United States v. Soape ( 1999 )

Revised April 14, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-41250
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLEN PERRY SOAPE, JR,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
March 9, 1999
Before KING, Chief Judge, POLITZ and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Defendant-appellant Allen Perry Soape, Jr. appeals his
conviction and sentence for conspiracy to fraudulently use
counterfeit access devices, unauthorized access devices, and
access devices issued to another person; fraudulent use of
unauthorized access devices; fraudulent use of counterfeit access
devices; fraudulently effecting transactions with access devices
issued to another person; use of a fictitious name or address;
and false use of a social security account number. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On August 2, 1995, defendant-appellant Allen Perry Soape,
Jr. was transferred to the Jefferson County Jail from the
Angelina County Jail, where he had been incarcerated after his
arrest on charges unrelated to the instant case. Soape turned
over to Jefferson County authorities a number of credit and
identification cards, and both Soape and the jail official who
processed him executed a property log. While Soape was an inmate
at the Jefferson County Jail, Steven Michael Alexander contacted
Captain Michael Hebert, an internal affairs investigator for the
Jefferson County Sheriff’s Department, to complain that Soape
possessed credit cards issued in Alexander’s name. Hebert
retrieved Soape’s personal effects from the property room at the
jail and found the following documents:
1. Two Direct Merchants Bank MasterCard credit cards in
the name of Steven M. Alexander;
2. One NationsBank/NCNB Interact Pulse card in the name of
Steven M. Alexander;
3. One Radio Shack American Technology Store card in the
name of Steven M. Alexander;
4. One Boilermaker’s National Health and Welfare Fund card
in the name of Steven M. Alexander;
5. One NationsBank MasterCard credit card in the name of
Steven M. Alexander, Jr.; and
6. One Texas Department of Public Safety temporary
driver’s license in the name of Steven Michael
Alexander.
2
Soape was charged by an indictment filed in the Eastern District
of Texas with (1) one count of conspiring with Joy A. Lovett1 to
violate 18 U.S.C. § 1029(a)(1), (2), and (5); (2) three counts of
fraudulently using unauthorized access devices in violation of 18
U.S.C. § 1029(a)(2); (3) one count of fraudulently using a
counterfeit access device in violation of 18 U.S.C. § 1029(a)(1);
(4) three counts of fraudulently effecting transactions with
access devices issued to another person in violation of 18 U.S.C.
§ 1029(a)(5); (5) one count of using a fictitious name or address
in violation of 18 U.S.C. § 1342; and (6) three counts of using a
false social security account number in violation of 42 U.S.C.
§ 408(a)(7)(B). Soape pleaded not guilty to all counts and
proceeded to trial pro se.
The evidence at trial consisted of the following. First,
Alexander testified that he met and befriended Soape in the
1970s. During this time, Soape had access to Alexander’s home
and personal effects and sometimes stayed at Alexander’s
residence. From 1989 to 1992, Alexander permitted Soape to use
two of his credit cards, but he ultimately requested their
return, paid off the remaining balances, and canceled the cards.
Alexander also testified that at one point, Lovett informed him
1
Lovett and Soape were married prior to trial, and the
indictment was amended to read “Joy A. Soape, aka Joy A. Lovett.”
In order to distinguish Mrs. Soape from her husband, however,
this opinion refers to her as “Lovett” and to Mr. Soape as
“Soape.”
3
that Soape had several credit cards in Alexander’s name. With
respect to the documents retrieved from the Jefferson County
Jail, Alexander stated that he never applied for, or had any
knowledge of, the Direct Merchants Bank MasterCards, the
NCNB/Interact Pulse card, the Radio Shack card, or the
NationsBank MasterCard, and that he did not recognize some of the
addresses the applications and statements for these accounts
listed as his. Furthermore, he testified, he never possessed the
temporary driver’s license found among Soape’s personal effects,
and it bore an address with which he was unfamiliar.
In addition to Alexander, several bank employees and
government investigators testified regarding the specific
documents at issue. Susan Dare of Medras, Inc., Direct Merchants
Bank’s parent company, testified that someone had applied by
phone for a credit card account in the name of Steven M.
Alexander, using his social security account number and an
address in Lufkin, Texas, and that the Direct Merchants Bank
MasterCards found in Soape’s possession were issued on that
account. Don Walton of NationsBank testified that someone opened
a NationsBank checking account in the name of Steven M. Alexander
of Lufkin, Texas with the same social security account number and
that the NationsBank/NCNB Interact Pulse card found in Soape’s
possession was issued on that account. Two wire transfers had
been made from that account to an account in Soape’s name at
First National Bank in Port Neches, Texas. Walton also stated
4
that an individual had applied for a NationsBank Gold MasterCard
account using the name Steven M. Alexander of Orange, Texas, with
Alexander’s social security account number, and that NationsBank
had issued a credit card on that account. After the account was
opened, a request form seeking to add the names “J.A. Lovett” and
“A.P. Soape” to the account was submitted, and additional Gold
MasterCards were issued in those names. The form included the
signatures of the primary cardholder, Alexander, and the two
individuals who were to be added. Walton further identified two
Wal-Mart credit card receipts on the NationsBank MasterCard in
J.A. Lovett’s name, two rental car contracts charged on the
NationsBank MasterCard in Alexander’s name, a NationsBank
MasterCard charge to STS Audio Video in the name of J.A. Lovett,
and a convenience check, written on the same NationsBank
MasterCard account, from Steven M. Alexander, Jr. to J.A. Lovett.
