                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                                 DEC 07, 2010
                               No. 09-16390                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

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

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JORGE GONZALEZ,

                                                            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 Jorge Gonzalez 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. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). “[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, 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)

(internal quotation marks 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).



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

custody of, or possess a 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 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



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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

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.”



                                           4
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

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




                                           5
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, the government introduced evidence that the equipment seized in the

case was capable of making reasonable facsimiles of credit cards, and that these

facsimiles could be used just like actual credit cards to make purchases from

unsuspecting vendors. The evidence also showed that Gonzalez 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 intended to

make counterfeit credit cards. Additionally, because § 1029(a)(4) is not limited to

any particular victim, it is immaterial whether Gonzalez 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 Gonzalez

of the offense charged, we affirm his conviction.

      AFFIRMED.




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