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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

 

No. 94-60161

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARGARET S. CRAWFORD,

Defendant-Appellant,

AND

 

No. 94-60162

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDWARD B. CRAWFORD,

Defendant-Appellant.

 

Appeals from the United States District Court

for the Southern District of Mississippi

 

(May 15, 1995)

Before WISDOM, DUHÉ and BENAVIDES, CIRCUIT JUDGES.

BENAVIDES, CIRCUIT JUDGE:

Defendants-Appellants Margaret Crawford ("Margaret") and
 

1 Except as otherwise specifically provided in this

chapter, any person who intentionally . . .

manufactures, assembles, possesses, or sells any

electronic, mechanical, or other device, knowing or

having reason to know that the design of such device

renders it primarily useful for the purpose of the

surreptitious interception of wire, oral, or electronic

communications, and that such device or any component

thereof has been or will be sent through the mail or

transported in interstate or foreign commerce . . . .

18 U.S.C. § 2512(1)(b). 

 

2 Any person who manufactures, assembles,

modifies, imports, exports, sells, or

distributes any electronic, mechanical, or

other device or equipment, knowing or having

reason to know that the device or equipment

is primarily of assistance in the

unauthorized decryption of satellite cable

programming . . . .

47 U.S.C. § 605(e)(4).

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Edward Crawford ("Edward") appeal their convictions of violating

two statutes that each proscribe the manufacture or sale of

devices for the unauthorized interception of cable television

signals. 18 U.S.C. § 2512(1)(b);1 47 U.S.C. § 605(e)(4).2

Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

The Defendants owned and operated an electronics business in

Meridian, Mississippi. At two different times, an FBI agent took

a television satellite descrambler module to their place of

business, complaining that the module did not function properly. 

Both times, Margaret received the module and returned it

operational for a fee paid by the agent. The Government,
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alleging that the Defendants' repairs on the modules gave them

the capability of illicitly intercepting cable television

signals, indicted the Defendants for conduct violating the

Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §

2512(1)(b), and 47 U.S.C. § 605(e)(4). A jury found the

Defendants guilty of all counts. 

 

I. DOUBLE JEOPARDY CLAIM

The Defendants argue that their convictions violate the Double

Jeopardy Clause, which prohibits "multiple punishments for the same

offense." United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir.

1994) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other

grounds, Alabama v. Smith, 490 U.S. 794, 802-03, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989)). Whether different statutes punish the

same offense is determined by the standard in Blockburger v. United

States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Singleton, 16 F.3d at 1422. That standard requires that the two

statutes be compared to determine "whether each provision requires

proof of an additional fact which the other does not." Id.

(quoting Blockburger, 284 U.S at 304). The statutes fail the

Blockburger test, precluding punishment under both, if "either

statute contains no element not also found in the other statute."

Id. An exception is made when the legislature intended an overlap

to allow punishments under both. Id. 
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The Defendants argue that the ECPA and 47 U.S.C. § 605(e)(4)

significantly overlap and cite United States v. Chrane, 529 F.2d

1236, 1238 (5th Cir. 1976), which held that, if there is any doubt

on the legislative intent, the doubt must be resolved in favor of

the Defendant. We believe that Congress clearly intended an

overlap to allow punishments under both the ECPA and § 605, thus

even assuming that each statute fails to "require[] proof of an

additional fact which the other does not," the statutes do not fail

the Blockburger test. 

The legislative history of the ECPA "make[s] it absolutely

clear Congress intended the ECPA to overlap section 605, covering

some conduct the earlier statute already prohibited." United

States v. Lande, 968 F.2d 907, 912 (9th Cir. 1992), cert. denied,

113 S.Ct. 1299 (1993). As recognized in Lande, the following

excerpts of colloquies involving the principal sponsors of the ECPA

immediately before its passage support this conclusion: 

[Representative] MOORHEAD: . . . this legislation covers

conduct that may be prohibited under [47 U.S.C. § 605.] Do I

understand correctly that the sanctions contained in this

legislation would be imposed in addition to, and not instead

of, those contained in section [605] . . . ?

