United States v. James Culpepper Pebworth, A/K/A Snake

112 F.3d 168, 1997 U.S. App. LEXIS 8880, 1997 WL 206776

Opinions

Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Senior Judge BLACK joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge.

Appellant James Culpepper Pebworth, Jr. challenges his conviction and sentence for conspiracy to make, receive, possess, sell or otherwise transfer “an implement designed for or particularly suited for making a counterfeit or forged security with the intent that it be so used.” 18 U.S.C. § 513(b). Because we find neither of Pebworth’s arguments meritorious, we affirm his conviction and sentence.

Pebworth lived in a trailer on property that his employer leased from the former principals of Oceana Ready Mix, Inc., a corporation which had been out of business for approximately a decade. When Pebworth lost his job and had to move, he pilfered Oceana’s blank operating and payroll checks from a shed located on the property. The cheeks were to be drawn on an account at the Bank of Virginia Beach, which had also discontinued operations by the time of Pebworth’s theft. Pebworth took the checks to his new residence and planned what he described as his “big score.” J.A. at 130. He distributed the checks and false identifications to his accomplices, who negotiated them at various locations. In return, Pebworth received money from the accomplices, both directly and indirectly. For example, one of the accomplices, Perry Douglas Ward, stayed at Pebworth’s home and used proceeds of the check scam to provide Pebworth with groceries and cash and to pay Pebworth’s rent and phone bills. After Pebworth was eventually incarcerated for state crimes, he told Ward where he had hidden the remaining checks, and Ward retrieved the checks and used them in Florida.

Pebworth was convicted of conspiracy to violate 18 U.S.C. § 513(b), which makes it unlawful to make, receive, possess, sell, or otherwise transfer “an implement designed for or particularly suited for making a counterfeit or forged security with the intent that it be so used.”

Footnotes

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* Pebworth was sentenced to 27 months imprisonment, three years of supervised release, $15,150.56 in restitution, and a special assessment of $50.

Pebworth argues that, because the blank checks he possessed were in the name of a defunct corporation and drawn on a defunct bank, the district court erred in denying his motion for judgment of acquittal. Pebworth contends in this regard that the “security” referenced in § 513(b), like the “security” referenced in § 513(a), must be the security “of a State or political subdivision thereof or of an organization,” and, consequently, that subsection (b) only prohibits the possession of an implement designed for or particularly suited for making a security of a state or political subdivision or of an organization. Because the term “organization” does not include former corporations, see § 513(e)(4) (defining term “organization” as an entity “which operates in or the activities of which affect interstate or foreign commerce”), argues Pebworth, his conviction for possessing the “implements” of blank checks of a defunct corporation cannot stand.

Congress, however, simply did not require in subsection (b) that the implement, the possession of which is prohibited, be one for making a security of any particular kind of entity. The text of section 513(b) does not limit that provision’s reach to implements designed for or particularly suited for making only securities of state or political subdivisions or organizations; nor is that provision’s reach so limited indirectly through the statutory definition of “security” in section 513(e)(3).

The dissent believes that section 513(b)’s language “implement designed for or particularly suited for making a counterfeit or forged security with the intent that it be so used” is ambiguous as to whether the defendant must have had the intent to use the implement to make only securities of a state or political subdivision or of an organization, or whether an intent to use the implement to make any kind of counterfeit or forged securities is sufficient. The language is not ambiguous in this respect at all. The ambiguity that the dissent identifies exists only if one misunderstands the phrase “with the intent that it be so used” as a reference to section 513(a), which, unambiguously, it is not. As a matter of grammar, this phrase quite clearly qualifies section 513(b)’s immediately preceding noun phrase “[w]hoever makes, receives, possesses, sells or otherwise transfers an implement designed for or particularly suited for making a counterfeit or forged security,” thus confirming that the defendant must have intended only that the implement be “so used” to make “a counterfeit or forged security” (the language of section 513(b)), not that he must have intended that the implement be used to make a counterfeit or forged security “of a State or political subdivision thereof or of an organization” (the language of section 513(a)).

The explanation for the presence of the limitation in subsection (a) and the absence of any such limitation in subsection (b) is apparent. While Congress clearly intended to reach in subsection 513(a) the uttering or possession only of securities of a state or political subdivision or of an organization, it recognized that many (if not most) counterfeiting and forgery “implements,” although they may be used for making securities of state or political subdivisions or of organizations, are not designed or particularly suited for making securities of those or any other particular type entity. Therefore, limiting subsection (b) to implements designed for or particularly suited for making securities of particular entities would have left beyond the reach of the prohibition many of the very implements the possession of which it was the purpose of the statute to prohibit.

This plain meaning of the statute poses no constitutional concern at all. There is as much of an interstate commerce nexus — and, indeed, probably more — to support congressional regulation of implements with which any kind of counterfeit or forged security can be made, as there is a nexus to support Congress’ regulation of the implements for making bombs. No one would contest Congress’ authority under the Commerce Clause to regulate the possession or use of the latter.

Pebworth also argues that the district court committed clear error when it refused to reduce his base offense level pursuant to USSG § 3B1.2, which provides for a four point decrease if the defendant was a “minimal participant” and a two point decrease if he was a “minor participant.” It is clear, however, that even if Pebworth’s financial gain was less than that of his cohorts, he was anything but a minor participant in this conspiracy. He was the one who stole the checks from the shed; he maintained the checks in his possession; he provided the checks to his confederates; he received proceeds in return; he bragged that the scheme would be his “big score”; and he informed Ward of the location of the checks after he was incarcerated so that Ward could continue in the enterprise. Pebworth, in short, initiated the whole conspiracy and was instrumental to its success. Therefore, the district court did not err in considering him more than a minimal or minor participant.

The judgment of the district court is affirmed.

AFFIRMED.

18 U.S.C. § 513(b) provides in full: “Whoever makes, receives, possesses, sells or otherwise transfers an implement designed for or particularly suited for making a counterfeit or forged security with the intent that it be so used shall be punished by a fine under this title or by imprisonment for not more than ten years, or both.”