Next, Jan Williamson of the Texas Department of Public Safety
testified that two licenses had been issued in the name of Steven
Michael Alexander, but that one license bore a post office box
address and Soape’s photograph as well as Alexander’s true
address. Two United States Postal Service employees testified
that someone representing himself to be Steven Alexander applied
for the post office boxes in Lufkin and Orange, Texas that
appeared on the Direct Merchants Bank MasterCard statements and
the NationsBank Gold MasterCard application, respectively.
Finally, Nancy Grinnell of the Social Security Administration
5
testified that the social security account number used in the
accounts described above was assigned to Steven Michael
Alexander, Jr.
In addition, several store employees testified about
specific usages of the cards at issue. Kristi Maxon, a Wal-Mart
employee, stated that both Wal-Mart receipts were from
transactions using NationsBank MasterCards issued in the name of
J.A. Lovett; one carried the signature of J.A. Lovett and the
other of “S.A. and maybe Steven Alexander.” James Bailey, a
manager of STS Audio Video, stated that he sold a satellite
system to a customer who presented a credit card in the name of
J.A. Lovett and that the signature on the receipt was “J.A.
Lovett.” He also prepared a work order directing his employees
to install the system at Joy Lovett’s residence. According to
Bailey, the customer provided the address and signed the work
order “Joy Lovett.” Bank employees testified that more than
$1000.00 was charged on the NationsBank MasterCard account in
1993, 1994, and 1995 and on the Direct Merchants account in 1995.
Finally, prosecution witness Melissa McCaa, Lovett’s
daughter, took the stand. McCaa recalled that Soape had used a
driver’s license bearing Alexander’s name but his own photograph
to make either a deposit or a withdrawal at NationsBank in
Lufkin, Texas and that he had paid for a hotel room and a rental
car in Las Vegas, Nevada with a NationsBank MasterCard in
Alexander’s name. She confirmed that Lovett possessed a
6
NationsBank MasterCard in the name of J.A. Lovett and had used it
to withdraw money from a Pulse automatic teller machine, make
purchases at Wal-Mart, and buy a satellite system. Finally,
McCaa identified the signature and address on the STS receipt as
Lovett’s; the telephone number on the STS work order as Soape and
Lovett’s home number; the telephone number on the NationsBank
wire transfer documents, the NationsBank MasterCard application,
the NationsBank MasterCard request form, and the Las Vegas car
rental agreements as Soape and Lovett’s cellular telephone
number; the signatures on the NationsBank MasterCard form
requesting additional cards as Lovett’s and Soape’s; and the
signature endorsing the convenience check as Lovett’s.
Soape called several defense witnesses whose testimony
suggested that Alexander had authorized Soape to use his name and
credit cards. An officer at the Angelina County Jail, Lieutenant
Price, stated that he contacted a person whose name appeared on a
credit card in Soape’s possession and was advised by that person
that Soape had permission to use the card. Although he could not
remember the identity of that person, Alexander’s name sounded
familiar. Captain Hebert testified that he talked to Price after
Price had contacted this person, and Price indicated that he had
spoken with Alexander and that Alexander had given Soape
permission to use the cards. Finally, Melinda Knost told the
jury that she observed Alexander give Soape a temporary driver’s
license and credit cards and sponsored a power of attorney, which
7
she had notarized, granting Soape permission to act in
Alexander’s affairs.
The jury convicted Soape on all counts. The district court
sentenced him to eighteen months in prison and a three-year term
of supervised release on each of the thirteen counts against him,
all sentences to run concurrently. It also imposed a special
assessment of $50.00 for each count for a total of $650.00 and
restitution in the amount of $18,632.60. Soape appealed his
conviction and sentence.
II. DISCUSSION
Soape raises four distinct challenges to the judgment of the
district court. First, he argues that the evidence is
insufficient to support his convictions for fraudulent use of
counterfeit access devices under 18 U.S.C. § 1029(a)(1) and for
conspiracy under 18 U.S.C. § 371. Second, he contends that some
of the counts in the indictment are multiplicitous with other
counts. Third, he claims that the district court violated his
Sixth Amendment right to compulsory process by denying certain of
his requests for subpoenas. Finally, he charges that the
district court denied him due process and the effective
assistance of counsel by prohibiting contact with McCaa. We
address each of these contentions in turn.
8
A. Sufficiency of the Evidence
1. Section 1029(a)(1)
According to Soape, the evidence is insufficient to support
his § 1029(a)(1) convictions because the term “counterfeit access
device” does not encompass otherwise legitimate access devices
procured by fraud, but only devices that were actually created or
manufactured by persons without the right to do so. The district
court’s interpretation of a federal statute is a question of law
that we review de novo. See United States v. Courtney, 979 F.2d
45, 48 (5th Cir. 1992).
We begin, of course, with the statute itself. Section
1029(a)(1) provides that “[w]hoever . . . knowingly and with
intent to defraud produces, uses, or traffics in one or more
counterfeit access devices . . . shall, if the offense affects
interstate or foreign commerce, be punished as provided in
subsection (c) of this section.” The statute defines “access
device” as including “any card . . . that can be used, alone or
in conjunction with another access device, to obtain money,
goods, services, or any other thing of value, or that can be used
to initiate a transfer of funds.” Id. § 1029(e)(1). A
“counterfeit access device” is “any access device that is
counterfeit, fictitious, altered, or forged, or an identifiable
component of an access device or a counterfeit access device.”
