Filed: Dec. 10, 2013
Latest Update: Mar. 02, 2020
Summary: replacement parts.-4-, warrant to search Kuc's residence.(citing United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.3, Kuc argues that we should not consider evidence of computer, parts that were sent to 42 Union Street in Samuel's name because, they were sent with Samuel's permission.
United States Court of Appeals
For the First Circuit
No. 12-2496
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW J. KUC,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Dana A. Curhan, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
December 10, 2013
TORRUELLA, Circuit Judge. Defendant-Appellant Matthew J.
Kuc ("Kuc") was indicted for fraudulently obtaining computer parts
and selling them for profit. After a four-day jury trial, Kuc was
convicted of four counts of wire fraud, one count of possession of
stolen property, and one count of aggravated identity theft. On
appeal, Kuc presents two claims: 1) the search warrant was
defective because it violated the Fourth Amendment's particularity
requirement, and 2) the evidence was insufficient to convict Kuc of
aggravated identity theft. Neither claim has merit, and for the
reasons that follow, we affirm.
I. Background
Because Kuc challenges the sufficiency of the evidence
against him, "we rehearse the facts in the light most favorable to
the jury verdict, consistent with record support." United States
v. Valerio, 676 F.3d 237, 240-41 (1st Cir. 2012) (citations
omitted).
A. Kuc's Fraudulent Scheme
From June 1, 2005 until December 14, 2010, Kuc engaged in
a fraudulent scheme to obtain computer parts from several computer
companies, including Dell, 3Com, Hewlett-Packard, and Lenovo. He
would begin by contacting a computer company via telephone or
online chat session, claiming that he needed a replacement part for
a defective computer component that was under warranty. As proof,
Kuc would provide the company with a serial number or service tag
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that belonged to a real piece of computer equipment under warranty.
The company would then mail Kuc a free replacement part with the
expectation that he would return the defective part upon receipt,
but in most instances, Kuc failed to do so. This is because Kuc
neither owned nor had the right to service the components that he
falsely claimed were defective. Instead, he manipulated the
companies' warranty procedures to receive free "replacement"
computer parts, including tape drives, motherboards, hard drives,
and processors, which he subsequently sold online for profit.
To prevent the companies from detecting his fraudulent
activities, Kuc used multiple shipping addresses when requesting
replacement parts. In addition, Kuc utilized a variety of
alternate spellings of each address, such as "3-6 Laurelwood Drive"
and "36 Louralwood Drive." Each version was sufficiently different
to slip through the companies' internal fraud-detection system but
sufficiently similar to a real address that deliveries would still
arrive at their intended destination. Kuc also used hundreds of
aliases, such as "Tadeusz Tadeusz," "Ray Di Ciaccio," and "Sue
Parchesco," to request the warranty replacement parts.
Additionally, he used alternate spellings of his own and other
names, such as "Matt Kook," "Matt Kuk," and "Matt Cook."
One of the names that Kuc used on numerous occasions was
Francisco Samuel ("Samuel"). Samuel, a business associate of Kuc,
gave Kuc permission to deliver packages to Samuel's business at 42
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Union Street in Attleboro, Massachusetts because Kuc told Samuel
that no one was present to accept morning deliveries at Kuc's place
of employment. Samuel and Kuc did not discuss the use of Samuel's
name on the packages, and Samuel did not know about Kuc's
fraudulent scheme. Nevertheless, Kuc used Samuel's name and
variations of Samuel's name, together with variations of the name
of Samuel's company, to receive computer parts at 42 Union Street
and other addresses.
Once Kuc received the "replacement" computer equipment,
he sold the parts online through a business he called Total Asset
Recovery. In total, Kuc received in excess of $3,576,000 worth of
replacement parts from computer companies, and he made a total of
$1,322,066 from online sales.1
B. The Search of Kuc's Residence
The North Attleboro Police Department initially learned
of Kuc's scheme in 2009 from investigators who were working for one
of the defrauded computer companies. In 2010, Special Agent
Kenneth Heitkamp of the Federal Bureau of Investigation, working in
concert with the North Attleboro police, discovered that Kuc was
selling parts from other computer manufacturers as well. On
December 10, 2010, Agent Heitkamp applied for and received a
1
The record is not clear as to what percentage, if any, of Kuc's
business at Total Asset Recovery was based on non-fraudulent
acquisitions and sales.
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warrant to search Kuc's residence. The search warrant specified
the location to be searched and authorized the seizure of:
All records, in whatever form, and tangible
objects that constitute evidence, fruits, and
instrumentalities of violations of 18 U.S.C.
§§ 1343 (wire fraud), 2314 (interstate
transportation of stolen property), 2315
(storage and sale of stolen property in
interstate commerce), and 2 (aiding and
abetting), including, without limitation:
[list of twenty-three categories of items].
On December 14, 2010, agents searched Kuc's residence and
seized over 170 boxes of computer parts with markings from Dell,
3COM, Lenovo, and Hewlett-Packard. Agents also seized a notebook
and computer files containing lists of different names, companies,
and addresses that Kuc had used to receive computer parts. A
forensic examiner later discovered computer files with scripted
chat conversations that Kuc had used to request replacement parts.