[Representative] KASTENMEIER: That is correct. . . . The

private viewing of any other video transmission not otherwise

excepted by section [605(b)] will be subject to action under

both the Communications Act and this legislation.

Id. (quoting 132 Cong. Rec. H8985 (daily ed. Oct. 2, 1986)). A

similar conversation occurred in the Senate: 

[Senator] DANFORTH: This legislation covers some conduct

that also is prohibited under [47 U.S.C. § 605]. Do I

understand correctly that the sanctions contained in this

legislation would be imposed in addition to, and not instead

of, those contained in section [605]?
 

3The Crawfords also erroneously contend that the court in

Lande held that the prosecutor should choose between the two

sections. Lande, 968 F.2d at 912. However, the Lande court made

no such holding. The Crawfords also cite Ball v. United States,

470 U.S. 856 (1985), and argue that Ball held that the government

could prosecute the same act under two overlapping statutes, but

could not obtain two convictions even if the sentences ran

concurrently, id. at 864-65. In Ball, however, the Court found

that Congress did not intend to punish the petitioner's conduct

under both statutes, which overlapped. Id. at 864. Further,

Ball did not involve § 2512 and § 605. 

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[Senator] MATHIAS: That is correct. . . . The penalties

provided for in the Electronic Communications Privacy Act are

in addition to those which are provided by section [605]. . .

. The private viewing of any other video transmissions not

otherwise excepted by section [605(b)] could be subject to

action under both the Communications Act and this legislation.

Id. (quoting 132 Cong. Rec. S14452-53 (daily ed. Oct. 1, 1986)).

As a part of his response to Senator Danforth's question, the

Congressional Record also reveals that Senator Mathias stated:

"These supplemental sanctions are particularly important where an

unauthorized interception is made for direct or indirect financial

gain. This bill is designed to help put an end to such conduct."

132 Cong. Rec. S14453 (daily ed. Oct. 1, 1986) (emphasis added).

Accordingly, because the legislative history is clear that, in

enacting the ECPA, Congress intended an overlap and articulated

punishments for those actions punishable under both the ECPA and 47

U.S.C1. § 605, there is no Double Jeopardy Violation.3

II. INVOLUNTARY STATEMENTS

After the Defendants returned the repaired modules to the

undercover FBI agents, but before the Defendants were arrested, the
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FBI conducted pursuant to a warrant a search of the Defendants'

electronics shop. The Defendants argue that statements they made

during this search were erroneously admitted at trial. The

statements are as follows: Margaret's statement that she tried to

get Edward to direct their business away from altering cable

television modules. Edward's statements that about one percent of

his 400 customers were operating legal descramblers and that 90

percent of his business was legitimate. 

It is undisputed that, during the execution of the search

warrant, the Defendants were not advised of their rights as

delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966). However, after conducting a suppression

hearing, the district court found that the Defendants were not in

custody at the time of the statements and that no coercion was

exerted upon them. Accordingly, it denied the motions of each

Appellant who sought to suppress the statements.

A district court's ruling on the admissibility of evidence is

reviewed for abuse of discretion. United States v. Bermea, 30 F.3d

1539, 1574 (5th Cir. 1994), cert. denied, 1995 WL 156657 (1995).

"We have long pitched the standard of review for a motion to

suppress based on live testimony at a suppression hearing at a high

level." United States v. Randall, 887 F.2d 1262, 1265 (5th Cir.

1989). Findings of fact are accepted unless clearly erroneous or

based on an incorrect view of the law. Id. A clearly erroneous

finding is one that is not plausible in light of the record viewed

in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564,
 

4 Margaret argues that the four-factor test set forth in

United States v. Charles, 738 F.2d 686 (5th Cir. 1984), is the

applicable test to determine whether custodial interrogation has

occurred. However, in United States v. Bengivenga, 845 F.2d 593

(5th Cir.) (en banc), cert. denied, 488 U.S. 924, 109 S.Ct. 306

(1988), this Court abandoned that test, id. at 596-97.

