United States Court of Appeals For the First Circuit
No. 24-1206
UNITED STATES OF AMERICA,
Appellee,
v.
LESTER ACEITUNO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Gelpí, Lynch, and Thompson, Circuit Judges.
Zainabu Rumala, Federal Public Defender Office, on brief for appellant.
John J. McCormack, Acting United States Attorney, Matthew T. Hunter, Assistant United States Attorney, and Geoffrey W.R. Ward, Assistant United States Attorney, on brief for appellee.
June 2, 2025 LYNCH, Circuit Judge. After a jury trial in 2024, Lester
Aceituno was convicted of conspiracy to commit bank fraud under 18
U.S.C. §§ 1344, 1349 and of two counts of aggravated identity theft
under 18 U.S.C. § 1028A and sentenced to 30 months in prison. On
appeal, he contends that (1) the district court erred in denying
his Rule 29 motion which argued that there was insufficient
evidence to prove beyond a reasonable doubt that he knew he was
using identifying information of a real person, as is required for
an aggravated identity theft conviction, and (2) the government's
closing argument, to which there was no objection, and its rebuttal
to defense counsel's closing constituted prosecutorial misconduct
such that he is entitled to a new trial. We reject his arguments
and affirm his conviction.
I. Background
A. Sufficiency of the Evidence
As to the first argument, we recount the facts "in the
light most hospitable to the verdict, consistent with record
support." United States v. Carmona, 103 F.4th 83, 86 (1st Cir.
2024) (quoting United States v. Concepcion-Guliam, 62 F.4th 26, 29
(1st Cir. 2023)).
Between June 2016 and October 2017, at least four
individuals engaged in a fraudulent check-cashing scheme in
Georgia, Massachusetts, and New Hampshire. The scheme was led by
a man, Ibiloya, known as "Abby." Abby provided Aceituno and other
- 2 - conspirators with stolen means of identification of real people
including names, social security numbers, dates of birth, and
counterfeit driver's licenses displaying the conspirator's
photographs along with the stolen information. The conspirators
used that information to open bank accounts, change the addresses
associated with those accounts to rented mailboxes obtained under
similar pretenses, and to deposit fraudulent checks. The
conspirators then had debit cards shipped to the new addresses and
used those cards to access the funds. Aceituno opened such
accounts in New Hampshire and Massachusetts using stolen means of
identification of real people. He signed signature cards to open
such accounts attesting the information was accurate. He also
created a mailbox and retrieved a debit card using stolen means of
identification of real people for the conspiracy's use.
Chinedu Ihejiere, a co-conspirator, testified for the
government. Ihejiere testified that Abby gave him fraudulent
checks made out in the name of the account holder which were
deposited in the accounts, and after the checks were deposited,
co-conspirators withdrew the funds using the debit cards issued
from those accounts. Ihejiere and Abby split the withdrawn funds,
with Abby receiving 75% and Ihejiere receiving 25%. Ihejiere, who
had previously been convicted for other fraud and identity-related
offenses, testified that the success of the scheme depended on
- 3 - Abby's identities being real: "[i]f [the information] wasn't real,
[the accounts] would not open."
On June 1, 2016, Aceituno opened a bank account at
Eastern Bank in the name of Tyler Teggatz. He opened another bank
account with Eastern Bank in the name of Johnathan Brome on
November 2, 2016. Teggatz and Brome, both real people, did not
know Aceituno and did not authorize him to open accounts in their
names. In October 2016 and February 2017, respectively, Aceituno
also opened accounts in the names of David A. Johnson and David R.
Johnson, real persons. The real David A. Johnson did not testify,
but David R. Johnson testified that he did not know Aceituno and
had not authorized him to open a bank account for him.
When Aceituno opened the accounts, he provided Eastern
Bank with real names, dates of birth, and social security numbers.
He also signed their names to signature cards, certifying "[u]nder
penalties of perjury" that the cards contained "my correct taxpayer
identification number." The cards further stated:
Federal law requires us to obtain sufficient information to verify your identity. You may be asked several questions and to provide one or more forms of identification to fulfill this requirement. In some instances, we may use outside sources to confirm the information. The information you provide is protected by our privacy policy and federal law.
