United States v. Kenneth Steven Bailey

Appellant United States of America (the “government”) appeals the acquittal of Kenneth Steven Bailey (“Defendant”) of charges involving production of, and trafficking in, counterfeit access devices in violation of 18 U.S.C. § 1029 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district court.

I. Background

A. Facts

A cellular phone places a call by transmitting its permanently assigned identification number (known as the electronic serial number or “ESN”), its assigned phone number (the Mobile Identification Number or “MIN”), and the number being called to a nearby antenna or “cell.” For a local customer, the local network confirms that the ESN and MIN match before completing the call.

To accommodate customers out of then-service area, local cellular networks permit phones other than those subscribing to the local service to complete calls in “roaming” mode. At the time of Defendant’s activities, roaming mode was more vulnerable to fraud than was the service to local subscribers. When a call was placed by a phone with an out-of-area MIN, the local service would first determine whether there was a roaming-agreement between the local carrier and the…