United States of America v. Michael Hendrickson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 19-1843
______________

UNITED STATES OF AMERICA

v.

MICHAEL HENDRICKSON,
Appellant
______________

APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. No. 3-18-cr-00034-001)
District Judge: Hon. Curtis V. Gomez
______________

Submitted Pursuant to L.A.R. 34.1(a)
December 13, 2019
______________

Before: SMITH, Chief Judge, MCKEE, and SHWARTZ,
Circuit Judges.

(Filed: February 3, 2020)

2
______________

OPINION
______________

Everard E. Potter, I.
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802

Counsel for Appellee

Melanie Turnbull
Gabriel J. Villegas
Office of Federal Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802

Counsel for Appellant

SHWARTZ, Circuit Judge.
Michael Hendrickson appeals his conviction for
possession of contraband in prison, arguing that the evidence
was insufficient to prove that he possessed a “prohibited
object,” 18 U.S.C. § 1791(a)(2), (d)(1)(F), or that he was an

3
“inmate of a prison,” id. § 1791(a)(2), (d)(4). Because the
evidence was sufficient, we will affirm.

I

Hendrickson was a pretrial detainee held on territorial
charges in the custody of the Virgin Islands Bureau of
Corrections (“BOC”). The facility where Hendrickson was
held houses both federal and territorial offenders, based on an
agreement that the BOC has with the United States Marshals
Service (“USMS”).

During a routine pat-down, a corrections officer found
a cell phone in Hendrickson’s pocket. When the phone was
activated, it displayed an AT&T logo and asked for a
password. The phone, however, was missing its SIM card, a
removable chip that allows the phone to connect to a cellular
network. Without the SIM card, the phone was unable to
receive calls and could make calls only to 911. Hendrickson
told the corrections officer that he had been using the phone as
“an MP3 player,” a device used to play music. App. 109.
Because the phone was password-protected, the Government
did not search the phone for text messages, emails, or other
data.

A jury found Hendrickson guilty of possession of prison
contraband under 18 U.S.C. § 1791(a)(2). The District Court
denied Hendrickson’s motions for a judgment of acquittal
under Federal Rule of Criminal Procedure 29. Hendrickson
appeals.

4
II
1

Hendrickson challenges the sufficiency of the evidence
underlying his conviction,
2
arguing that no reasonable juror
could find that (1) the phone he possessed was a “prohibited
object,” 18 U.S.C. § 1791(a)(2), (d)(1)(F), or (2) he was “an

1
The District Court had jurisdiction under 18 U.S.C.
§ 3241 and 48 U.S.C. § 1612. We have appellate jurisdiction
under 28 U.S.C. § 1291.
2
We review a sufficiency challenge de novo. United
States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012). When
deciding such a challenge, we apply a “particularly deferential
standard of review.” United States v. Dent, 149 F.3d 180, 187
(3d Cir. 1998). We review the record “in the light most
favorable to the prosecution to determine whether any rational
trier of fact could have found proof of guilt[] beyond a
reasonable doubt.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 430 (3d Cir. 2013) (en banc) (alteration in
original). “We do not weigh evidence or determine the
credibility of witnesses in making this determination.” United
States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003). Rather,
we view the evidence as a whole and “ask whether it is strong
enough for a rational trier of fact to find guilt beyond a
reasonable doubt.” Caraballo-Rodriguez, 726 F.3d at 430.

5
inmate of a prison,” id. § 1791(a)(2), (d)(4). Both claims lack
merit.

