          United States Court of Appeals
                       For the First Circuit


No. 99-2061

                           UNITED STATES,

                             Appellee,

                                 v.

                         VLADIMIR CABRERA,

                       Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

                        Stahl, Circuit Judge,
                   Bownes, Senior Circuit Judge,
                     and Lynch, Circuit Judge.



     James T. McCormick for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Stephanie S. Browne, Assistant United States Attorney and
Margaret E. Curran, United States Attorney, were on brief for
appellee.




                           April 5, 2000
            STAHL, Circuit Judge.               Defendant-appellant Vladimir

Cabrera appeals his conviction for possession of a document-

making implement under 18 U.S.C. § 1028 (1994 & Supp. 1996).

Specifically, he (a) asserts that under a proper interpretation

of § 1028, the prosecution presented insufficient evidence upon

which to ground a conviction and (b) challenges the district

court's decision to limit the scope of cross-examination of a

particular government witness.              We affirm.

                                  Background

            In   early    1998,       Cabrera    and    an   accomplice,    Joseph

Medeiros,    engaged       in     a     scheme     to     produce   counterfeit

identification     documents,         including    Massachusetts      and    Rhode

Island driver's licenses, Massachusetts and Rhode Island state

employee identification cards, Rhode Island and Puerto Rico

birth certificates, U.S. Department of Health and Human Services

Social   Security        cards,       and   U.S.       Department   of     Justice

Immigration and Naturalization Service (“INS”) Resident Alien

cards.   The government's evidence supported the conclusions that

Cabrera employed a computer, a document scanner, a printer, and

commercial software that together could be used to scan, alter,

and reproduce documents.              When used in conjunction with this

hardware and software, computer files containing previously

scanned official documents stripped of all identifying material


                                         -3-
served   as    digitized   “templates”   from   which    forgeries   could

easily   be     fabricated.     First,    using    the    aforementioned

equipment, Cabrera scanned genuine documents into his computer,

saved the images on his computer hard drive and on floppy disks,

removed or altered the identifying information and photographs

on the documents, and then printed the documents on photographic

paper.   Medeiros then inserted new identifying information onto

the documents, trimmed the counterfeits, and laminated them as

appropriate.      Cabrera kept the computer equipment at his home,

while the equipment Medeiros used was stored in a suitcase that

the two owned jointly.

              On June 10, 1998, U.S. Secret Service Agents searched

Cabrera's apartment pursuant to a warrant.        They found Cabrera's

computer equipment, a board used for measuring and trimming

documents, Microsoft's “Picture It!” software, which Cabrera

apparently had used to create the counterfeit materials, the

digitized templates, and sundry fake documents in various stages

of completion.

              Subsequently, on January 20, 1999, a federal grand jury

in the District of Rhode Island returned a two-count indictment,

charging, inter alia, that Cabrera possessed document-making

implements with the intent that such implements be used in the

production of false identification documents, in violation of 18


                                  -4-
U.S.C. § 1028(a)(5).     At the relevant time period, the statute

defined “document-making implement” to mean

           any   implement  or   impression    specially
           designed or primarily used for making an
           identification      document,     a     false
           identification    document,    or     another
           document-making implement.1

Count One -- the only count relevant to this appeal2 -- was based

on Cabrera's possession of the computer, printer, and scanner.



           During Cabrera's trial, Secret Service Agent James

Mooney testified for the government regarding the templates

found on Cabrera's hard drive and on the diskettes.                Agent

Mooney   also   described    the   software   installed   on   Cabrera's

computer and how it could be used for scanning, altering and

reproducing     documents.    On   cross-examination,     Agent   Mooney

acknowledged that computers were available to the public and

that they had uses aside from those of which Cabrera stood

accused.   But when Cabrera's counsel then attempted to further


     1
     This language has since been amended and now defines
“document-making implement” as “any implement, impression,
electronic device, or computer hardware or software, that is
specifically configured or primarily used for making an
identification document, a false identification document, or
another document-making implement.” 18 U.S.C. § 1028(d)(1) (1994
& Supp. 1998) (as amended).
     2
     Cabrera was acquitted on a second count involving the
possession of rub-on letters, a laminating machine, and plastic
laminating pouches.

