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
2

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.
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

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
4

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
5

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
6

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
7

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
8

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.
9

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). 
10

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:
11

[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. 
12

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
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

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
14

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
15

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. WilliamsHendricks, 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,
16

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
17

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,
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

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
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 pretrial 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

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
20

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)
21

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;
5 The Federal Rules of Criminal Procedure create a

mechanism to realize the Sixth Amendment right to compulsory

process:

22

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
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

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.
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

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. ValenzulaBernal, 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
25

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
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

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
27

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
28

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
29

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
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

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
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

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
32

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.