* District Judge for the Southern District of Texas, sitting

by designation. 

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
 

** 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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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 prosecution 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 fraudulently obtained credit card "to obtain money, goods, services, or
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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 aggregating $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 aggregate 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 authority, 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.