                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16403         ELEVENTH CIRCUIT
                                                     DECEMBER 7, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 09-20038-CR-ASG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

BIENVENIDE BAUTISTA,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (December 7, 2010)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Bienvenide Bautista challenges the sufficiency of the evidence
relating to his conviction for one count of knowingly, and with intent to defraud,

possessing device-making equipment, in violation of 18 U.S.C. § 1029(a)(4).

      We review de novo the sufficiency of the government’s evidence produced

at trial, viewing the evidence in the light most favorable to the prosecution, with all

reasonable inferences and credibility choices made in the government’s favor.

United States v. SPARC, 568 F.3d 1236, 1244 (11th Cir. 2009). However, when a

defendant presents rebuttal evidence after the denial of a motion for judgment of

acquittal based on the government’s case-in-chief, he has waived the right to

challenge the sufficiency of the evidence based solely on the government’s

presentation of evidence. United States v. Alexandra, 118 F.3d 1518, 1520-21

(11th Cir. 1997). Consequently, where a defendant presents evidence, we will

review all of the evidence presented, not just the evidence presented by the

government. Id. at 1521. Moreover, when a defendant presents evidence, and asks

the jury to evaluate his evidence against the government’s case, he “cannot insulate

himself from the risk that the evidence will be favorable to the government.”

United States v. Thomas, 987 F.2d 697, 702 (11th Cir. 1993) (internal quotation

marks omitted).

      “[I]t is not necessary that the evidence exclude every reasonable hypothesis

of innocence or be wholly inconsistent with every conclusion except that of guilty,



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provided that a reasonable trier of fact could find that the evidence established guilt

beyond a reasonable doubt.” United States v. Merrill, 513 F.3d 1293, 1299 (11th

Cir. 2008) (quotation omitted). Thus, “our sufficiency review requires only that a

guilty verdict be reasonable, not inevitable, based on the evidence presented,”

because “the jury is free to choose between or among the reasonable conclusions to

be drawn from the evidence presented at trial.” United States v. Woodard, 531

F.3d 1352, 1360 (11th Cir. 2008) (internal quotation marks omitted). The

credibility of a witness is the “sole province” of the jury. United States v.

Hamaker, 455 F.3d 1316, 1334 (11th Cir. 2006). Additionally, it is the jury’s

responsibility to weigh and resolve conflicts in the evidence. United States v.

Pearson, 746 F.2d 787, 794 (11th Cir. 1984).

      It is illegal for any person to knowingly produce, traffic in, have control or

custody of, or possess device-making equipment with intent to defraud. 18 U.S.C.

§ 1029(a)(4). “[T]he term ‘device-making equipment’ means any equipment,

mechanism, or impression designed or primarily used for making an access device

or a counterfeit access device.” Id. § 1029(e)(6) (emphasis added). The term

“access device” is defined as “any card, plate, code, account number, or other

means of account access that can be used, alone or in conjunction with another

access device, to obtain money, goods, services, or other thing of value, or that can



                                           3
be used to initiate a transfer of funds (other than a transfer originated solely by

paper instrument).” Id. § 1029(e)(1). Intent to defraud has often been defined as

“the specific intent to deceive or cheat, for the purpose of either causing some

financial loss to another, or bringing about some financial gain to one’s self.”

United States v. Klopf, 423 F.3d 1228, 1240 (11th Cir. 2005) (internal quotation

marks omitted).

      It appears that we have analyzed § 1029(a)(4) in depth only once. See

United States v. Morris, 81 F.3d 131 (11th Cir. 1996). Although § 1029 has been

amended since we considered the statute in Morris, the amendments are not

relevant to this case. See id. at 134 (noting that Congress had amended §

1029(a)(4) to specifically criminalize possession of the cell phones at issue in the

case); see also United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997)

(noting that § 1029 had been amended in 1994 to include telecommunications

equipment identifier as an “access device”).

      In Morris, the defendant had been convicted under a prior version of § 1029

for possessing and selling altered cell phones that could access cellular services

without charge. Morris, 81 F.3d at 132. In particular, the cell phones had altered

microchips that could be reprogrammed by a user to allow for free long-distance

phone calls. Id. In Morris, we analyzed the particular use to which the defendant



                                            4
put the devices – the phone themselves, including the microchips – and determined

that they were technically not “designed or primarily used for making an access

device,” as they were primarily used and designed to make telephone calls, not to

make reprogrammed microchips that allowed for free phone calls. Id. at 133-34.

      We held in Morris that the relevant device-making equipment was the

equipment used to make the altered microchip in the cellular phone and “not the

actual altered cellular phone itself,” and that the altered microchip, not the phone,

permitted the owner to commit a fraud. Id. Moreover, we held that § 1029(a)(4)

was “applicable only to those devices which access[ed] an individual account, such

as a credit card,” because, to find otherwise, would “turn § 1029 into a general

theft statute applicable whenever a company can document a loss through fraud.”

Id. at 134 (internal quotation marks omitted) (noting, however, that § 1029 had

been amended after the defendant’s conduct, and the amended statute specifically

criminalized the defendant’s conduct).

      Although we have yet to interpret the phrase “intent to defraud,” as used in

§ 1029(a)(4), in other instances, we have held that, unless a statute specifies an

intended victim, the phrase is “comprehensive,” making it “immaterial whether the

offender intended to defraud the government or some particular individual.” See

United States v. Bradshaw, 840 F.2d 871, 875 (11th Cir. 1988) (interpreting other



                                           5
counterfeiting statutes, and stating that if Congress intended to limit the intent

requirement to a particular victim, “it would have plainly said so”). In other

contexts, we have held that where a specific, identifiable victim is not listed as an

element of the offense, it is not relevant whether the defendant “personally knew

of, communicated with, or directed activities towards” any of the victims of the

offense. See United States v. Munoz, 430 F.3d 1357, 1369 (11th Cir. 2005).

Moreover, all knowing participants in a fraudulent scheme are legally liable for the

actions of an individual who acts to carry out the scheme. Id. (citation omitted).

Additionally, a jury may infer an intent to defraud from the defendant’s conduct.

See United States v. Hawkins, 905 F.2d 1489, 1496 (11th Cir. 1990) (explaining

that the government need not produce direct proof of scienter in a fraud case, but,

instead, can rely on circumstantial evidence of criminal intent).

      Here, even Bautista’s own witness stated that the equipment seized in the

case was capable of making reasonable facsimiles of credit cards. A government

witness stated that these facsimiles could be used just like actual credit cards to

make purchases from unsuspecting vendors. The evidence also showed that

Bautista and a codefendant: (1) advertised their equipment as having the capability

to make counterfeit credit cards; (2) explained how to make counterfeit credit

cards; and (3) were fully aware that the government’s confidential informant



                                           6
intended to make counterfeit credit cards. Moreover, Bautista’s efforts to conceal

the nature of the transaction evidenced knowledge that the equipment was not

designed solely to produce employer identification cards, as he suggests.

Additionally, because § 1029(a)(4) is not limited to any particular victim, it is

immaterial whether Bautista personally knew of, had any contact with, or directed

any activities towards any specific victim. Because we conclude from the record

that the evidence was sufficient to convict Bautista of the offense charged, we

affirm his conviction.

      AFFIRMED.




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