                                   -5-
examine him regarding the general uses to which anyone could put

computer equipment, the court intervened, and the following

sidebar exchange regarding the meaning of § 1028's “primarily

used” prong ensued:

          THE COURT: Congress might have been a little
          bit more precise in their definition, but as
          I read that definition in the context of
          this statute, I read it as referring to the
          possession and the intent of the possessor
          in putting it to use. So I think that the
          general use that anyone might put a computer
          to -- in this case, a computer to, is not
          relevant.

          . . . .

          MR. McCORMICK [Cabrera's Counsel]: I wanted
          to ask generally if [computer equipment] was
          primarily used for the making of --

          THE COURT: No, because that primarily refers
          to the possession of this individual, not
          the general public.

          At the trial's close, the district court instructed the

jury only that:

          [a]s used in these instructions, the term
          “document   making   implement”  means   any
          implement or impression specially designed
          or   primarily     used   for   making    an
          identification      document,    a     false
          identification document or another document
          making implement.

The instructions did not specify any particular meaning for the

terms   “specially   designed”   or    “primarily   used.”   Although

Cabrera's counsel did not object to these instructions, the


                                 -6-
government did object, stating that they did not adequately

specify that the statute referred to Cabrera's primary use of

the equipment rather than the general uses to which any computer

user primarily would put such equipment.

           Meanwhile, Cabrera had moved for judgment of acquittal

on both counts, arguing that “on the evidence presented, it

ha[d] not been shown that the computer, printer and scanner

referred     to   in    the    indictment      [we]re    document   making

implements.”      The   district    judge     reserved   judgment   on   the

motion.    On May 21, 1999, the jury convicted Cabrera on Count

One, and the district judge denied his motion for a judgment of

acquittal on that count.        Cabrera appeals.

                                 Discussion

           We address, in turn, the sufficiency of the evidence

supporting     Cabrera's      conviction    and   the    district   court's

decision to curtail Cabrera's cross-examination of Agent Mooney.

Both issues turn on the interpretation of former 18 U.S.C.

§ 1028.

I.   Sufficiency of the Evidence

           Cabrera argues first that his computer system was not

proven to constitute a document-making implement within the

meaning of the statute, because “there was no proof, either

directly [sic] or by inference, that [it] was . . . specially


                                    -7-
designed or generally used to produce identification documents,

false    identification           documents        or    other     document         making

implements.” (Emphasis added.)                To determine the sufficiency of

the     evidence,      we      "canvass           the    evidence       (direct        and

circumstantial) in the light most agreeable to the prosecution

and    decide     whether     that      evidence,       including      all    plausible

inferences extractable therefrom, enables a rational factfinder

to    conclude     beyond     a    reasonable       doubt    that      the    defendant

committed the charged crime."                 United States v. Noah, 130 F.3d

490, 494 (1st Cir. 1997).

             A.    “Specially Designed”

             We    first    find     that     Cabrera's     computer         system   was

“specially        designed”       for   the     production       of    identification

documents.        As an initial matter, we hold that the statute's

text    is   unambiguous.          It    does     not    exclude      from    its   reach

implements that could have legitimate other uses if not altered

by the perpetrator's modifications.                     Cabrera suggests that the

“specially designed” prong refers not to a defendant's specific

implements, but to implements that                      as a class are uniquely

configured to fabricate false identification documents.                                His

interpretation is not tenable.                Neither the statute nor Cabrera

provides any basis upon which a court could determine the proper

level of generality at which to define the class.                             Should we


                                            -8-
look to the class of “computers fitted with scanners, printers,

document-altering software and digitized templates”?                   The class

of   all    “computers”?           All    “electronic     implements”?        All

“implements” of any sort?                Nothing in § 1028 requires such

arbitrary classification.                Rather, the statute unambiguously

asks the fact-finder to consider whether the item that the

defendant is charged with possessing was “specially designed”

for producing forgeries.

