U.S. v. Picquet ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________
No. 91-3839
___________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VERONICA PICQUET,
Defendant-Appellant
___________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
___________________________________________________________________
(May 29, 1992)
Before KING and WIENER, Circuit Judges and LAKE,* District Judge.
SIM LAKE, District Judge:
18 U.S.C. § 1029(a)(2) makes it a crime to obtain "anything of
value aggregating $1,000 or more" during a one-year period by use
of an unauthorized access device. The issue in this appeal is
whether sales taxes are includable in the $1,000 aggregate value.
The indictment against defendant-appellant, Veronica Picquet,
alleged that Hibernia National Bank mailed VISA credit cards to its
customers. After some of the credit cards were returned to
Hibernia as undeliverable, Rhonda Robinson, a retrieval clerk
employed by Hibernia, stole several of them. Gerald Robinson
*
District Judge for the Southern District of Texas, sitting
by designation.
received two of the stolen credit cards from Rhonda Robinson, and
gave them to Veronica Picquet. The indictment alleged that Picquet
used the credit cards "to purchase approximately $1,016.81 worth of
goods and services."
Picquet moved to dismiss the indictment because the $1,016.81
alleged in it impermissibly included sales taxes. The Government
stipulated that if taxes were excluded, Picquet's total charges
would not exceed $1,000.** After the district court denied her
motion to dismiss, Picquet entered a conditional plea of guilty
reserving her right to appeal. She now appeals her conviction
arguing that the district court lacked subject matter jurisdiction
because the value of the goods and services obtained with the
credit cards was less than the $1,000 minimum required for prosecu-
tion under 18 U.S.C. § 1029(a)(2).
Picquet's principal argument is that because the statutory
language "anything of value aggregating $1,000 or more" is
ambiguous, the court should look to legislative intent and rules of
construction, which she argues indicate that sales taxes should not
be included. To interpret 18 U.S.C. § 1029(a)(2) Picquet directs
the Court to 15 U.S.C. § 1644(a), which prohibits using a fraudu-
lently obtained credit card "to obtain money, goods, services, or
**
Picquet argued before the district court and in her brief
before this court that 18 U.S.C. § 1029(a)(2) required that the
indictment allege that she acquired at least $1,000 in goods or
services. She did not contend that the government's proof was
inconsistent with the allegation that she purchased $1,016.81 worth
of goods and services. In essence, her argument is that the
government could not have framed a charge under § 1029(a)(2).
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anything else of value. . . ." She argues that this language
indicates that "value" as used in § 1029(a)(2) means "other items
not ordinarily perceived as money, goods, or services." (Brief for
Appellant at p. 7; emphasis added) Picquet argues that since taxes
are not such an item, their value is not includable in calculating
the $1,000 jurisdictional minimum required by 18 U.S.C.
§ 1029(a)(2).
This argument fails for several reasons. First, Picquet was
not indicted under 15 U.S.C. § 1644(a). The statute she was
indicted under, 18 U.S.C. § 1029(a)(2), prohibits the use of
unauthorized access devices to obtain "anything of value aggre-
gating $1,000 or more" (emphasis added) and contains no language
restricting "anything of value" to money, goods or services.
Second, the fact that Congress chose to omit the restrictive
examples of money, goods and services when it later enacted 18
U.S.C. § 1029(a), indicates that Congress intended a more expansive
reading of "anything of value" in 18 U.S.C. § 1029(a). Finally,
even were the court to look to 15 U.S.C. § 1644(a) as a guide to
interpreting 18 U.S.C. § 1029(a), Picquet has cited no authority,
and the court has found none, that a thing of value under 15 U.S.C.
§ 1644(a) is limited to the value of goods and services exclusive
of sales taxes.
By arguing that sales taxes should be excluded from the aggre-
gate value of "anything" obtained with an unauthorized access
device, Picquet is essentially arguing that a sales tax payment is
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not a thing of value. Although neither party cited it as authori-
ty, this court in United States v. Gordon, 638 F.2d 886 (5th Cir.),
cert. denied, 452 U.S. 909, 101 S.Ct. 3038 (1981), interpreted the
meaning of "a thing of value" as used in 18 U.S.C. § 641, which
makes it a crime to steal "any record, voucher, money, or thing of
value" from the United States. Gordon stole marijuana that the
Coast Guard seized and was preparing to destroy. He argued that
the marijuana was not a thing of value because it had no value to
the United States, which had paid to have it destroyed. Despite
the penal nature of the statute, the court held that the term
"value" must be liberally construed. The court held that a thing
of value need not have value to the person from whom it was stolen;
it must merely have value to someone, including the thief who stole
it. Gordon, 638 F.2d at 889.
The sales taxes at issue in this case have value to a number
of persons and entities. First, because Picquet was required to pay
sales taxes when she purchased the goods and services with the
access devices, she obtained the value of tax payments when she
acquired the goods and services. A purchaser of goods or services
incurs sales tax liability at the time of purchase, and such a
condition precedent to consummating the transaction is inextricably
intertwined with the act of obtaining the goods or services. It is
of no lesser importance than payment of the basic consideration.
Second, Picquet's credit card transactions imposed an obligation on
Hibernia Bank to pay not only the cost of the goods and services
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Picquet obtained, but also sales taxes on them. Hibernia Bank's
obligation to pay merchants the sales taxes on the goods and
services Picquet obtained from them is a thing of value both to the
merchants and Hibernia. Finally, the sales taxes incurred by
Picquet have value to the taxing authorities.
Although Picquet maintains that the language of § 1029(a) is
ambiguous and the ambiguity should be resolved in her favor, the
meaning of a thing of value has been given a reasonably definite
meaning in Gordon and is not ambiguous. The rule of lenity
requiring ambiguities to be resolved in favor of a defendant does
not require that the language of penal statutes be read without
common sense. United States v. Mikelberg, 517 F.2d 246, 252 (5th
Cir. 1975). A common-sense reading of 18 U.S.C. § 1029(a) compels
the conclusion that the cost of a good or service and the cost of
sales taxes combine to aggregate the value of the goods and
services that Picquet acquired with unauthorized access devices.
Because sales taxes are includable in determining the
aggregate value of the goods and services Picquet obtained with
unauthorized access devices, her conviction under 18 U.S.C.
§ 1029(a)(2) is AFFIRMED.
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