Id. § 1029(e)(2).
9
We do not believe that this definition excludes credit cards
obtained through the submission of false information. The term
“counterfeit” means “[m]ade in imitation of something else;
‘imitation’, not genuine.” 3 OXFORD ENGLISH DICTIONARY 1027 (2d ed.
1989), while “fictitious” denotes something “[c]ounterfeit,
‘imitation’, sham; not genuine,” 5 id. at 873, and “forged”
refers to an object “[m]ade in fraudulent imitation of something
genuine; counterfeit, false, spurious,” 6 id. at 69. Soape’s
credit cards are fraudulent imitations of genuine cards, which
must not only be issued by authorized banks and credit card
companies (as Soape’s undoubtedly were), but also obtained with
truthful information. In other words, a “genuine” credit card
must be legitimately and honestly obtained; Soape’s cards, being
but imitations of these, are “counterfeit,” “fictitious,” and
“forged.”
Our reading of § 1029(a)(1) is in accord with our own
precedent and that of our sister circuits. In United States v.
Brewer, 835 F.2d 550 (5th Cir. 1987), a hacker called a long
distance telephone company’s toll free phone number, punched in
possible access code combinations until he found valid ones that
allowed him to obtain telephone service, and sold the codes to an
undercover agent. See id. at 551-52. We held that his actions
violated § 1029(a)(1). The codes were “counterfeit,” we said,
because they were “fictitious” and “forged.” See id. at 553.
This was so even though Brewer’s codes were genuine:
10
[W]e are unpersuaded by Brewer’s broader argument that a
legitimate access code cannot ever be “counterfeit.” Brewer
argues that the codes he obtained were genuine code numbers
placed in the [long distance telephone company’s] computer
and thus were not “counterfeit.” However, an equally
plausible interpretation is that Brewer did not “obtain” the
codes from the computer but fabricated codes that just
happened to be identical to the [company’s] codes. By
analogy, someone who manufactures phony credit cards is no
less a “counterfeiter” because he happens to give them
numbers that match valid accounts.
Id. at 554. Unlike Brewer, of course, Soape did not himself
fabricate counterfeit access devices. But he unquestionably
caused their manufacture. Confronted with the same situation,
the Ninth Circuit concluded in United States v. Brannan, 898 F.2d
107 (9th Cir. 1990), that the term “counterfeit access device,”
as used in § 1029(a)(1), encompasses access devices acquired
through the submission of false information:
What Brannan did was use fictitious information to cause the
victim companies to issue counterfeit cards. By his
conduct, Brannan caused the manufacture of an invalid
device. The conduct was functionally equivalent to the
manufacture of a counterfeit device by Brannan himself. We
believe that Congress by this statute intended to proscribe
use of such devices.
Because Brannan’s conduct does constitute employment of
counterfeit access devices under the statute, we uphold the
conviction. According to Webster’s New International
Dictionary, (2d ed. 1941), the word “counterfeit” denotes
“that which is made in imitation of something with an intent
to deceive.” Brannan here initiated and contributed to the
process of making illegitimate credit cards, even if he did
not personally perform every step of the procedure.
Id. at 109. In the same way, Soape counterfeited cards as
effectively--and perhaps more so--as if he had personally
manufactured them.
11
The legislative history of § 1029 supports our broad
interpretation of the definition of “counterfeit access device.”
First, we note that Congress intended to draft a broad statute so
as to close loopholes in existing federal legislation addressing
credit card abuse and counterfeiting. See S. REP. NO. 98-368, at
2-5 (1984), reprinted in 1984 U.S.C.C.A.N. 3647, 3648-51; H.R.
REP. NO. 98-894, at 4-5, 6-8, 19 (1984), reprinted in 1984
U.S.C.C.A.N. 3689, 3689-91, 3692-94, 3705; United States v.
Hughey, 147 F.3d 423, 434 (5th Cir. 1998). Second, the
legislative history indicates that a card containing some valid
components may still be counterfeit within the meaning of
§ 1029(a)(1). See S. REP. NO. 98-368, at 3, reprinted in 1984
U.S.C.C.A.N. 3649 (“Cards are counterfeited through two popular
techniques. Blank plastic cards may be made to look like
legitimate cards through ‘silkscreening’ or photo offset
printing, and valid account numbers obtained by fraudulent means
are embossed onto the card. Alternately, a lost or stolen card
may be embossed with a new account number.”); H.R. REP. NO. 98-
894, at 7, reprinted in 1984 U.S.C.C.A.N. 3693 (“One common
counterfeiting technique utilizes ‘silkscreening’ or offset
printing of the registered design or service marks of an
organization followed by embossing fraudulently obtained valid
account numbers on a card.”). Similarly, the cards in this case
contained fraudulently obtained names and account numbers; they
differ from the counterfeit cards described in the House Report
12
only in that they were physically manufactured by a bank or
credit card company rather than by the defendant himself. That,
we think, is a distinction without a difference. See Brannan,
898 F.2d at 109-10 (“The House Report evinces an intent that the
definition of counterfeit access devices be construed broadly and
we believe that the language may be fairly interpreted to
sanction the widespread fraudulent inducement of credit card
generation by legitimate issuers as well as the relatively rare
homemade creation of convincing replicas.”). Because Soape’s
credit cards are counterfeit access devices, the evidence was
sufficient to support his § 1029(a)(1) conviction.2
2. Section 371
Soape also argues that the evidence is insufficient to
support his conviction for conspiracy under 18 U.S.C. § 371
because the government failed to show that he and his only
2
At oral argument, Soape’s counsel also presented a
relatively skeletal contention that credit cards obtained through
the submission of false information cannot be both “counterfeit”
under 18 U.S.C. § 1029(a)(1) and “unauthorized” under 18 U.S.C.