A

1

The prison-contraband statute, 18 U.S.C. § 1791,
provides, in relevant part, that “[w]hoever . . . being an inmate
of a prison . . . possesses . . . a prohibited object . . . shall be
punished” as provided in the statute. 18 U.S.C. § 1791(a)(2).
“[P]rohibited object[s]” include “a phone or other device used
by a user of commercial mobile service (as defined in section
332(d) of Title 47) in connection with such service.” Id.
§ 1791(d)(1)(F). Section 332 is part of the Communications
Act. The Act defines a “commercial mobile service” as,
generally speaking, a for-profit service that provides wireless
access to the network of ten-digit telephone numbers used by
most phones in North America.
3
See 47 U.S.C. § 332(d)(1)
(defining “commercial mobile service” as a “mobile service . . .
that is provided for profit and makes interconnected service
available” to the public or other large group of users); id.
§ 153(33) (defining “mobile service” as “a radio
communication service” carried on between various stations or
receivers); id. § 153(40) (defining “radio communication” as
“the transmission by radio of writing, signs, signals, pictures,
and sounds”); id. § 332(d)(2) (defining “interconnected
service” as a “service that is interconnected with the public
switched network”); Mozilla Corp. v. F.C.C., 940 F.3d 1, 36

3
We do not opine whether this is the exclusive type of
service contemplated by the term “commercial mobile service”
in the Communications Act.

6
(D.C. Cir. 2019) (noting that regulations have defined the
“public switched network” as, broadly speaking, a network that
provides access to the ten-digit, North American telephone-
numbering system (citing In re Restoring Internet Freedom, 33
FCC Rcd. 311, ¶ 66)).

In this case, we must determine whether the item that
Hendrickson possessed was a “phone or other device used by
a user of a commercial mobile service . . . in connection with
such service.” 18 U.S.C. § 1791(d)(1)(F). Hendrickson argues
that a phone is a prohibited object under this provision only if
its commercial mobile service functions have previously been
used and that his conviction should be reversed because there
was no evidence that he ever used these functions.
We disagree.

Hendrickson’s argument depends on reading the word
“used” in the phrase “phone or other device used by a user of
commercial mobile service . . . in connection with such
service,” 18 U.S.C. § 1791(d)(1)(F), to mean “previously
used.” Depending on the context, the past participle “used”
can either (1) indicate the past tense of the verb “to use,”
meaning that the applicable “device” must be one that was
previously used in connection with commercial mobile service,
or (2) serve as an adjective to describe the type of device
covered by the statute, meaning that the “device” must be one
that is generally used in connection with commercial mobile
service. See Bernal v. NRA Grp., LLC, 930 F.3d 891, 895 (7th
Cir. 2019) (explaining that past participles can either “refer[]
to a completed event” or “describe[] the present state of the
nouns they modify,” depending on context (citing Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1722 (2017);

7
Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S.
33, 41 (2008))).

The indefinite article “a” in the phrase “a user” implies
that the word “used” in § 1791(d)(1)(F) is an adjective
describing the type of “device” covered by the statute.
18 U.S.C. § 1791(d)(1)(F). The indefinite article has a
“generalizing force” on the noun that follows it, “user.”
Campos-Hernandez v. Sessions, 889 F.3d 564, 570 (9th Cir.
2018); see Am. Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir.
2000) (citing, inter alia, Blacks Law Dictionary 1477 (6th ed.
1990)). It indicates that the phrase “a user” refers to users
generally, rather than to one particular user. See Shamokin
Filler Co. v. Fed. Mine Safety & Health Review Comm’n, 772
F.3d 330, 336 (3d Cir. 2014) (explaining that the phrase “the
coal mine” refers to one “particular place,” whereas the phrase
“a coal mine” refers to “a typical, paradigmatic, ‘usual’ coal
mine” (quoting RNS Servs., Inc. v. Sec’y of Labor, 115 F.3d
182, 185 (3d Cir. 1997))); see also McFadden v. United States,
135 S. Ct. 2298, 2304 (2015) (“When used as an indefinite
article, ‘a’ means ‘[s]ome undetermined or unspecified
particular.’” (quoting Webster’s New International Dictionary
1 (2d ed. 1954))); United States v. Alabama, 778 F.3d 926,
932-35 (11th Cir. 2015) (interpreting the article “a” as a
synonym for “any”); cf. Garcia v. Sessions, 856 F.3d 27, 36
(1st Cir. 2017) (“As a matter of grammar, the word ‘any’ is not
clearly more sweeping than is the word ‘an.’”), cert.
denied, 138 S. Ct. 2652 (2018). The reference to “a typical,
paradigmatic” user, Shamokin Filler Co., 772 F.3d at 336,
indicates that Congress was focused on how the device is
typically or commonly used, not whether the device had
previously been used. Thus, contrary to Hendrickson’s
argument, § 1791(d)(1)(F) requires only that the applicable

