr. Poet supplied unauthorized access numbers to several other individuals, one of whom was Walter Sheridan. Mr. Sheridan eventually became alarmed at the large quantity of numbers and asked Mr. Poet where they came from. According to Mr. Sheridan's testimony, Mr. Poet refused to answer, became angry and stopped supplying him with numbers. Mr. Sheridan pursued the matter further which lead to an investigation by Sprint and by federal agents, including an official search of Mr. Poet's residence in his presence. The search uncovered 850 access numbers in defendant's possession, 729 of which were Sprint numbers assigned to other customers. Even after the search, Mr. Poet testified that he did not ask Kelgre about the source of the numbers.

Further investigation revealed that from April to June, 1989 alone, Mr. Poet had made calls totalling $7,801.84 that were billed to unsuspecting customers. Following a one-day bench trial, Mr. Poet was convicted for profiting in excess of $1,000 in the use of unauthorized access devices, 18 U.S.C. § 1029(a) (2), and for possessing 15 or more unauthorized access devices. 18 U.S.C. § 1029(a) (3). He appeals that conviction.

The mens rea required by 18 U.S.C. § 1029 is to possess or use unauthorized access devices "knowingly and with intent to defraud." In the legislative history of the statute, Congress provided that "willful blindness," or a "knowing state of mind.... [in which] the actor was aware of a high probability of the existence of the circumstance," but remains deliberately blind to it, meets the mens rea requirement. H.R.Rep. No. 98-894, 98th Cong., 2nd Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3689, 3702.

The defendant argues that the "willful blindness" standard reduces the government's burden of proof and, therefore, is unconstitutional. Willful blindness, like any element of every crime, must be proven beyond a reasonable doubt to support conviction. Consequently, the statute is not unconstitutional for the reason asserted by the defendant. Further, the Supreme Court has said that willful blindness is equivalent to knowledge for purposes of criminal conviction. See the Supreme Court cases discussed in United States v. Jewell, 532 F.2d 697, 701 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976).

In any case, Judge Byrne stated that he found beyond a reasonable doubt that Mr. Poet acted with knowledge and intent to defraud. He said nothing about willful blindness. Reporter's Transcript, Vol. II at 128-30 (C.D.Calif. July 25, 1989).

The defendant argues that the evidence was insufficient to convict him. This court must view the evidence in the light most favorable to the prosecution and overturn the conviction only if no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Marchini, 797 F.2d 759, 766 (9th Cir. 1986), cert. denied, 479 U.S. 1085 (1987). The district court had undisputed evidence of the volume of numbers used by Mr. Poet and the cost of the calls made. Mr. Poet never told Mr. Sheridan that Kelgre had supplied him with the numbers. Instead, he became angry at Mr. Sheridan's persistent questioning. The judge listened to and assessed the credibility of both Mr. Sheridan and Mr. Poet. Further, Mr. Poet was not a naive newcomer to the business world. He was an experienced businessman. The judge was not irrational in finding that Mr. Poet knew that the access numbers were unauthorized and used them with intent to defraud.

The judgment of the district court is AFFIRMED.