Appeal from the United States District Court for the Southern District of Florida. (No. 93-6133-CR-KLR). Kenneth L. Ryskamp, Judge.
Before Hatchett and Barkett, Circuit Judges, and Oakes,*fn* Senior Circuit Judge.
OAKES, Senior Circuit Judge:
This appeal is from a judgment of conviction entered on October 24, 1994 by the United States District Court for the Southern District of Florida, Kenneth L. Ryskamp, Judge, against the appellant Paul Morris ("Morris") for violation of 18 U.S.C. § 1029(a)(4) (1988). On appeal, Morris argues that § 1029(a)(4) does not criminalize the possession and sale of altered cellular phones that access cellular services without charge. He also contests the sentence he received as improperly calculated under the Federal Sentencing Guidelines. We agree with Morris that § 1029, as it read at the time of Morris's conviction, cannot be extended to reach the conduct for which he was convicted. Accordingly, we reverse.
Morris was indicted in July 1993 under the Credit Card Fraud Act, 18 U.S.C. § 1029(a)(4) (1988), for selling a cellular phone to an undercover Secret Service agent. The phone had been altered so that its electronic serial number ("ESN") could be reprogrammed from the phone's keypad.
An ESN is an eight-digit number that is programmed onto a microchip in an individual phone and is designed to identify permanently the instrument just as a vehicle identification number identifies an automobile. A cellular phone connects a call by transmitting its ESN, its mobile identification number ("MIN") (a ten-digit number identifying the subscriber), and the number being called to a nearby cell, which in turn transmits it through local or long distance telephone lines. If the call is local, the local carrier confirms that the ESN/MIN combination corresponds to a subscriber's account.
In order to accommodate long distance calls, local carriers have "roamer" agreements with other carriers that permit customers to place calls from outside their local service area. The local carrier for the geographic area where the call originates relays the phone's ESN/MIN combination to a computer clearing house which subsequently verifies that the combination matches a valid account. If an ESN/MIN combination is not matched with an account, no further service is allowed. Because the clearing houses cannot instantly verify an ESN/MIN combination, however, there exists a window of time in which calls can be made from the phone even if the combination is invalid.
A cellular phone can be used to circumvent normal billing procedures by "tumbling," or changing the ESN/MIN combination to take advantage of this free-call window. A "tumbling" cellular phone is one in which the phone's original ESN microchip has been replaced with one that allows the phone's ESN to be changed from the keypad. Calls made from such phones are untraceable because the ESN is not connected to any subscriber's account. The caller can use a fictitious ESN until the clearing house recognizes the ESN/MIN combination as invalid, and then repeat the process by "re-tumbling" the ESN and MIN to create a new combination.
The government indicted Morris in July 1993 for one count of violating 18 U.S.C. § 1029(a)(4)*fn1 by selling a tumbling cellular phone complete with instructions for reprogramming the phone's ESN. Following a three-day trial at which Morris introduced no evidence, a jury found him guilty. The court sentenced Morris to 14 months imprisonment in October 1994.
In this appeal, Morris seeks reversal of the jury verdict on the ground that § 1029 did not criminalize the use of tumbling cellular phones at the time of his indictment. Morris also contends that the district court misapplied the Federal Sentencing Guidelines in determining his sentence. We agree with Morris that § 1029(a)(4) does not apply in his case and therefore do not address his sentencing arguments. We review the district court's analysis of § 1029's applicability de novo. James v. United States, 19 F.3d 1, 2 (11th Cir. 1994) (per curiam); United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir.1991).
In 1993, § 1029 read in ...