8
device be one generally used for commercial mobile service.
It does not require proof that the inmate—or anyone else—
actually used the device’s commercial mobile service
functions.
4

4
We also conclude that the word “used” is an adjective
because reading it as a past-tense verb would produce
anomalous results. The first subsection of § 1791(a) makes it
a crime for any person to, “in violation of a statute or a rule or
order issued under a statute, provide[] to an inmate of a prison
a prohibited object.” 18 U.S.C. § 1791(a)(1). This provision
has been invoked to prosecute guards and members of the
public for passing contraband to prison inmates. See, e.g.,
United States v. Akers, 476 F.3d 602, 603-04 (8th Cir. 2007);
United States v. Long, 122 F.3d 1360, 1361 (11th Cir. 1997).
If “used” were a past-tense verb, then a visitor who slipped a
cell phone to an inmate could not be convicted unless the
Government could show that the device had previously been
“used” in connection with its commercial mobile service
capabilities. What a person does with a phone before it is
passed to a prison inmate, however, is of little concern to prison
safety, compared with the threat that a phone poses once inside
the prison. Reading “used” as a past-tense verb, therefore, does
not fit the statute’s purpose. See Dolan v. U.S. Postal Serv.,
546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any
precedents or authorities that inform the analysis.”).

9
In sum, § 1791(d)(1)(F) prohibits the possession by
inmates of devices, including cell phones, generally used to
access commercial mobile service.
5, 6

5
The words “or other” between the words “phone” and
“device” show that a “phone” is an example of the type of
device that the statute covers. 18 U.S.C. § 1791(d)(1)(F). The
word “other” usually indicates that the term that follows it is
“of the same kind as the item or person already mentioned.”
Other, Cambridge English Dictionary (2019) (online edition)
(“Other can be used at the end of a list to show that there are
more items without being exact about what they are.”);
see also Other, Oxford English Dictionary § A.5.c (2019)
(online edition). Put differently, the word “other” often
follows a specific example of the more general term that comes
after it. See, e.g., 18 U.S.C. § 1726 (prohibiting unlawful
collection of postage by “a postmaster or other person
authorized to receive the postage of mail matter”); id.
§ 1752(c)(1)(B) (referring to “the President or other person
protected by the Secret Service”). The word “other” in
§ 1791(d)(1)(F) thus reflects Congress’s identification of a
“phone” as an example of a “device used by a user of
commercial mobile service . . . in connection with such
service.” 18 U.S.C. § 1791(d)(1)(F).
Reading the entire clause, including the reference to
commercial mobile service, further reveals that the word
“phone” in § 1791(d)(1)(F) encompasses cell and mobile
phones. Compare Mozilla, 940 F.3d at 36 (noting that the
definition of “commercial mobile service” includes a service
that uses radio signals to make the telephone network available
to the public (citing 47 U.S.C. § 332(d)(1)-(3) and In re
Restoring Internet Freedom, 33 FCC Rcd. 311, ¶ 66)), with
Cell Phone, Oxford English Dictionary (defining “cell phone”

10

2

The evidence established that Hendrickson possessed a
“phone” within the meaning of § 1791(d)(1)(F). When a
corrections officer found the phone on Hendrickson, the officer
called an electronics technician, who confirmed that the device
was “definitely” a phone. App. 108. A federal agent later
examined the device, verified that it was able to power on,
observed that it displayed an AT&T logo when starting up, and
successfully made a call to 911 on it. See United States v.
Vera-Porras, 612 F. App’x 402, 405 (8th Cir. 2015) (rejecting
defendant’s sufficiency challenge to this element and citing,
inter alia, the T-Mobile logo on the phone and the jury’s
“common sense that an operational cell phone bears the logo
of its commercial carrier”). This provided evidence sufficient

