Appeal from judgment of United States District Court for the Western District of New York, John T. Elfvin, J., entered after a jury trial, convicting appellant of conspiracy to use, with intent to defraud, and such use of, an unauthorized and counterfeit access device pursuant to 18 U.S.C. §§ 1029(b)(2), (a)(1) and (2).
Feinberg, Chief Judge, Cardamone and Pratt, Circuit Judges.
Anthony Russell Gugino appeals from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, J., convicting appellant after a jury trial on three counts charging violation of 18 U.S.C. §§ 1029(b)(2), 1029(a)(1) and (2). The first count charged conspiracy to use with intent to defraud, and the other two counts charged such use of, an unauthorized access device and a counterfeit access device. Appellant claims that his conviction under subsection (2) of § 1029(a) was improper. He also argues that the district court should have suppressed identification testimony and should have granted his motion for a new trial. For reasons given below, we affirm the judgment of the district court.
From the evidence before it, the jury could have found the relevant facts as follows. In July 1986, Anthony Gugino prevailed upon Gary Rampino to forge the signature of Stephen Giardina on the back of a Visa credit card issued in Giardina's name and obtained by Gugino. Gugino told Rampino that he did not want to sign the Visa card because it belonged to a family friend.
Later that month, Gugino and Rampino went to a jewelry store in a shopping mall outside Buffalo, New York in order to purchase a diamond engagement ring with the Visa card. Rampino passed himself off as Stephen Giardina while Gugino played the role of Giardina's future brother-in-law. When Rampino and Gugino advised the sales clerk, Dorothy Garcia, that they wanted to purchase a diamond ring shown to them and pay for it with the credit card, Garcia informed Rampino that she needed to see some type of identification before she could complete a transaction valued in excess of $1,000. While Rampino went to the parking lot ostensibly to retrieve his driver's license from his car, Gugino remained in the store. When Rampino returned to the jewelry store, he discovered that another employee, Jerome Wenneman, had approved the purchase. Rampino then, in the presence of Gugino, signed both a Visa credit card slip and the store's sales slip using Giardina's name. The two men then left the store with the ring. Although the purchase price of the ring was over $1,100, it was later sold for $400.
In early November 1986, law enforcement officers showed a six-picture photo display separately to the two jewelry store employees who had been involved in the sale of the ring to Rampino and Gugino the previous July. Both Garcia and Wenneman selected Gugino's photograph from the array as one of the participants in the purchase of the diamond ring. At trial, Garcia again identified Gugino as one of the participants in the ring transaction at the jewelry store.
In June 1987, Gugino was indicted in a three-count indictment. Count I charged Gugino with conspiracy to use, with intent to defraud, an unauthorized and counterfeit access device in order to obtain merchandise in excess of $1,000, 18 U.S.C. § 1029(b)(1). Count II charged Gugino with aiding and abetting such use of an unauthorized access device, 18 U.S.C. § 1029(a)(2), and Count III charged Gugino with aiding and abetting similar use of a counterfeit access device, 18 U.S.C. § 1029(a)(1). Before trial, Gugino unsuccessfully moved to suppress identification testimony by Garcia. After the jury returned its verdict of guilty on all three counts, Gugino moved for a judgment of acquittal based upon the alleged perjury of one of the government's witnesses, Salvatore Lauricella, but the district court denied the motion. Judge Elfvin sentenced Gugino to five-year terms of imprisonment on each count to run concurrently, and ordered him to pay restitution of $1,453.00 to the bank that issued the Visa credit card. This appeal followed.
In Counts II and III of the indictment, appellant was charged with violating subsections (1) and (2) of § 1029(a) of Title 18 of the United States Code. Subsection (1) covers fraudulent use of a " counterfeit access device" and subsection (2) covers such use of an " unauthorized access device." (Emphasis supplied). The relevant portions of section 1029 are reproduced in the margin.*fn1 Appellant argues to us that the credit card used here was a counterfeit access device and not an unauthorized access device. Appellant claims that subsections (1) and (2) of § 1029(a) are mutually exclusive and that the same access device cannot at the same time be both counterfeit and unauthorized. Thus, although appellant continues to assert that his conviction on Count III was error for other reasons discussed below, he concedes that the Visa card was a counterfeit access device as charged by that count. He contends, however, that because the credit card was not an unauthorized access device his conviction on Count II must be set aside.
Section 1029 was enacted in 1984 as part of a congressional effort to plug loopholes in federal criminal law in the area of debit and credit cards and to curb the rapid increase in counterfeiting and related fraud with regard to those devices. See S. Rep. No. 98-368, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3647-58; H.R. Rep. No. 98-894, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3689, 3699-706. Subsection (e) of section 1029, see note 1, contains the following definitions:
(2) the term "counterfeit access device" means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device;
(3) the term "unauthorized access device" means any access device that is lost, stolen, expired, revoked, canceled, or ...