             Asserting that the statute is ambiguous, Cabrera notes

that courts may look to a statute's legislative history when its

language     itself    is    not   conclusive     and    clear.      See,   e.g.,

Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S.

454, 461 (1987); Arnold v. United Parcel Serv., Inc., 136 F.3d

854, 858 (1st Cir. 1998).           But even if § 1028 were unclear (and

we   believe   it     is    not)   Cabrera's    resort    to   its   legislative

history would be unavailing.               The House Judiciary Committee's

report on the False Identification Crime Control Act of 1982 --

in which the disputed “specially designed” language was first

introduced -- stated that “the committee intend[ed] to exclude

implements     such    as    office      photocopying    machines,    which   are

designed for more general and legitimate purposes.”                   H.R. Rep.

No. 97-802, at 11 (1982), reprinted in 1982 U.S.C.C.A.N. 3519,

3530.      This language might support an argument that standard


                                          -9-
computer equipment, bereft of any special-purpose hardware or

software, would fall beyond the statute's reach.                         Perhaps an

offender   could,   it      would    seem,   have    used      an    ordinary    word

processor and an ordinary printer with ordinary paper to produce

false documents, just as an offender could have used an office

photocopier to do so, without having violated former § 1028.

But Cabrera's computer arrangement, unlike a standard office

photocopier,      was       specifically       designed             to   facilitate

counterfeiting.         A   modern    computer      is   not    analogous       to    an

“office photocopying machine[]” circa 1982, which in Congress's

view likely could not be altered or specialized, but rather to

a modern photocopier fitted with software and hardware that

render it uniquely suited to produce illicit materials.                     We have

no reason to believe that such a device would escape § 1028's

reach simply because both it and its 1982 analogue were called

“photocopiers.”     A photocopier configured with special-purpose

hardware   or   software      may    be   “specially        designed”      for       the

fabrication of identifying documents, and so may a similarly

configured computer.

           In fact, the more relevant portion of the legislative

history is that which precedes the language quoted above.                            The

House committee report noted that the term “document-making

implement” would include “text in a distinctive type face and


                                      -10-
layout that when reproduced [is] part of an identification

document.”      Id.       This statement, of course, accurately describes

the   templates,          which    were    merely      computer       files   containing

digital images of “text in a distinctive type face and layout.”

Alone, each template formed “part of an identification document”

and together with the inserted data, each would constitute a

complete document.

            Cabrera contends that his system was not specially

designed for the fabrication of false identification documents,

emphasizing that the hardware at issue -- namely, the computer,

printer,    and      scanner       --     were   not       uniquely     suited   to   such

activity.       However, the evidence adduced at trial permitted a

jury to conclude that Cabrera's system also included software,

such as the “Picture It!” program, which testimony indicated

“could be used . . . to accept scann[ed] images and also to

place those images onto computer-produced documents.”                                 Most

tellingly,      the       system    also    included        digitized     templates     of

various official identification documents stored on Cabrera's

hard drive and floppy disks.                A jury viewing this paraphernalia

as a whole could reasonably have deemed the system “specially

designed    .    .    .    for     making    .     .   .    a   false    identification

document.”




                                            -11-
            B.        “Primarily Used”3

            Cabrera urges that the “primarily used” prong of the

“document-making            implement”    definition   refers     to    an     item's

“general    usage”       rather    than    the   particular     use    to    which   a

defendant put it.            The government acknowledges that if it was

required to prove that as a general matter, computers, scanners,

and   printers        are    primarily    used   for   making    identification

documents        or     false     identification       documents,           Cabrera's

conviction must be overturned because the court was presented

with no evidence supporting that conclusion.                     The government

contends, however, that the relevant inquiry focuses not on the

uses of some hypothetical user, but on Cabrera's own primary use

of the computer system.             We share the government's view, and

find that a jury reasonably could have found that Cabrera's

equipment was “primarily used” for the fabrication of documents

as that term is set forth in former § 1028.