§ 1029(a)(2) and that therefore, if we affirm Soape’s conviction
under the former statute, we must vacate his convictions under
the latter. A “counterfeit” card, counsel asserted, is by
definition “fictitious,” and § 1029(a)(2), which criminalizes
certain uses of “unauthorized” cards, presupposes a genuine card
that is later used without authority. We rejected a similar
argument in Brewer, concluding that the terms “counterfeit” and
“unauthorized” as used in § 1029 are not mutually exclusive. See
Brewer, 835 F.2d at 553; see also Brannan, 898 F.2d at 110
(“[T]here is no indication in the legislative history that
Congress intended subsections (a)(1) and (a)(2) to be mutually
exclusive.”); United States v. Gugino, 860 F.2d 546, 549 (2d Cir.
1988) (“[I]t does not follow that the same access device cannot
be both unauthorized and counterfeit at the same time.”).
13
alleged co-conspirator, Lovett, agreed to engage in unlawful
conduct and that Lovett had the requisite intent to commit the
offenses that were allegedly the object of the conspiracy. In
short, Soape claims that he is not guilty of conspiracy because
he conspired with no one. We review such a claim in the light
most favorable to the verdict, accepting all credibility choices
and reasonable inferences made by the jury, see United States v.
McCord, 33 F.3d 1434, 1439 (5th Cir. 1994), and must uphold the
conviction if a rational jury could have found that the
government proved the essential elements of the crime charged
beyond a reasonable doubt, see United States v. Ruiz, 986 F.2d
905, 908 (5th Cir. 1993). It is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt. See
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). This
standard of review is the same regardless of whether the evidence
is direct or circumstantial. See United States v. Cardenas, 9
F.3d 1139, 1156 (5th Cir. 1993).
To establish a violation of 18 U.S.C. § 371, the government
must prove beyond a reasonable doubt (1) that two or more people
agreed to pursue an unlawful objective, (2) that the defendant
voluntarily agreed to join the conspiracy, and (3) that one or
more members of the conspiracy committed an overt act to further
the objectives of the conspiracy. See United States v. Campbell,
64 F.3d 967, 974 (5th Cir. 1995). Moreover, the government must
14
prove “at least the degree of criminal intent necessary for the
substantive offense itself.” United States v. Osunegbu, 822 F.2d
472, 475 (5th Cir. 1987) (quoting United States v. Ortiz-Loya,
777 F.2d 973, 981 (5th Cir. 1985)) (internal quotation marks
omitted). Although such intent may not be proven solely by a
family relationship, see United States v. Ismoila, 100 F.3d 380,
389 (5th Cir. 1996), it may be shown by circumstantial evidence,
see United States v. Beckner, 134 F.3d 714, 719 (5th Cir. 1998),
and “when inferences drawn from the existence of a family
relationship or ‘mere knowing presence’ are combined with other
circumstantial evidence, there may be sufficient evidence to
support a conspiracy conviction.” United States v. Williams-
Hendricks, 805 F.2d 496, 503 (5th Cir. 1986).
After a careful review of the record, we believe that there
is sufficient evidence to support the conclusion that Lovett
agreed with Soape to engage in unlawful conduct and that she had
the requisite intent to commit the underlying offenses, each of
which requires that the defendant act “knowingly and with intent
to defraud.” 18 U.S.C. § 1029(a)(1), (2), (5). Lovett signed a
request form, on which her own cellular phone number appeared as
the phone number of the primary cardholder, to add herself to a
MasterCard account in Alexander’s name. She used the credit card
issued on that account on a number of occasions, including the
charging of $1400.00 at STS Audio Video and $207.16 at Wal-Mart;
in addition, someone used her card to charge $249.12 at Wal-Mart,
15
signing the receipt “S.A. and maybe Steven Alexander.” Lovett
also endorsed a convenience check for $1200.00, purportedly
written by Alexander on the NationsBank MasterCard account but
bearing an address in Lufkin, Texas, a city in which Alexander
did not live. There are, of course, innocent explanations for
Lovett’s behavior; for example, Alexander could have, as Soape
claims, authorized Lovett’s charges on his account, or Lovett
could have been her husband’s trusting dupe, honestly believing
that his friend was willing to subsidize her Wal-Mart purchases
and satellite system and neglecting to notice or question the
appearance of her own phone number as the primary cardholder’s
and the mistake in Alexander’s address on a check made out to
her. But, as we observed above, it is not necessary that
circumstantial evidence of conspiracy be wholly inconsistent with
every conclusion except that of guilt. See Lopez, 74 F.3d at
577. A rational jury could have concluded from the combination
of Lovett’s own actions and her close relationship with Soape
that she agreed with him to violate § 1029(a)(1), (2) and (5) and
that she had the requisite intent to commit the offenses
proscribed by those statutes. Compare Osunegbu, 822 F.2d at 476-
77 (finding sufficient evidence to support a wife’s conviction
for conspiring with her husband to steal mail where she had
called to inquire whether there was mail at a post office box to
which stolen packages were being sent, opened a box addressed to
someone else, removed the tags from the skirt inside, and thrown
16
away the box, from which the mailing label had been removed),
with United States v. Forrest, 620 F.2d 446, 450-51 (5th Cir.
