Unpublished Disposition, 848 F.2d 199 (9th Cir. 1986)

MEMORANDUM^* 

Camper, Grant, and Smith were convicted on one count of conspiracy and nine counts of credit card fraud. Camper argues that the indictment was defective on the conspiracy count and that the Secret Service was not authorized to investigate credit card fraud. Camper, Grant, and Smith all argue that the police lacked probable cause to arrest them. Smith further argues that he did not receive Miranda warnings and did not confess voluntarily. Finally, Camper further argues that the evidence was insufficient to sustain his conviction on the counts of credit card fraud.

In U.S. v. Grant and U.S. v. Smith, we affirm. In U.S. v. Camper, we affirm in part, reverse in part, and remand for resentencing.

Camper alleges that the indictment's reference to 18 U.S.C. 1029(b) (2) nullifies the allegation of conspiracy. We review the sufficiency of an indictment de novo. United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.), cert. denied, 107 S. Ct. 668 (1986).

We need not decide whether section 1029(b) (2) creates an independent conspiracy offense. Even if Camper were correct in asserting that section 1029(b) (2) is but a penalty enhancement statute, the indictment's reference to that section would not be ground for reversal. Camper has not alleged that the government's case hinges on the language of section 1029(b) (2) as compared with that of 18 U.S.C. § 371, only that the government cited the wrong statute. The government's mistake would be a mere error in citation. Federal Rule of Criminal Procedure 7(c) (3) provides that " [e]rror in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice." Camper has not alleged he was misled to his prejudice.

Camper asserts that section 1029 is defective because it authorizes the Secret Service to investigate credit card fraud. His theory is that Congress previously enacted a statute limiting the Secret Service to a few well-defined duties. This theory has no merit. As the government points out, Camper relies on a statute that establishes the Secret Service's uniformed division. See 3 U.S.C. § 202. Congress plainly has authorized the Secret Service to investigate credit card fraud, in 18 U.S.C. § 3056 as well as in section 1029 itself.

Camper, Grant, and Smith argue that they were arrested without probable cause, that the warrantless searches were not incident to a lawful arrest, and that evidence obtained through those searches should have been suppressed. Smith makes this argument for the first time on appeal. Arguments not raised before the district court generally cannot be made on appeal. United States v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983). Smith does not qualify for any exception to this rule. See United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983). We do not entertain Smith's argument.

The test for probable cause is the same under Nevada and Ninth Circuit law. Probable cause exists if the facts and circumstances known to the officer would warrant a prudent person in believing that a suspect has committed a felony (crime in Ninth Circuit). Compare Washington v. State, 94 Nev. 181, 576 P.2d 1126, 1128 (Nev.1978) (felony) with United States v. Green, 783 F.2d at 1364, 1367 (9th Cir.) (crime), cert. denied, 476 U.S. 1185 (1986). We review de novo a district court's determination of probable cause. We review for clear error a district court's findings of fact underlying a determination of probable cause. Green, 783 F.2d at 1367.

The district court in this case adopted the magistrate's findings on probable cause. The magistrate based his findings by carefully making credibility determinations and weighing testimony; none of his findings is clearly erroneous.

On February 18, 1986 Officer Shephard was on duty at McCarran International Airport. He received a radio dispatch that three black men and one black woman had stolen two pairs of slacks from the Steve Gordon's Men's Store inside the airport. Officer Shephard went to the store, where the store owner's wife advised him that her husband and an employee had followed the suspects in the direction of the airport rotunda. She also stated that the four suspects were the same four who, on February 9, 1986, had made purchases at the store using a counterfeit credit card.

Officer Shephard next located Mr. Gordon, who was standing next to Camper. Mr. Gordon and an employee, Mr. Young, identified Camper as one of the suspects who had participated in the theft of the slacks. While escorting Camper to the police substation, Officer Shephard received a radio dispatch that Mr. Young had spotted another suspect in the airport concourse. When Officer Shephard arrived there, Mr. Young identified Grant as another suspect who had participated in the theft of the slacks.

Based on Mrs. Gordon's statements, Officer Shephard knew the make up of the group that had stolen the slacks. Moments later he had two eyewitness identifications of Camper as a suspect in the theft. Shortly after that he had an eyewitness identification of Grant as another suspect. These facts and circumstances would warrant a prudent person in believing that Camper and Grant had participated in the theft. Officer Shephard had probable cause to arrest them for aiding and abetting grand larceny. See Nevada Revised Statutes Secs. 205.220 (theft of property worth $100 or more), 193.120 (defining felony), and 195.020 (defining principals to crimes).

In addition, Officer Shephard himself had investigated the credit card incident the week before. His recollection of that incident would allow him to credit Mrs. Gordon's statement that the suspects in both incidents were the same. These facts and circumstances would warrant a prudent person in believing that Camper and Grant had participated in the credit card crime. Officer Shephard had probable cause to arrest them for aiding and abetting forgery and fraudulent use of a credit card. See NRS Secs. 205.740 (forgery), 205.760 (fraudulent use), 193.120 (defining felony), and 195.020 (defining principals to crimes).

