Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

MEMORANDUM^** 

Kris Allen Sorensen appeals his conviction for conspiracy to commit credit card fraud in violation of 18 U.S.C. § 1029. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

We AFFIRM.

Sorensen's first argument on appeal is that the district court improperly denied his motion for a mistrial. This court reviews a district court's denial of a motion for mistrial for an abuse of discretion. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988). Sorensen contends that the government's inquiry on cross-examination into his possible involvement in a co-conspirator's prison escape plot was improper and unfairly prejudicial. The government claims that the questioning was proper because the alleged plot was deceitful in nature and, therefore, probative of Sorensen's character for truthfulness under Rule 608(b).¹  Fed.R.Evid. 608(b). Because we find any error made by the district court to be harmless, we need not address these arguments on appeal.

When a nonconstitutional error is alleged, reversal is only warranted "if it is more probable than not that it materially affected the verdict." United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). Overwhelming evidence of guilt can render an error harmless. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir. 1990); Whitworth, 856 F.2d at 1287; United States v. Barrett, 703 F.2d 1076, 1082 (9th Cir. 1983); United States v. Potter, 616 F.2d 384, 393-94, (9th Cir. 1979), cert. denied, 449 U.S. 832 (1980). Overwhelming evidence exists to support the finding of guilt in this case. In addition to the impugning testimony proffered by a co-conspirator, the evidence indicates that Sorensen posed as Robert Miller in his attempt to carry out the fraudulent transaction at Bronco Motors. Any error made by the district court in allowing the government's limited questioning of Sorensen concerning his involvement in a prison escape plot was harmless.

Sorensen also challenges the sufficiency of the evidence upon which he was convicted of conspiracy to commit credit card fraud, claiming that, because the credit information was actually retrieved by the auto dealership, no "access device" was "used" under 18 U.S.C. § 1029. Sorensen's argument involves an issue of statutory interpretation and is therefore reviewed de novo by this court. Washington Pub. Utils. Group v. District Court, 843 F.2d 319, 324 (9th Cir. 1988).

18 U.S.C. § 1029(e) (1) defines "access device" in pertinent part as:

any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, ...

As the Fifth Circuit recognized in United States v. Brewer, 835 F.2d 550 (5th Cir. 1987), Congress intended the definition of "access device" to encompass technological advances. Id. at 553 (holding that long distance telephone access codes fall within the 1029(e) (1) definition). Accordingly, "access device" should be construed broadly to encompass innovative schemes perpetrated by criminals who use unauthorized information to defraud. Sorensen's co-conspirator, Robin Wills, used Robert Miller's Social Security number to allow the auto dealer to access directly Robert Miller's credit information. Here, the Social Security number functioned as a "means of access" to "obtain goods." The Social Security number, therefore, is clearly an access device under 18 U.S.C. § 1029(e) (1).

Sorensen further claims that no access devise was "used" in the fraudulent auto lease transaction because the Boise dealership already had the credit information at its disposal as the result of a prior attempt to obtain an auto at an Oregon dealership. This does not change the paramount fact that when Sorensen signed for the auto in Boise, the transaction was ultimately based upon the unauthorized use of Robert Miller's credit information. Accordingly, we hold that Sorensen did use an access devise under Sec. 1029.

The judgment of the district court is AFFIRMED.