1980) (finding insufficient evidence to support a wife’s
conviction for possession of stolen goods where she had done no
more than send a message to her husband, who was involved in the
criminal scheme, and accepted money from one of his employees at
his direction). The evidence is therefore sufficient to support
Soape’s conspiracy conviction.
B. Multiplicity
Soape also argues that Counts Two, Three, and Four of his
indictment, which charge violations of 18 U.S.C. § 1029(a)(2),
are multiplicitous with Counts Six, Seven, and Eight, which
allege violations of 18 U.S.C. § 1029(a)(5). We review issues of
multiplicity de novo. See United States v. Cluck, 143 F.3d 174,
179 (5th Cir. 1998) (citing United States v. Dupre, 117 F.3d 810,
818 (5th Cir. 1997)).
We turn first to the government’s contention that Soape has
waived the multiplicity issue. Although a complaint about the
multiplicity of sentences can be raised for the first time on
appeal, see United States v. Stovall, 825 F.2d 817, 821 (5th Cir.
1987) (citing Osunegbu, 822 F.2d at 481 n.26), a defendant must
raise multiplicity of the indictment as a defense before trial
pursuant to Federal Rule of Criminal Procedure 12(b)(2) to
preserve error, unless he can show cause for failing to do so,
17
see FED. R. CRIM. P. 12(f); Stovall, 825 F.2d at 821 (citing
United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980)).
From his brief, it appears that Soape’s multiplicity complaint
goes to his indictment alone, not to his sentence: In his
summary of argument, he states in a section labeled
“Multiplicity” that “[t]he government charged Mr. Soape with the
same offense three times; counts two, three, and four charge the
same crimes as do counts six, seven, and eight. The elements of
the offenses as charged are identical” (emphasis added). He
makes no mention of the sentences imposed on the allegedly
multiplicitous counts. Similarly, in the body of his brief,
Soape argues that the charges against him are multiplicitous but
does not refer to any multiplicity of sentence. It thus appears
that Soape’s challenge goes only to his indictment, and he was
therefore required to raise his multiplicity objection prior to
trial or show cause for failing to do so. He did not do so, and
he may not now challenge his convictions as multiplicitous. See
United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991);
United States v. Lemons, 941 F.2d 309, 316 n.4 (5th Cir. 1991);
United States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir. 1989).3
3
We are aware that some of our fellow courts of appeals
have treated a failure to challenge the multiplicity of an
indictment before trial somewhat differently. The Second Circuit
has reviewed a claim such as Soape’s where the defendant made no
multiplicity objection before trial but did so afterward in a
motion to set aside the verdict. See United States v. Chacko,
No. 98-1087, 1999 WL 101272, at *3-*4 (2d Cir. Mar. 1, 1999).
The Eighth Circuit has applied the plain error standard in a case
18
Even if Soape could challenge his indictment on appeal, the
§ 1029(a)(2) counts are not multiplicitous with the § 1029(a)(5)
counts.4 In general, “multiplicity” is the charging of a single
offense under more than one count of an indictment. See United
States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994). “The chief
danger raised by a multiplicitous indictment is the possibility
that the defendant will receive more than one sentence for a
single offense.” Cluck, 143 F.3d at 179 (quoting United States
v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985) (internal quotation
in which the defendant failed to challenge the multiplicity of
his indictment prior to trial. See United States v. Jackson, 155
F.3d 942, 947 (8th Cir. 1998). Unlike the defendant in Chacko,
however, Soape raises his multiplicity challenge for the first
time on appeal, and our court has consistently declined to review
such an argument for plain error, see, e.g., Galvan, 949 F.2d at
781 (“Galvan acknowledges not having filed the requisite pre-
trial motion; because she did not, she may not challenge the
convictions as multiplicious.”) (emphasis added).
4
The concurrent sentence doctrine would not apply in
Soape’s case. Under this doctrine, a tool of judicial economy,
the existence of one valid sentence makes unnecessary the review
of other sentences that run concurrently with it. See Stovall,
825 F.2d at 824. Applying the doctrine in a manner that removes
the adverse collateral consequences of the sentence, we have
adopted the policy of vacating the unreviewed sentence and
suspending imposition of that sentence. See id. We cannot apply
the doctrine at all, however, where not all the sentences are
concurrent, including where the defendant’s liability for a
special assessment depends on the validity of each of the
convictions. See Ray v. United States, 481 U.S. 736, 737 (1987).
While the district court sentenced Soape to concurrent 18-month
terms of imprisonment and three-year terms of supervised release
for each of the thirteen counts on which he was convicted, it
also imposed a $50.00 special assessment for each count. Soape’s
monetary sanctions therefore depend on the validity of each
count, including the allegedly multiplicitous ones, and the
concurrent sentence doctrine does not apply.