On March 1, 2012, Kuc filed a motion to suppress the
fruits of the search warrant, arguing that it violated the
particularity requirement of the Fourth Amendment. On June 14,
2012, the district court denied the motion, and the evidence taken
from Kuc's residence was admitted at trial. Ultimately, the jury
convicted Kuc of four counts of wire fraud, in violation of 18
U.S.C. § 1343; one count of receipt, possession, and storage of
stolen property in interstate commerce, in violation of 18 U.S.C.
§ 2315; and one count of aggravated identity theft, in violation of
18 U.S.C. § 1028A.
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II. Analysis
Kuc makes two claims of error on appeal. First, he
argues that the district court erred in denying his motion to
suppress the fruits of an invalid search warrant. Second, he
claims that the court erred in denying his motion for judgment of
acquittal on the aggravated identity theft charge. We take each
claim in turn.
A. The Motion to Suppress
When reviewing a district court's denial of a motion to
suppress, we review factual findings for clear error and legal
conclusions de novo. United States v. Crooker, 688 F.3d 1, 6 (1st
Cir. 2012). If "any reasonable view of the evidence supports the
decision," we must affirm. United States v. Tiem Trinh,
665 F.3d
1, 9 (1st Cir. 2011) (quoting United States v. Woodbury,
511 F.3d
93, 97 (1st Cir. 2007)).
Kuc argues that the search warrant violated the
particularity requirement of the Fourth Amendment because it
contained broad language and provided effectively no limitations on
the scope of the search. To support this claim, he relies on the
first paragraph of the warrant's text, which authorizes the seizure
of "[a]ll records . . . and tangible objects that constitute
evidence, fruits, and instrumentalities of violations of [specified
criminal statutes] including, without limitation," certain
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enumerated categories of items.2 The language "including, without
limitation," is -- according to Kuc -- evidence that this was a
general warrant contravening the Fourth Amendment's requirement
that warrants must "particularly describ[e] the place to be
searched, and the persons or things to be seized." U.S. Const.
amend. IV. The references to certain criminal statutes cannot save
the warrant, Kuc adds, because a general warrant limited only by
reference to a broad criminal statute has "no limitation at all."
See United States v. Roche, 614 F.2d 6, 8 (1st Cir. 1980) (finding
that search warrant violated particularity requirement where its
only limitation was a reference to the mail fraud statute).
Kuc is certainly correct insofar as he argues that
general warrants "authoriz[ing] the wholesale rummaging through a
person's property" are invalid. United States v. Upham, 168 F.3d
532, 535 (1st Cir. 1999). The particularity requirement demands
that a valid warrant: (1) must supply enough information to guide
and control the executing agent's judgment in selecting where to
search and what to seize, and (2) cannot be too broad in the sense
that it includes items that should not be seized. Id.; see also
United States v. Abrams,
615 F.2d 541, 545-46 (1st Cir. 1980).
2
We note that Kuc has elected not to argue on appeal that any of
the twenty-three categories of items violated the particularity
requirement, and thus such argument is deemed waived. See Dialysis
Access Ctr., LLC v. RMS Lifeline, Inc.,
638 F.3d 367, 374 n.7 (1st
Cir. 2011).
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Despite Kuc's assertions to the contrary, however, the warrant in
this case did not run afoul of the particularity requirement.
Kuc's argument misses the mark because he reads the
warrant's first clause in isolation. We recognized long ago that
a warrant's language must be read in context, such that "the
'general' tail of the search warrant will be construed so as not to
defeat the 'particularity' of the main body of the warrant."
Abrams, 615 F.2d at 547 (citing Andresen v. Maryland,
427 U.S. 463,
480-81 (1976)). In Andresen, the Supreme Court rejected the claim
that an otherwise valid warrant was rendered impermissibly general
by the addition of the phrase "together with other fruits,
instrumentalities, and evidence of crime at this (time unknown),"
because the phrase had to be read in context and together with the
warrant's "lengthy list of specified and particular items to be
seized." 427 U.S. at 479-81. Similarly, in United States v.
Bucuvalas,
970 F.2d 937 (1st Cir. 1992), abrogated on other grounds
by Cleveland v. United States,
531 U.S. 12, 18 (2000), this court
upheld a warrant that authorized the seizure of "[r]ecords,
documents, notes and physical objects which constitute evidence of
and instrumentalities of [four specified crimes], and, in
particular, records, documents, notes and physical objects
[evidencing specified criminal acts by the suspect]."
Id. at 941
n.5. We recognized that the language "and, in particular," simply
served to transition from the first clause, which identified the
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criminal offenses that the evidence was expected to establish, to
the second clause, which imposed more specific search constraints.
Id. at 942 ("[B]ut for the search constraints in the second clause
we might agree that the particularity requirement of the Fourth
Amendment would not have been met. In light of the specific types
of items described in the second clause, however, the warrant met
the Fourth Amendment particularity requirement.").
