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United States v. Caputo

decided: January 6, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
VINCENT CAPUTO AND VINCENT POTENZA, DEFENDANTS-APPELLANTS



Appeal from judgments of conviction in the United States District Court for the Southern District of New York (Owen, J.) following a jury trial in which appellants were found guilty of conspiracy to possess and possession of unauthorized access devices, in violation of 18 U.S.C. § 1029. Affirmed.

Author: Altimari

Before: MESKILL, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Vincent Caputo and Vincent Potenza appeal form judgments of conviction entered in the United States District Court for the Southern District of new York after a four-day jury trial before Judge Richard Owen. Appellants were charged in a two-count indictment with violations of a recently enacted federal statute which prohibits various types of credit card fraud, 18 U.S.C. § 1029. Count One charged appellants with conspiracy to possess fifteen or more unauthorized access devices with intent to defraud, in violation of 18 U.S.C. § 1029(b)(2). Count Two charged appellants with possession of fifteen or more unauthorized access devices with intent to defraud, in violation of § 129(a)(3). The "unauthorized access devices" at issue were approximately 60 credit card account numbers printed on the backs of restaurant checks from Angelo's Restaurant in New York City. Appellant Caputo was sentenced to five years' imprisonment on Count Two, to be followed by five years' probation on Count One. Appellant Potenza was sentenced to seven and one-half years' imprisonment on Count Two, to be followed by five years' probation on Count One. We affirm both convictions.

The government's key evidence was offered by Special Agent Richard Ensminger of the United States Secret Service. Ensminger testified that on April 13, 1985 he and Special Agent Joseph Oliver were conducting a credit card investigation in the Little Italy section of Manhattan. The agents were eating lunch in a restaurant called Tony's on Mulberry Street. While inside Tony's they observed appellant Caputo's car pull up in front of the restaurant. Caputo entered Tony's and made a call from the public telephone. Within 15 minutes appellant Potenza entered Tony's, spoke with Caputo for a few minutes and then left. Potenza returned shortly, carrying a white plastic bag which he handed to Caputo. Caputo did not look inside the bag. he left the restaurant, walked directly across the street and placed the bag inside a garbage can located on the sidewalk. Caputo then returned to Tony's, where he and Potenza spoke briefly. The two men went outside and continued talking; after a few minutes, they left the area.

Agent Ensminger, suspecting that the plastic bag might contain contraband, called Secret Services offices to arrange for another agent to retrieve the bag. special Agent Marc Sidbury responded to the call and recovered the white plastic bag from the garbage can. The bag contained 85 restaurant checks from Angelo's Restaurant, the majority of which were attached to carbon imprints of either Visa or Mastercard credit cards. Appellant Potenza's fingerprints were found on three of the checks. Appellants were neither employees of Angelo's Restaurant, nor authorized by anyone at Angelo's to possess the checks for any purpose.

An expert witness for the government, Justin Tobia, testified that credit card account numbers are essential to the success of any fraudulent credit card scheme. During the five months following the government's seizure of the white plastic bag, 17 of the account numbers appearing on the checks were used in fraudulent transactions.

Appellants denied that they had possessed the account numbers with an intent to defraud. To prove that appellants had the requisite intent, the government offered evidence of previous credit card schemes in which appellants were involved.

One scheme involved both appellants and a third individual named Joseph Melita. The government offered recorded phone conversations between Melita and Caputo, obtained pursuant to a court-ordered wiretap, and evidence of meetings among the three men, at which credit cards were allegedly exchanged.

A New York City police sergeant then testified that while on a credit card investigation in 1983, he observed appellant Caputo buying a case of videotapes with a counterfeit credit card. At the time of this purchase, Caputo was also carrying four other counterfeit cards.

Defense counsel for appellant Caputo offered a portion of a tape-recorded phone conversation from March 1985 during which Caputo was warned by an unidentified man that he was being followed. Caputo's lawyer then argued that his client would not have engaged in the conduct charged in April 1985 because he knew he was under surveillance. Appellants were found guilty on both counts of the indictment.

I.

Appellants first contend that the statute under which they were convicted, 18 U.S.C. § 1029, does not criminalize possession or conspiracy to possess restaurant checks with credit card account numbers imprinted on them. Section 1029(a)(3) authorizes punishment for a person who "knowingly and with intent to defraud possess fifteen or more devices which are counterfeit or unauthorized access devices." Section ...


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