19
marks omitted). “[W]here the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299, 304
(1932); see Cluck, 143 F.3d at 179; Nguyen, 28 F.3d at 482. When
the legislature writes two criminal statutes, and each statute
contains an independent element from the other statute, we
presume that it intends to define two separate offenses that
generally entail two punishments. See United States v. Cruce, 21
F.3d 70, 73 (5th Cir. 1994) (citing Missouri v. Hunter, 459 U.S.
359, 367 (1983)). The fact that “there is a substantial overlap
in the proof offered to establish the crimes” does not prohibit
conviction and punishment for both. See Stovall, 825 F.2d at
822.
The focus in determining the issue of multiplicity is on the
statutory elements of the offenses, not on their application to
the facts of the specific case before the court. See United
States v. Flores-Peraza, 58 F.3d 164, 167 (5th Cir. 1995) (“The
question for the court to determine is not, as Flores argues,
whether his specific violation of § 1326(a) necessarily
encompassed or included his specific violation of § 1325(a), but
whether all violations of § 1326(a) constitute violations of
§ 1325(a).”) (citing United States v. Singleton, 16 F.3d 1419,
1422 (5th Cir. 1994)). Because § 1029(a)(2) and § 1029(a)(5)
20
each require proof of an element that the other does not, an
indictment charging that the same conduct violates both is not
multiplicitous.
Section 1029(a)(2) prohibits “knowingly and with intent to
defraud traffic[king] in or us[ing] one or more unauthorized
access devices during any one-year period, and by such conduct
obtain[ing] anything of value aggregating $1,000 or more during
that period . . . if the offense affects interstate or foreign
commerce.” Thus, to establish that Soape committed an offense
under this section, the government was required to prove the
following elements:
1. That Soape used one or more unauthorized access
devices;
2. That Soape thereby obtained something of value
aggregating at least $1000.00 during a one-year period;
3. That Soape acted knowingly and with intent to defraud;
and
4. That Soape’s conduct affected interstate or foreign
commerce.
Section 1029(a)(5) criminalizes “knowingly and with intent to
defraud effect[ing] transactions, with 1 or more access devices
issued to another person or persons, to receive payment or any
other thing of value during any 1-year period the aggregate value
of which is equal to or greater than $1,000 . . . if the offense
affects interstate or foreign commerce.” To establish that Soape
violated § 1029(a)(5), the government was required to prove the
following elements:
1. That Soape effected transactions with one or more
access devices issued to another person or persons;
21
2. That Soape thereby obtained something of value
aggregating at least $1000.00 during a one-year period;
3. That Soape acted knowingly and with intent to defraud;
and
4. That Soape’s conduct affected interstate or foreign
commerce.
The first element is clearly different. Conviction under
§ 1029(a)(2) requires proof that the access device be
“unauthorized,” meaning “lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud.” 18
U.S.C. § 1029(e)(3). Conviction under § 1029(a)(5) requires
proof that the access device be “issued to another person or
persons.” An access device can be “unauthorized” in the sense
that it is expired, revoked, or canceled, but not be issued to
another person. By the same token, an access device can be
issued to another person, and used to effect transactions with
intent to defraud, without having been lost, stolen, expired,
revoked, canceled, or even obtained with intent to defraud, for
example if one individual allows another to charge certain items
on his valid card, but the latter goes beyond the scope of that
authorization. Thus, even if Soape had properly preserved error,
his multiplicity argument would lack merit.
C. Sixth Amendment Right to Compulsory Process
Soape next contends that the district court’s denial of his
subpoena requests under Federal Rule of Criminal Procedure 17(b)5
5
The Federal Rules of Criminal Procedure create a
mechanism to realize the Sixth Amendment right to compulsory
process:
22
for the long distance telephone records of the Angelina County
Sheriff’s Department and for Robert Inselmann, an attorney who
had represented him in the past, violated his Sixth Amendment
right to compulsory process. We have “generally given district
courts wide discretion in determining whether subpoenas should
issue under Rule 17(b),” United States v. Ramirez, 765 F.2d 438,
441 (5th Cir. 1985), but only “within the limits imposed by the
Constitution,” id. (quoting United States v. Webster, 750 F.2d
307, 329 (5th Cir. 1984)). Whether the trial court’s refusal to
subpoena a witness violates the Sixth Amendment is, if course, a
question of law that we review de novo. See United States v.
Lampton, 158 F.3d 251, 255 (5th Cir. 1998).
The Sixth Amendment provides in relevant part, “In all
criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor.”
U.S. CONST. amend. VI. The Supreme Court has recognized that this
right “is an essential attribute of the adversary system itself”
and that “[f]ew rights are more fundamental than that of an
accused to present witnesses in his own defense.” Taylor v.
The court shall order at any time that a subpoena be issued
for service on a named witness upon an ex parte application
of a defendant upon a satisfactory showing that the
defendant is financially unable to pay the fees of the
witness and that the presence of the witness is necessary to
an adequate defense.
FED. R. CRIM. P. 17(b).
