United States v. Chi-Cheong

115 F.3d 874, 1997 U.S. App. LEXIS 14876
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 20, 1997
Docket94-4344, 94-4346, 94-4347 and 94-4366
StatusPublished
Cited by30 cases

This text of 115 F.3d 874 (United States v. Chi-Cheong) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chi-Cheong, 115 F.3d 874, 1997 U.S. App. LEXIS 14876 (11th Cir. 1997).

Opinions

PER CURIAM:

Defendants pleaded guilty to RICO and RICO conspiracy for a scheme in which, using phony credit cards, they made large purchases of expensive goods from luxury stores in the Miami vicinity. The detailed facts are set out in the decision of the district court denying motions to suppress, U.S. v. Wai-Keung, 845 F.Supp. 1548 (S.D.Fla.1994), and need not be repeated here.

Defendant Li Chi-Cheong was granted leave to appeal from denial of his motion to suppress on two grounds: lack of probable cause to arrest, and the taking of his statement allegedly in violation of Miranda.

The district court did not err in holding there was probable cause to arrest Li. Agent Cachinero made the arrest. He was experienced in credit card fraud and had beén trained by the Secret Service in identification' of fraudulent cards. He was assigned to the access device fraud squad in the Miami office of the Secret Service.

In early January 1993 Cachinero learned of an investigation in West Palm Beach of Asian males posing as rich businessmen and purchasing high-end items with fraudulent credit cards. On January 12 Cachinero responded to a call from a jeweler in the Bal Harbor Mall. The store clerk had noticed that an Asian male wanted to purchase two expensive watches with a credit card. The clerk, who knew of the West Palm Beach investigation, became suspicious. When the clerk attempted to verify the card the suspect fled, leaving behind a fraudulent credit card and fake license.

Cachinero next learned, from representatives of other Bal Harbor Mall stores, of an organized gang of Asian men using fraudulent credit cards to purchase expensive merchandise. According to clerks at one of the victimized stores the men operated in pairs, with one of the pair presenting the credit card and the other standing inconspicuously in the background.

[876]*876Cachinero also spoke with a fraud investigator for MasterCard, who confirmed that there was an organized ring of Asian males victimizing local stores with fraudulent credit cards.

On January 28 Cachinero received a call stating that there were four Asian men in the Saks store at Bal Harbor, making large purchases using credit cards, some of which were being rejected, and that the men fit the modus operandi described above. Cachinero came to Saks. The suspects had departed, but he was shown a videotape of them. It showed two Asian men at one counter and two at another. And it showed at one counter a person purchasing merchandise, then furtively handing something to a stocky heavyset man nearby. The two men at the other counter were making large purchases with credit cards.

Cachinero thought the behavior of the four individuals was suspicious, in part because of the hand-off of an object from one man to the other, and because the men appeared nervous, and because they fit the profile of the Asian group that had been involved in previous incidents.

Cachinero was advised by an off-duty policeman at the mall that four Asian men were making large purchases in another store. Cachinero entered that store and saw three men he had not seen before in the company of the stocky, heavyset man that he had earlier seen. The other three men present were defendants Li, Sun and Tam. Sun was at the counter. Tam and Li were “browsing among the merchandise.” Tam held up a shirt and talked to Li about it. The heavyset man sat in a chair facing the mall acting, according to Cachinero, as a lookout. Ca-chinero approached the counter at which Sun was standing and observed him utilizing a credit card that he could see was false. While the charge for Sun’s purchase was being processed all four defendants went outside and smoked and talked among themselves. They re-entered, Cachinero saw Sun sign a credit card receipt, and the cashier then handed a bag of merchandise to someone in the group. The four men left together.

The heavyset man was seen to leave the others, and Li, Sun and Tam proceeded to another store. There the three of them were observed at the cashier’s counter standing next to each other. Sun signed what appeared to be a credit card receipt; Tam and Li were next to him when he did so. A bag of merchandise was handed to one of the three.

Cachinero approached the three defendants, identified himself as a Secret Service agent, and asked for identification. Sun produced a driver’s license and credit card, both appearing to be phony. Li produced a Florida driver’s license in his name. He had no credit cards. Cachinero took the three into custody.

The district court did not err in concluding that there was probable cause to arrest Li. Li does not deny that he was part of the group, the members of which were acting illegally, and it cannot be inferred from the evidence that he was not a member. He talked to Tam, stood next to members utilizing phony cards, left one store with the group when they went outside to smoke and talk while a charge was being processed, and re-entered with the group. The group was a multi-person operation, following a methodology previously identified, composed of persons of similar identity (Asiatic males), operating in similar sites (luxury stores) and doing the same thing (purchasing high-level items with fake credit cards). There is no basis on which it can be concluded, as Li suggests, that he was just waiting while others purchased merchandise or just watching them make purchases.1

Li relies upon Swint v. City of Wadley, 5 F.3d 1435 (11th Cir.1993). In that case a [877]*877confidential informant entered a club and was sold drugs by a patron. The informant signaled for a raid and search to begin: The seller was arrested immediately but persons inside the club were prevented from leaving until the raid, which lasted one to one-and-a-half hours, was over. During a second raid the seller could not be found and no arrest was made, but people inside the club were held at gunpoint and told to he on the floor during the raid, which again lasted from one to one-and-a-half hours. Two night club owners, an employee and a patron sued the officers. The court affirmed the denial of qualified immunity to the officers. They did not have arguable cause to conduct extensive raids, searches of the premises, or seizure of patrons, as there was no evidence that persons in the club were involved in illegal activity except for the seller of the drugs. Search and seizure of one suspect, the seller, in a public place could not be bootstrapped into the probable cause for a broad based search of the business and its patrons. 5 F.3d at 1444.

In the present case Cachinero’s observations and corroborated tips supplied the requisite link between Li, the other defendants, and their credit card fraud scheme. Li was a member of the group, all members of the group including Li were suspected of engaging in criminal activity based on their activities at the Bal Harbor Mall. Other defendants were not suspected of these crimes independently of Li but as group participants. Caehinero had evidence from his own observations, an informant and the store video.

U.S. v. Gonzalez, 969 F.2d 999 (11th Cir.1992) dealt with the effect of an officer’s mistaken belief of fact on his determination of probable cause.

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Cite This Page — Counsel Stack

Bluebook (online)
115 F.3d 874, 1997 U.S. App. LEXIS 14876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chi-cheong-ca11-1997.