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573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). 

Miranda warnings must be given prior to a custodial

interrogation. United States v. Pofahl, 990 F.2d 1456, 1487 (5th

Cir.), cert. denied, 114 S.Ct. 560 (1993). "A person is `in

custody' for Miranda purposes when placed under formal arrest or

when a reasonable person in the suspect's position would have

understood the situation to constitute a restraint on freedom of

movement of the degree which the law associates with formal

arrest." Id. (internal quotation marks omitted).4 We review the

district court's finding that the Appellants were not in custody at

the time of the statements. 

At the suppression hearing, FBI Agent Orrin Fuelling

("Fuelling") testified that the Crawfords were not under arrest

during the search. To his knowledge, they did not ask to leave the

premises, and officers did not tell the Crawfords that they were or

were not free to leave. Fuelling testified that, when the officers

entered the premises, only Margaret was present. When he served

the search warrant, Margaret asked if she could call Edward. The

officers said that she could, she did, and Edward came to the shop.

Fuelling stated that, during the search, officers answered the

telephone and waited on customers; the officers did not allow the

Crawfords to do so. When Edward arrived, he sat in the break room
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of the shop, and agents talked to him there from time to time

during the search. Fuelling also testified that, when agents found

a small quantity of marijuana, he advised Edward of his Miranda

rights but also told him that he was not in custody and that he was

free to go.

FBI Agent Laura Henry ("Henry") also testified at the hearing.

She was not aware of anyone telling the Crawfords that they were

not free to leave or that they had to remain at the shop, nor did

she know of the Crawfords asking to leave. They were not

restricted in their movements. FBI Agent Patrick Fallon testified

that the Crawfords voluntarily cooperated with the search; no one

required them to be there. Tom Shiel ("Shiel") was also present at

the search in his capacity as an investigator for the Motion

Picture Association of America, along with fellow investigator

Robert Butler. Shiel stated that no one told the Crawfords that

they were not free to leave nor did they ask to leave. Supervisory

FBI Agent Jerry Marsh ("Marsh") testified that he did not direct

any agent to tell the Crawfords that they were not free to leave.

Marsh, however, also testified that, during the search, the

Crawfords could not go from room to room within the shop without

being accompanied by an agent.

Edward also testified at the suppression hearing. When he

arrived at the shop, he stated, he found men in suits wearing guns.

When he sat in the break room, he was "sandwiched between two men

at all times" and felt intimidated; no one told him that he was

free to leave or move about the shop, and he felt as if he had no
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freedom. Edward continued by stating that he did not feel free to

refuse to answer questions and did not feel free to make any

telephone calls. Although no one drew or displayed a weapon,

Edward testified that it was easy to see that the agents were

wearing weapons. No one ever told him to sit in a certain place,

but he had the impression that he should sit down. He was not

allowed to be in Margaret's presence, but he was not told that.

When the marijuana was found, Fuelling advised him of his rights

and told him that he was free to go. That was after he had been

questioned about the modules, however; the search was almost

complete at that point.

Margaret also testified. When Fuelling presented himself and

the search warrant, Margaret stated that she asked his permission

to call Edward, which was given. Margaret continued by stating

that she had the impression that the agents were reaching for their

guns and felt that she had to ask permission to make the call.

Margaret also testified that, during the search, agents prevented

her from waiting on customers and that she did not attempt to leave

because she did not think that she would be allowed to leave.

Further, although she did not feel free to leave, she did not want

to leave because she wanted to stay to protect the electronic

equipment in the shop from damage by the agents. Margaret also

stated that the agents permitted her out of their presence only

when she went to the bathroom and that she did not feel that she

could refuse to answer the agents' questions. 

A Meridian police officer testified that, while the search was
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in progress, he called the business on an unrelated matter. He

asked to speak with either Margaret or Edward, and Fuelling refused

to let him speak with them.

At the conclusion of the hearing, the court determined that,

although the agents "descended on this business," they did so with

the purpose of conducting a search and gathering evidence. That

occurrence did not translate into the custody of the Defendants.