23
Illinois, 484 U.S. 400, 408 (1988).6 Accordingly, “at a
minimum . . . criminal defendants have the right to the
government’s assistance in compelling the attendance of favorable
witnesses at trial and the right to put before a jury evidence
that might influence the determination of guilt.” Pennsylvania
v. Ritchie, 480 U.S. 39, 56 (1987). The compulsory process right
is not absolute, however; when requesting a court to subpoena a
witness, a defendant has the duty to demonstrate the necessity of
the witness’s testimony. See United States v. Gonzales, 79 F.3d
413, 424 (5th Cir. 1996); see also United States v. Valenzula-
Bernal, 458 U.S. 858, 867 (1982) (holding that a defendant cannot
establish a violation of the constitutional right to compulsory
process merely by showing that he was deprived of certain
testimony but must make some plausible showing of how that
6
A defendant’s right to present witnesses in his favor is
also a fundamental element of due process of law, as the Supreme
Court decided when holding that the Sixth Amendment’s compulsory
process guarantee applies to the states:
The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so it may decide where the truth lies. Just as an
accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he
has the right to present his own witnesses to establish a
defense. This right is a fundamental element of due process
of law.
Washington v. Texas, 388 U.S. 14, 19 (1967). Soape claims only a
violation of his Sixth Amendment rights, not his Fifth Amendment
due process rights.
24
testimony would have been both material and favorable to his
defense). The government may respond by demonstrating that the
facts upon which the defense relies are inaccurate, or that the
evidence sought is immaterial, irrelevant, cumulative or
otherwise unnecessary. See Gonzales, 79 F.3d at 424; Webster,
750 F.2d at 329-30.
With these principles in mind, we turn to Soape’s subpoena
requests. First, Soape requested a subpoena duces tecum for the
long distance telephone records of the Angelina County Sheriff’s
Department. On appeal, Soape contends that the district court’s
refusal to issue such a subpoena prevented him from obtaining
evidence going to the heart of his defense, namely that Alexander
had authorized him to use the credit cards. The telephone
records, Soape claims, would have demonstrated that the
individual whom Price called and who told him that Soape had
permission to use the credit cards was, in fact, Alexander. This
evidence was critical, Soape argues, because Price testified at
trial that he could not remember that person’s identity and
because the government asserted during closing argument that
Price could not have called Alexander because he had dialed a
local number although Alexander lived outside Angelina County.
When requesting the district court to issue a subpoena,
however, Soape had a duty to demonstrate the necessity of the
telephone records. See Gonzales, 79 F.3d at 424. During the ex
parte hearing at which he asked the court to subpoena the
25
records, Soape made no effort to explain why they were necessary
to his defense. Indeed, even if he had made the same arguments
that he now does, he would not have met the threshold showing of
necessity. As Soape concedes in his opening brief, the records
could only have bolstered his contention that he acted with
Alexander’s permission. Such authorization is not, however, a
defense to the offenses with which Soape was charged. The
indictment alleged that Soape violated 18 U.S.C. § 1029(a)(1),
(2), and (5), 18 U.S.C. § 1342, and 42 U.S.C. § 408(a)(7)(B).7
Even if Alexander had given Soape permission to apply for and use
credit cards in his name, they still would be “counterfeit”
within the meaning of § 1029(a)(1) because they would have been
obtained through the submission of information that was false as
to Soape.8 Such cards also would be “unauthorized” under
§ 1029(a)(2) because they would have been obtained with the
intent to defraud banks and credit card companies into believing
7
In addition, it also charged him with conspiracy to
violate § 1029(a)(1), (2), and (5), in violation of 18 U.S.C.
§ 371, and aiding and abetting the violation of § 1029(a)(1),
(2), and (5), in violation of 18 U.S.C. § 2.
8
Don Walton of NationsBank testified that the bank never
would have issued the NationsBank MasterCard if it had known that
Soape was using Alexander’s name and social security account
number, even if Alexander had authorized him to do so, and would
have blocked the card immediately upon discovering that the
person who had applied for it had not used his true name and
social security account number. Thus, it appears that, at least
from the issuer’s point of view, a credit card obtained with
false personal information would not be genuine, even if the
applicant had the permission of the individual as to whom that
information was true.
26
that they were issuing cards to Alexander. Cf. United States v.
Jacobowitz, 877 F.2d 162, 165-67 (2d Cir. 1989) (holding that
even as to a credit card obtained by the cardholder from the
issuer without fraudulent intent, use of that card by a third
person to defraud the issuer with the consent of the holder
violates § 1029(a)(2)). And, of course, there is no doubt that
the cards would have been “issued to another person” within the
meaning of § 1029(a)(5) even if Alexander had approved Soape’s
conduct.
Proof of Alexander’s consent does not help Soape on his
other convictions, either. Section 1342 of Title 18, United
States Code, provides:
Whoever, for the purpose of conducting, promoting, or
carrying on by means of the Postal Service, any scheme or
device mentioned in section 1341 of this title or any other
unlawful business, uses or assumes, or requests to be
addressed by, any fictitious, false, or assumed title, name,
or address or name other than his own proper name, or takes
or receives from any post office or authorized depository of
mail matter, any letter, postal card, package, or other mail
matter addressed to any such fictitious, false, or assumed
title, name, or address, or name other than his own proper
name, shall be fined under this title or imprisoned not more
than five years, or both.
18 U.S.C. § 1342. The consent of the individual whose true name
is used by another is not a defense to this section; Alexander’s
consent to Soape’s use of his name and address do not make them
any less fictitious, false, or assumed as to Soape. Finally, 42
U.S.C. § 408(a)(7)(B) prohibits a person from, for certain
purposes, “with intent to deceive, falsely represent[ing] a
27
number to be the social security account number assigned by the
Commissioner of Social Security to him or to another person, when
in fact such number is not the social security account number
assigned by the Commissioner of Social Security to him or to such
other person.” As with 18 U.S.C. § 1342, Alexander’s consent to
Soape’s use of Alexander’s social security number does not make
that number any less false as to Soape, nor does it negate any
intent on Soape’s part to deceive persons other than Alexander.
