Appeal from the United States District Court for the District of Nevada. D.C. No. CR-93-0071-LDG. Lloyd D. George, District Judge, Presiding.
Before: Otto R. Skopil, Jr., William A. Norris, and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Hall.
Jose Alonso was convicted of one count of conspiracy, and one count of fraud and attempted fraud in connection with access devices (credit cards) in violation of 18 U.S.C. §§ 371, 1029(a)(1), and 1029(b)(1). The arrest and conviction stem from Alonso's participation in a scheme in which Alonso provided fake credit cards to his coconspirators. He and his coconspirators then would enlist a "friendly" store that would process their fraudulent charges and provide cash or jewelry. The Secret Service in conjunction with the Las Vegas Metropolitan Police Department arranged a sting, and arrested Alonso and two of his coconspirators.
A jury convicted Alonso on September 17, 1993. On February 11, 1994, the district court sentenced him to 30 months incarceration. On appeal, Alonso raises a variety of issues regarding his conviction and sentence. For the reasons that follow, we affirm.
Secret Service agents Operskalski and Brenner went undercover to a hotel in Las Vegas. They met with an individual who introduced them to Peloche, one of the conspirators.
When agent Operskalski told Peloche that he had friends in the jewelry business, Peloche proposed the scheme: Peloche had a friend, who turned out to be the defendant in this case, Jose Alonso, who could supply fake credit cards. Peloche suggested that Operskalski take Peloche and his coconspirators to a merchant who would be willing to generate $100,000 in fake credit card vouchers. The proceeds would then be split, with half going to Peloche and his partners, and half going to Operskalski and the cooperating merchant. Peloche claimed that a man would be arriving from Miami that night with the fake cards. Alonso did in fact fly into Las Vegas that night from Miami.
The next day, agent Operskalski, along with agent Brenner, met Peloche on the street outside a casino. Peloche was accompanied by Alonso and by Velazco. During the course of the conversation between Operskalski and Peloche, Alonso scanned the area and examined the interiors of nearby parked cars.
Following a disagreement between Operskalski and
Peloche regarding the amount to be charged, Alonso and Velazco joined the conversation. Alonso said that he only wanted to charge $20,000 that day, and more on following days. Operskalski agreed to this lower figure, but did not agree to meet again the following day.
All five people then went to a nearby jewelry store, the owner of which had already agreed to participate in the sting. Operskalski and Peloche began processing the cards in the rear of the store while Alonso remained at the entrance, studying the owner and acting as a lookout. Alonso appeared to become suspicious of the undercover agents and told Peloche in Spanish, "no more." The agents and others then arrested all three conspirators.
At trial, the prosecution sought to have agents Operskalski and Brenner testify as experts regarding Alonso's counter-surveillance activities.*fn1 Over Alonso's objection, both agents gave expert opinions that Alonso's behavior was consistent with counter-surveillance techniques.
After a two day trial, the jury convicted Alonso. Alonso made several objections to his presentence report, which the district court overruled. Alonso is currently serving a thirty month sentence, to be followed by a three year period of supervised release and a $100 special assessment. Alonso appeals from his conviction and sentence. He argues that the district court erred in admitting expert testimony regarding his engagement in counter-surveillance, that the prosecution failed to present evidence sufficient to support the conviction, and that the district court erred in imposing a two-level ...