            First, as the government notes, Congress could have

used a word such as “generally” in lieu of “primarily” if it

intended the meaning that Cabrera proposes.                   Congress's choice


      3
      Judge Lynch agrees with the foregoing analysis regarding
the “specially designed” prong. She also believes that a jury
reasonably could have convicted Cabrera under the “primarily
designed” prong, but would employ a standard different from that
posited below. Thus, she joins the opinion to this point, as
well as Part II and the opinion's conclusion, but declines to
join this section.

                                          -12-
not to use that term suggests that it did not intend the inquiry

to focus on an item's typical use within society.               Relatedly,

the section's legislative history suggests that Congress fully

expected § 1028 to cover implements that were “generally” used

for purposes other than the fabrication of documents.            The House

Judiciary Committee report noted that “specialized paper or ink”

could constitute document-making implements under the “primarily

used” prong.     H.R. Rep. No. 97-802, at 11, reprinted in 1982

U.S.C.C.A.N. at 3530.   Paper and ink -- even “specialized” paper

and ink -- are not “generally” used for the production of false

identification    documents,   but   could,   in   a    given    case,   be

“primarily used” in the service of such ends by a particular

defendant.   The committee's remarks, then, lend credence to the

government's   case-specific   interpretation      of   the     “primarily

used” prong.

         Moreover, the treatment which former § 1028 has been

accorded by the courts suggests that “primarily used” refers to

the defendant's primary use of the item in question.              While no

court appears to have analyzed the meaning of this prong, it has

been found to encompass an assortment of paraphernalia not

“generally” used for illicit purposes, including laminating

machines, plastic laminating pouches, packets of rub-on letters,

erasers, tape, scissors, and small photographs.                 See, e.g.,


                                -13-
United States v. Castellanos, 165 F.3d 1129, 1130 (7th Cir.

1999); United States v. Pearce, 65 F.3d 22, 24-26 (4th Cir.

1995).

          Finally, as the government points out, at least one

other statute with language similar to § 1028's has been treated

in a manner consistent with the government's position here.   The

statute prohibiting fraud in connection with an “access device”

addresses, inter alia, “device-making equipment,” and defines

that term to mean “any equipment, mechanism, or impression

designed or primarily used for making an access device or a

counterfeit access device.”      18 U.S.C. § 1029(e)(6) (1994 &

Supp. 1998) (emphasis added).   The Eleventh Circuit, in applying

this statute, examined whether a defendant's mobile phone was

primarily used to make an access device or a counterfeit access

device.   See United States v. Morris, 81 F.3d 131, 132-34 (11th

Cir. 1996).   Although the court ultimately found that it was

primarily used by the defendant for making telephone calls and

that it therefore did not fall within the ambit of § 1029(e)(6),

the court's very pursuit of the inquiry reflected its belief

that what mattered was the particular use to which the defendant

put the device, not its “general” use within society.    See id.




                                -14-
           The evidence showed that Cabrera repeatedly used his

computer, scanner, printer, software, and digitized templates to

create false identification documents.           This system was used in

conjunction     with     laminates,    Exacto    blades,   a   supply    of

photographic-quality        paper,      and     genuine    identification

documents.     There was no evidence to demonstrate that Cabrera

used his system for any other purpose.          The jury thus reasonably

could have found that this equipment was “primarily used” for

Cabrera's document production.

II.   Curtailment of Agent Mooney's Cross-Examination

           Cabrera also challenges the district court's refusal

to allow his attorney to cross-examine Mooney regarding the

“primary     use”   to    which   other     individuals    generally    put

computers.     In view of the preceding ruling, this testimony

would have been irrelevant, and therefore inadmissible.                 See

Fed. R. Evid. 401; Fed. R. Evid. 402.               “We generally will

reverse a district court's admissibility determinations under

Federal Rule[] of Evidence 402 . . . only in extraordinarily

compelling circumstances.”        United States v. Rosario-Diaz, 202

F.3d 54, 70 (1st Cir. 2000).            No such circumstances warrant

reversal here.




                                     -15-
                        Conclusion

         For the reasons stated herein, we   AFFIRM Cabrera's

conviction.




                           -16-