Smith contends that the trial court should have suppressed evidence against him on grounds that agents did not give him Miranda warnings and that they made coercive promises to elicit his statements. We review for clear error the district court's findings that the defendant received and voluntarily waived his Miranda rights. See United States v. Doe, 819 F.2d 206, 209 (1987). We review for clear error the district court's factual account of what happened during the defendant's interrogation, but we review de novo the district court's conclusion that a confession was voluntary under the due process clause. United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987).

Agent Brewster testified that he read Miranda rights to Smith the afternoon of Smith's arrest. The district court found "that Mr. Smith did not testify truthfully" and "that he was Mirandized." Considering the inconsistencies in Smith's testimony, these findings were not clear error.

In ruling on the voluntariness of Smith's statements, the district court compared the testimony of Smith and Agent Brewster. According to Smith, Agent Brewster had promised that in return for assistance Smith would not be indicted. Agent Brewster denied he made this or any offer other than that he would bring cooperation to the attention of the U.S. Attorney, an offer he said he made to all defendants. We give special deference to the district court's findings underlying voluntariness when, as in this case, they rest on testimony. Wolf, 813 F.2d at 975. In this case the district court believed Agent Brewster's testimony. The district court's findings were not clearly erroneous.

Given these findings, Smith's confession was voluntary for purposes of due process. As we have said before, "A simple representation to a cooperating confessor that the fact of his cooperation will be made known to prosecuting authorities is insufficient to render a confession involuntary." United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir. 1977). That simple representation was the only one made to Smith, and his interrogation does not otherwise smack of "coercive government misconduct" or "police overreaching." Colorado v. Connelly, 107 S. Ct. 515, 520 (1986).

Camper argues that the evidence was insufficient to sustain his conviction on counts II-V and VII-XI. We review a conviction to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could fairly find the defendant guilty of the offense beyond a reasonable doubt. United States v. Murray, 751 F.2d 1528, 1534 (9th Cir. 1985).

The jury convicted Camper on nine counts of violating 18 U.S.C. §§ 2 and 1029(a) (1). A person violates section 1029(a) (1) if he "knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices." Pursuant to 18 U.S.C. § 2, a person who "aids, abets, counsels, commands, induces or procures" the commission of an offense--such as violating section 1029(a) (1)--is punishable as a principal. Count II charged Camper with credit card fraud in renting a car. Count III charged Camper with credit card fraud in buying airplane tickets. The other counts charged Camper with credit card fraud in making cash withdrawals.

The evidence was sufficient to convict Camper of credit card fraud in buying airplane tickets. At the airport he was in possession of four airplane tickets to Los Angeles in the names of four people with surname Napoletano. Another suspect, Valerie Hall, had purchased those tickets. She had done so with a counterfeit credit card bearing the name Margie Napoletano. Camper, in conversation with Officer Shephard, allowed that the tickets were Camper's, that "M. Napoletano" was Camper's girlfriend, and that she was at the gate. By these actions Camper aided and abetted Hall in committing credit card fraud. His criminal intent was established by the circumstantial evidence, including his lying to Officer Shephard. See United States v. Reese, 775 F.2d 1066, 1072 (9th Cir. 1985). Camper consequently is punishable as a principal for violating section 1029(a) (1).

The evidence was not sufficient to convict Camper of credit card fraud in renting a car (count II) or in making cash withdrawals (counts IV-V, VII-XI). The $8,500 he was carrying cannot be traced to particular withdrawals, or even to credit card fraud in general. This cash cannot serve to convict Camper on individual counts of fraud. The clothing he was carrying, even if bought through other instances of credit card fraud, does not link him to renting a car or making cash withdrawals.

Mrs. Gordon's statement that Camper seemed to be the leader of the group does bear on his role in credit card fraud. As the government puts it, this evidence shows Camper's knowledge of and participation in "a single course of conduct." But Camper was convicted for his role in the "course of conduct," under the catch-all count of conspiracy. Camper did not appeal his conspiracy conviction on the basis of insufficient evidence.

The evidence does not sufficiently, specifically connect him to counts II, IV-V, and VII-XI, even as an aider or abetter. Camper was not present at any of the crimes, and the government does not show that he consciously assisted in the planning of any of these crimes. See United States v. McKoy, 771 F.2d 1207, 1216 (9th Cir. 1985). To aid and abet commission of an offense, it was necessary that Camper "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed." Reese, 775 F.2d at 1072 (sources omitted). As to any one count, the government did not prove that Camper did these things. As to any one count, a rational trier of fact could not fairly find Camper guilty of the offense beyond a reasonable doubt.

In U.S. v. Grant and U.S. v. Smith, we affirm. In U.S. v. Camper, we affirm Camper's convictions on counts I and III, reverse his convictions on counts II, IV-V, and VII-XI, and remand for resentencing.