as “a portable wireless telephone that transmits and receives
signals via a cellular network”), and City of Jefferson City v.
Cingular Wireless, LLC, 531 F.3d 595, 607 (8th Cir. 2008)
(collecting definitions of “cell phone” and “telephone”). We
express no view as to whether the word “phone” in
§ 1791(d)(1)(F) encompasses devices other than cell and
mobile phones.
6
We are aware of only one appellate case that has
construed § 1791(d)(1)(F), United States v. Vera-Porras, 612
F. App’x 402, 405 (8th Cir. 2015). The opinion in that case
assumed, without analysis, that a phone’s commercial mobile
service functions must previously be “used” for the phone to
be contraband—but the case made this assumption only
because the evidence that the phone had previously been so
used was overwhelming. See id. Vera-Porras, therefore, does
not meaningfully inform our interpretation of the statute.

11
for a reasonable juror to conclude that the device confiscated
from Hendrickson was a phone, as defined by § 1791(d)(1)(F).
7

For these reasons, the District Court correctly denied
Hendrickson’s motion for a judgment of acquittal because the
evidence was sufficient to prove that he possessed a
“prohibited object” under § 1791(d)(1)(F).

B

1

Hendrickson also argues that the evidence was
insufficient to prove that he was an “inmate of a prison,” as
defined under § 1791, because he was, at the time of the
offense, detained on territorial charges in a territorial facility.
In Hendrickson’s view, the statute applies only to inmates
detained on federal charges or to inmates detained in federal
facilities. We disagree.

To establish a violation of § 1791(a)(2), the
Government must prove, among other things, that the
defendant was “an inmate of a prison.” 18 U.S.C. § 1791(a)(2).
Section 1791(d)(4) defines a “prison” as “a Federal
correctional, detention, or penal facility or any prison,

7
Additionally, the jury heard evidence that the phone
was password-protected and that a SIM card can be “[v]ery
easily removed and very easily hidden.” App. 113. From this,
a reasonable juror could infer that the phone had a user who
sought to protect its use and that the phone had contained a
SIM card and, therefore, was capable of accessing commercial
mobile service.

12
institution, or facility in which persons are held in custody by
direction of or pursuant to a contract or agreement with the
Attorney General.” 18 U.S.C. § 1791(d)(4). This term does
not require the defendant to be detained pursuant to federal
charges or to be detained in a federal facility. Rather, the
defendant need only be detained in a facility in which federal
prisoners are held. See id. § 1791(d)(4). This language reflects
Congress’s intent to extend the reach of § 1791 beyond federal
prisoners and to capture the fellow inmates of federal
prisoners.

An examination of § 1791’s earlier iterations confirms
this conclusion. From 1986 until 2006, § 1791(d)(4) defined
the term “prison” as “a Federal correctional, detention, or penal
facility.” 18 U.S.C. § 1791 (1988) (amended 2006). A 2006
amendment with the header “[e]xpanded jurisdiction for
contraband offenses in correctional facilities” added to the end
of § 1791(d)(4) the words “or any prison, institution, or facility
in which persons are held in custody by direction of or pursuant
to a contract or agreement with the Attorney General.”
Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, tit. XI,
§ 1178, 119 Stat. 2960, 3126 (2006). This amendment makes
clear that Congress intended to extend the statute’s reach
beyond federal prisoners and federal facilities.
8

8
When the federal criminal code was first codified into
Title 18, § 1791 applied to any “Federal penal or correctional
institution.” An Act to Revise, Codify, and Enact into Positive
Law Title 18 of the United States Code, Pub. L. No. 80-772,
ch. 645, § 1791, 62 Stat. 683, 786 (1948). A 1984 amendment
replaced the word “institution” with the word “facility” (along
with other changes to the statute). See Continuing