The court found that Margaret telephoned Edward, he came to the

shop voluntarily, neither Defendant was arrested, and that Edward's

testimony did not indicate that he was coerced into making a

statement. The court further found that "[t]hey were more worried

about their electronic equipment, not having their shop disrupted

than they were about being held in custody." Finding that the

Crawfords were not in custody during the search, the district court

denied their motions to suppress.

It is readily apparent that the district court first addressed

whether or not the Crawfords were under formal arrest, and

concluded that they were not. Secondly, the district court

reviewed the evidence indicating that the Crawfords did not

reasonably believe that they were arrested. Accordingly, the

district court made findings that are based on the testimony and

that addressed both aspects of the test to determine whether

Miranda warnings were required for statements to be admissible.

See Pofahl, 990 F.2d at 1487. In the light of the record viewed in

its entirety, it cannot be said that the trial court's findings are

not plausible; the trial court did not err in finding the Crawfords
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were not in custody at the time of their statements. 

Edward also argues that his statements should not have been

admitted without corroboration, relying on the rule that a

conviction may not rest solely on a confession. There must be

independent evidence of guilt or corroboration of the confession.

United States v. Duggan, 936 F.2d 181, 184 (5th Cir.), cert.

denied, 502 U.S. 951, 112 S.Ct. 404 (1991). But this argument

confuses the admissibility of evidence with the sufficiency of

evidence, two separate matters.

Nonetheless, even if Edward's statements are considered to be

a confession, they are not the only evidence of his guilt.

Margaret's statement that she asked Edward to stop making illegal

devices corroborates Edward's statements. The search of Edward's

shop yielded a memory device for programming a large number of

chips to decode signals, a device for erasing programmed

information from a large number of chips, and a notebook containing

electronic authorization codes that were the property of General

Instruments Corporation. The two devices could have had both

legitimate and illegitimate purposes. The information in the

notebook could be used only for piracy. Thus, Edward's statements

were not the only evidence of his guilt. 

III. SUFFICIENCY OF THE EVIDENCE

The Defendants next challenge the sufficiency of evidence to

support their guilty verdicts. When reviewing the sufficiency of
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the evidence, we view all evidence, whether circumstantial or

direct, in the light most favorable to the government with all

reasonable inferences and credibility choices to be made in support

of the jury's verdict. United States v. Salazar, 958 F.2d 1285,

1290-91 (5th Cir.), cert. denied, 113 S.Ct. 185 (1992). The

evidence is sufficient to support a conviction if a rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt. Id. The evidence need not exclude every

reasonable hypothesis of innocence or be completely inconsistent

with every conclusion except guilt, so long as a reasonable trier

of fact could find that the evidence established guilt beyond a

reasonable doubt. United States v. Faulkner, 17 F.3d 745, 768 (5th

Cir), cert. denied, 115 S.Ct. 193 (1994). 

Margaret contends that the evidence does not show beyond

reasonable doubt that she modified the gray circuit board (one of

the modules given to her by the FBI agents) or that she was capable

of modifying the board, and that it was more probable that others

may have done the modifying either before or after the Defendants

had possession of it. As an example, she argues that it would have

taken 20 minutes to replace a certain chip on the gray board, and

that the 30-minute time span she had the board was inadequate for

her to have done this modification. Margaret also argues that the

gray board did not work after she returned it, and that it was in

such a bad state that it was not possible to tell whether anything

had changed. She also argues that "[a]ny modifications [of the

black circuit board (the other module given to the her by the FBI
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agents)] that tended to incriminate [her], because of the partisan

chain of custody, could have been performed at [a corporation]

after Margaret had tested it on May 11th." 