Here, as in Bucuvalas, the search warrant includes a
transitional phrase that connects a broad first clause, which
identifies the criminal offenses that the target evidence was
expected to establish, with a detailed and particularized second
clause. The second clause, the particularity of which Kuc does not
challenge on appeal, details the companies that Kuc was suspected
of defrauding as well as the aliases, street addresses, and e-mail
addresses he was believed to have used in his scheme. As in
Bucuvalas, the "second clause . . . in the instant warrant tracked
the allegations . . . for which probable cause was established in
the accompanying affidavit." Id. The phrase "including, without
limitation" is certainly not a model of precise drafting.
Nevertheless, it does not make the warrant constitutionally infirm
because it is a transitional phrase linking to the second, very
particular clause, and it must be read in that context, as in
Andresen and Bucuvalas. Thus, we agree with the district court
that the "general" transitional phrase in this case should not be
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construed to defeat the particularity of the main body of the
warrant.
Moreover, even if we were to find that the language in
this case exceeded the bounds of Bucuvalas and violated the
particularity requirement of the Fourth Amendment, suppression
still would not be necessary pursuant to the good faith exception
to the exclusionary rule. This is because -- as the district court
correctly noted -- the warrant, read comprehensively and in
context, was not so "facially deficient . . . that the executing
officers [could not] reasonably presume it to be valid." United
States v. Leon, 468 U.S. 897, 923 (1984). Given our holding in
Bucuvalas, we cannot conclude that "a reasonably well trained
officer would have known that the search was illegal despite the
magistrate's authorization."
Id. at 922 n.23. Thus, the good
faith exception to the exclusionary rule would apply.
We therefore find that the district court properly denied
Kuc's motion to suppress.
B. The Motion for Acquittal
Kuc's second argument is that the district court erred
when it denied his motion for a judgment of acquittal as to the
aggravated identity theft charge. We review the denial of a motion
for judgment of acquittal de novo. Valerio, 676 F.3d at 243-44
(citing United States v. Lipscomb,
539 F.3d 32, 40 (1st Cir.
2008)). Viewing the evidence in the light most favorable to the
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government and taking all reasonable inferences in the government's
favor, we must ask whether "a rational factfinder could find,
beyond a reasonable doubt, that the prosecution successfully proved
the essential elements of the crime." Id. at 244 (quoting United
States v. Hernández,
146 F.3d 30, 32 (1st Cir. 1998)).
In short, Kuc argues that the prosecution failed to prove
that he unlawfully used a "means of identification" in his
fraudulent scheme as described in 18 U.S.C. § 1028A(a)(1) because
the use of someone's name -- without more -- cannot suffice to
constitute a "means of identification." Pursuant to 18 U.S.C.
§ 1028A(a)(1), a person is guilty of aggravated identity theft if,
in relation to any crime listed in § 1028A(c), he "knowingly . . .
uses, without lawful authority, a means of identification of
another person." The statute defines the term "means of
identification" to mean "any name or number that may be used, alone
or in conjunction with any other information, to identify a
specific individual, including any[] name, social security number,
[or] date of birth." Id. at § 1028(d)(7)(A). Relying on a Fourth
Circuit decision, Kuc argues that "means of identification"
includes only the use of information that "identifies a specific
individual," and contends that, because many people share the same
name, a name alone is rarely sufficiently unique to identify a
specific person. See United States v. Mitchell,
518 F.3d 230, 234
(4th Cir. 2008). Therefore, Kuc concludes that his use of Samuel's
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name alone to receive stolen computer parts did not qualify as
using a "means of identification" because Samuel's name is not
sufficiently unique to identify him as a specific individual.
We need not reach the merits of Kuc's statutory argument.
Even assuming that the phrase "means of identification" requires
the sum total of the identifying pieces of information to identify
a specific individual, Kuc's use of Samuel's identifying
information meets that standard. Kuc did not, as he argues, only
use Samuel's name. In reality, he used Samuel's full name in
addition to the name of Samuel's company to ship stolen computer
parts to multiple addresses.3 Together, the two pieces of
identifying information are sufficient to identify Samuel as a
specific individual and thus to support the aggravated identity
theft conviction.
Viewing the evidence in the light most favorable to the
government, a rational factfinder could easily find that the
prosecution successfully proved beyond a reasonable doubt that Kuc
used a "means of identification" as required by 18 U.S.C.
3
Kuc argues that we should not consider evidence of computer
parts that were sent to 42 Union Street in Samuel's name because
they were sent with Samuel's permission. We view this claim
skeptically, noting that Samuel certainly did not give permission
for his name to be used to perpetuate a fraudulent scheme. Even if
we do as Kuc asks, however, there were at least two documented
instances in which Kuc used Samuel's personal name, "Francisco
Samuel" together with Samuel's company name, "Abacus Software," to
receive packages at an address other than 42 Union Street.
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§ 1028A(a)(1). Therefore, we affirm the district court's denial of
Kuc's motion for a judgment of acquittal.
Affirmed.
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