13
This conclusion finds further support in the fact that
§ 1791(d)(4) differs from other definitions of the term “prison”
in the federal criminal code. Section 1792, for example,
prohibits prisoners from causing mutinies or riots, but it applies
only to “Federal penal, detention, or correctional facilit[ies].”
18 U.S.C. § 1792. Other statutes follow a similar pattern. See,
e.g., id. § 1072 (“Whoever willfully harbors or conceals any
prisoner after his escape from the custody of the Attorney
General or from a Federal penal or correctional institution,
shall be imprisoned not more than three years.”). This shows
that Congress knows how to limit the reach of the criminal law
to federal prisoners and federal facilities when it wishes to do
so. See United States v. Davis, 139 S. Ct. 2319, 2329 (2019)
(interpreting statutory language in light of “the broader context
of the federal criminal code”).

There are also sound reasons for applying the
contraband statute to all inmates in all facilities where federal
prisoners are held. In addition to cell phones, § 1791 prohibits
inmates from possessing firearms, destructive devices,
weapons, and drugs. See 18 U.S.C. § 1791(d)(1)(A)-(D). Such
contraband, when possessed by the co-inmates of federal
prisoners—regardless of whether those co-inmates are

Appropriations for Fiscal Year 1985, Pub. L. No. 98-473,
§ 1109(a), 98 Stat. 1837, 2147-48 (1984). The definition was
amended again in 1986, when it was revised to “a Federal
correctional, detention, or penal facility.” Criminal Law and
Procedure Technical Amendments Act of 1986, Pub. L. No.
99-646, § 52(a), 100 Stat. 3592, 3607 (1986). That remained
the definition until the 2006 amendment. This history reflects
that Congress acted purposefully in expanding the reach of
§ 1791 through the 2006 amendment.

14
themselves federal prisoners—endangers the safety of those
federal prisoners. Ensuring the safety of federal prisoners and
those who guard them, regardless of where the federal
prisoners are housed, is a goal advanced through the 2006
amendment. Cf. United States v. Comstock, 560 U.S. 126,
137, 143 (2010) (referring to “Congress’ power to act as a
responsible federal custodian,” which includes enacting laws
for the safety of federal prisoners).

For these reasons, we hold that the term “inmate of a
prison” in § 1791(a)(2) is not limited to federal prisoners or to
prisoners in federal facilities.
9

2

The evidence shows that Hendrickson was an “inmate
of a prison” under § 1791. At trial, a Deputy with the USMS

9
We previously stated in dicta that § 1791 “applies only
to federal prisons.” United States v. Holmes, 607 F.3d 332,
336 (3d Cir. 2010). There, the question was whether an
additional scienter requirement should be read into a part of the
statute that prohibits the possession of weapons. See id. at 335-
36. We rejected the defendant’s argument because it was
divorced “from any conceivable congressional concerns
related to the presence of weapons in correctional institutions.”
Id. at 336. Specifically, we stated that the statute’s scienter
requirements should be read narrowly because the statute
“applies only to federal prisons,” where prison safety concerns
are paramount. Id. This statement, which was made without
any analysis of the text of § 1791(d)(4) and which was not
essential to the case’s holding, pertains to the safety concerns
of prisons generally, not just federal prisons.

15
testified that the USMS has a contract with the Virgin Islands
BOC to house prisoners at Hendrickson’s facility. He also
testified that federal inmates are housed at Hendrickson’s
facility and that he routinely transports these prisoners to and
from the facility for federal court appearances. This evidence
provided a sufficient basis for a reasonable juror to find that
Hendrickson was an inmate of a facility where persons were
held “in custody by direction of or pursuant to a contract or
agreement with the Attorney General.” 18 U.S.C.
§ 1791(d)(4).
10
Accordingly, Hendrickson was properly found
to be an “inmate of a prison,” as § 1791(a)(2) requires.

III

For the foregoing reasons, we will affirm.

10
Hendrickson does not dispute that a prisoner
agreement signed by the USMS is the equivalent of one signed
by the “Attorney General” for purposes of § 1791(d)(4).
See 28 U.S.C. § 561 (specifying that the USMS is a “bureau
within the Department of Justice under the authority and
direction of the Attorney General”).