To the extent that the above arguments call into question

whether or not Margaret manufactured or assembled an illicit

device, Margaret fails to challenge the evidence in the record that

she sold such a device, which is also punishable under both

statutes. For example, it is uncontested that Margaret received

payments for the repairs done on the modules, and there is

testimony in the record that Margaret stated to FBI Agent Henry

after returning a module that "now you can view scrambled

television programs." This testimony clearly supports a conclusion

that Margaret sold a device capable of illicitly intercepting

television signals. Further, Margaret's statements also indicate

that the modules were in good working condition after the

Defendants repaired and returned them to the FBI. 

Edward contends that the evidence is insufficient to sustain

his convictions, asserting that all of the evidence was

circumstantial "but for the Government's testimony of his

admissions of illegal modification which, Edward explained, ceased

in 1991." However, the jury was free to reject Edward's

explanations of his admissions of illegal activity. It did so.

The evidence is clearly sufficient to sustain his conviction.

IV. JURY INSTRUCTIONS
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Edward next contends that the jury was improperly instructed.

He asserts that the instruction was vague to the extent that it did

not specifically identify the device(s) involved. He argues that

the indictment identified the devices as "satellite descrambler

modules," but the court failed to instruct the jury to determine

whether such modules were involved. 

Edward did not raise this objection in the district court.

"No party may assign as error any portion of the charge or omission

therefrom unless that party objects thereto before the jury retires

to consider its verdict, stating distinctly the matter to which

that party objects and the grounds of the objection."

Fed.R.Crim.P. 30. When a criminal Defendant has forfeited an error

by failing to object, we may remedy the error only in the most

exceptional case. United States v. Calverley, 37 F.3d 160, 162

(5th Cir. 1994) (en banc), cert. denied, 115 S.Ct. 1266 (1995);

United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994), cert.

denied, 1995 WL 36679 (1995). The Supreme Court has directed the

courts of appeals to determine whether a case is exceptional by

using a two-part analysis. United States v. Olano, 113 S.Ct. 1770,

1777-79 (1993).

 First, an Appellant who raises an issue for the first time on

appeal has the burden to show that there is actually an error, that

it is plain ("clear" or "obvious"), and that it affects substantial

rights. Olano, 113 S.Ct. at 1777-78. Second, even when the

Appellant carries his burden, a remedy "is permissive, not

mandatory. If the forfeited error is `plain' and `affect[s]
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substantial rights,' the Court of Appeals has authority to order

correction, but is not required to do so." Id. (quoting

Fed.R.Crim.P. 52(b)). 

With respect to jury instructions, plain error is found only

when the charge, considered as a whole, is so erroneous as to cause

a grave miscarriage of injustice or seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United

States v. Beaumont, 972 F.2d 91, 94 (5th Cir. 1992). Here, Count

1 of the indictment describes the devices as "electronic,

mechanical, and other devices, that is, satellite descrambler

modules." The jury instruction does not use the term "satellite

descrambler modules," but refers to "electronic, mechanical or

other device." The language used by the court is identical to the

language in the statutes. The district court did not plainly err

in failing to refer particularly to the descrambler modules in the

jury instruction. Moreover, the trial centered on the satellite

descrambler modules as being the illegal devices alleged in the

indictment. No miscarriage of justice occurred as a result of the

jury instruction. Edward has forfeited his argument by his failure

to object in the district court. 

V. CHAIN OF CUSTODY

Finally, Margaret contends that the government did not

establish the chain of custody of the modules that were admitted to

show her guilt. Evidentiary rulings are reviewed for abuse of
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discretion. Bermea, 30 F.3d at 1574.

When the government sought to introduce two modules, a "gray

board" and a "black board," defense counsel objected on the ground

that the chain of custody had not been established. Counsel argued

that the government left open the possibility that the boards were

tampered with after they left the Defendants' hands. The district

court overruled the objection, stating that alterations that might

have been made in the boards would be an appropriate subject for

cross-examination and argument to the jury. 

Any break in the chain of custody affects the weight, not the

admissibility, of evidence. Bermea, 30 F.3d at 1574. Accordingly,

even if a break occurred in the instant case, the district court

did not abuse its discretion in admitting the evidence. 

CONCLUSION

For the foregoing reasons, the Defendants' convictions are

AFFIRMED.