Second, Soape complains of the district court’s refusal to
issue a subpoena for Inselmann, an attorney who he claims
possesses a power of attorney that would have tended to undermine
the government’s argument that the document sponsored by Knost
was a recent fabrication. Like the telephone records, Soape
claims, the power of attorney proves that he acted with
Alexander’s permission, and depriving him of compulsory process
for securing its presence violated his Sixth Amendment rights.
Soape filed two written motions for a subpoena for Inselmann,
neither of which shows any necessity for Inselmann’s testimony.
He also made an oral ex parte application for such a subpoena, in
which he similarly failed to demonstrate that Inselmann’s
testimony and the power of attorney in his possession was
necessary to his defense and indeed was unable coherently to
explain the gist of Inselmann’s expected testimony. And even if
he had made the same arguments before the district court that he
28
does on appeal, he would not have met the threshold showing of
necessity. Inselmann and the power of attorney could only show
that Soape had Alexander’s permission to act as he did. As we
explained above, such authorization was not a defense to the
crimes with which Soape was charged. Accordingly, we find that
the district court’s refusal to issue a subpoena for the Angelina
County Sheriff’s Department telephone records and for Inselmann
did not violate Soape’s Sixth Amendment right to compulsory
process.
D. Fifth Amendment Right to Due Process and Sixth Amendment
Right to Counsel
Finally, Soape complains that the district court denied him
due process and the effective assistance of counsel. On March
17, 1997, the government moved to modify the conditions of
Soape’s pretrial release so as to preclude him from having any
contact with prosecution witness McCaa. The motion alleged that
on March 14, 1997, Soape and Lovett placed an audio tape in
McCaa’s mailbox intended to harass and intimidate her and that
McCaa was concerned for her welfare and safety. The court
granted the motion. On appeal, Soape, who was acting pro se at
trial, contends that the ban on contact with McCaa precluded him
from properly preparing his defense and thereby violated both his
Fifth Amendment right to due process and his Sixth Amendment
right to effective assistance of counsel. We review such
29
constitutional questions de novo. See United States v. Osborne,
68 F.3d 94, 98 (5th Cir. 1995).
Soape is correct that as a general rule, “[w]itnesses,
particularly eye witnesses, to a crime are the property of
neither the prosecution nor the defense. Both sides have an
equal right, and should have an equal opportunity, to interview
them.” Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir.
1966). This does not mean, however, that a trial court may not
limit a defendant’s access to witnesses to prevent harassment or
other wrongdoing. See United States v. Whittington, 783 F.2d
1210, 1219 (5th Cir. 1986) (holding that a prosecutor may
investigate prospective defense witnesses if his conduct is
neither prompted by the possibility of their testifying nor
harassing or threatening, because “[t]he prosecutor’s hands are
not tied so tightly as to prevent good faith efforts to avert
perjury or to investigate past offenses”); United States v.
Heatley, 994 F. Supp. 483, 489 (S.D.N.Y. 1998) (limiting defense
access to prosecution witnesses where such contact would place
the witnesses in “substantial and immediate risk”).9 In this
case, the district court determined that Soape’s conduct toward
9
We also note that “a government witness who does not wish
to speak to or be interviewed by the defense prior to trial may
not be required to do so.” United States v. Caldwell, 750 F.2d
341, 346 (5th Cir. 1984) (quoting United States v. Benson, 495
F.2d 475, 479 (5th Cir. 1974)). Although McCaa was ultimately
called only by the government, Soape expressed an intent to call
her as a defense witness at various times during this criminal
proceeding.
30
McCaa was harassing and intimidating,10 and it imposed the ban on
contact to protect her and the integrity of the trial process.
In doing so, it did not infringe upon Soape’s Fifth and Sixth
Amendment rights. The challenged order explicitly permitted
Soape to subpoena McCaa, and it did not prohibit him from
requesting alternative methods of ascertaining McCaa’s testimony,
such as an interview before the trial court or an opportunity for
voir dire when the witness testified. Cf. Parsons v. United
States, 919 F. Supp. 86, 90 (N.D.N.Y. 1996) (“In any event, faced
with the belief that he was unable to have personal contact with
[the witness], the reasonable course would have been for
petitioner’s counsel to obtain the court’s permission to speak
with her for the purpose of preparing a defense. There is no
indication in the record that [counsel] pursued such an avenue.
The court therefore rejects the premise advanced by petitioner
that his counsel was precluded by a court order from having any
contact with a potential witness in order to prepare a
defense.”). Accordingly, we conclude that the ban on contact
10
Soape urges us to find the ban on contact with McCaa
unconstitutional because the district court later determined,
during the sentencing hearing, that the tape was not an attempt
to obstruct justice. We decline to do so. We see no reason why
a post-trial determination that a particular action of the
defendant does not trigger an obstruction of justice enhancement
under United States Sentencing Guidelines Manual § 3C1.1 should
render unconstitutional a trial court’s pretrial decision to
impose limitations on defendant-witness contact because of the
same action, which at the time appeared harassing or
intimidating.
31
with McCaa did not rise to the level of a constitutional
violation.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
32