Patrick (Pat) Childs, an Eastern Bank employee,
testified that Eastern Bank's standard procedure required it to
- 4 - run the provided identification information through ChexSystems,
a program which confirms the social security number's authenticity
and year of issuance. Eastern Bank declines to open the account
if ChexSystems indicates that the number has not been issued, and
the program checks for other discrepancies as well. In addition
to the notice on the signature cards, Eastern Bank makes persons
who open accounts aware of this verification process through
multiple means: it verbally informs customers that it will run
their information through ChexSystems, and it places placards at
customer service desks with the same information.
In April 2017, Aceituno created a mailbox at a
check-cashing business in East Boston using the identification
information of Jonathan Smith, a real person. In doing so,
Aceituno filled out a postal service form and provided a false
driver's license with Smith's identification information. Abby
subsequently gave Ihejiere the mailbox key, and Ihejiere received
debit cards and other bank materials at the mailbox.
The conspirators attempted to use each of the accounts
that Aceituno opened before Eastern Bank investigated and then
froze the accounts.1 As to the Teggatz account, by July 25, 2016,
the conspirators had obtained a debit card for the account and
1 The government did not introduce evidence about the conspirators creating mailboxes under the names of Teggatz, Brome, David A. Johnson, or David R. Johnson.
- 5 - were making deposits. In August of 2016, Ihejiere deposited checks
for $12,012.16 and $19,945.09, and the conspirators made
withdrawals until one of the checks bounced. At that point,
Eastern Bank reached out to law enforcement. As to the David A.
Johnson account, a conspirator called Eastern Bank multiple times
attempting to obtain a debit card before the bank froze the
account. The conspirators also attempted to obtain a debit card
for the Jonathan Brome account, but Eastern Bank froze the account
before the conspirators could make any deposits besides the opening
deposits. Eastern Bank froze the David R. Johnson account after
Ihejiere deposited a $22,126.45 check.
In early 2017, Ihejiere met Aceituno with Abby for the
first time in person. Sometime after that meeting, Abby invited
Ihejiere to come to Atlanta "to make some money." Ihejiere
testified that Abby told Aceituno to pay for one of his flights to
Georgia. While in Georgia, Ihejiere opened a bank account at Fifth
Third Bank under the name of Paul Vansambeek, a real person. Abby
and Aceituno were present when Ihejiere then created a mailbox in
Vansambeek's name, and Abby told Ihejiere that Aceituno would
retrieve documents from the mailbox. Ihejiere later received an
ATM card and pin number for the account through the mailbox. Upon
returning to Massachusetts, Aceituno deposited Ihejiere's share of
the funds from the Vansambeek account in Ihejiere's personal
account.
- 6 - B. Closing Argument and Rebuttal
We describe the prosecution's statements challenged by
Aceituno and the context in which they were made including the
statements in closing by defense counsel, which were responded to
in the government's rebuttal. The prosecution made a number of
statements related to Pat Childs's testimony during closing
arguments:
1. "[Aceituno] stood there in front of a placard. Now, remember Pat Childs told you that there were placards in the Eastern Bank branches telling customers that their information would be run through that ChexSystems system and it would be run at the time of the opening of the account. The defendant stood there and was told as well by a bank employee again, remember Pat Childs's testimony, that the information he provided would be run, would be checked through that system. He doesn't leave. You saw no sign in the video and in the stills that he flinched and ran out of there."
2. "[Aceituno] once again went by and sat near those placards, heard that warning from the bank employee that the information he provided would be run and would be checked."
3. "[Aceituno] again was given warnings and was undeterred" and "[t]he warnings he was given did not deter him."
4. "Kara Mann, way back on Monday, the Fifth Third Bank employee you heard from first, showed you, as did Pat Childs, the signature cards for the bank account openings. And there's two signatures, you will recall, on each of those cards. And what they both told you was that the second signature on the account opening form is a certification that the Social Security number provided is correct. That's actual knowledge because anyone filling out that form, including the defendant when he filled out those forms, is being told that the Social Security number must be a real number, not just some made-up nine digit number."
Aceituno did not object to any of these remarks.
The defense's closing included the following statements:
- 7 - 1. "But I do need to talk to you about something that may happen in the deliberation room just based on human experience and ask you to resist that. You know, in 2004 there was an earthquake that caused a tsunami. Just in Indonesia 170,000 people were killed. I actually remember that day looking on my computer at this news of this terrible event. A couple of hours later I was going on with my life. You know, you get absorbed in your own concerns."
2. "Almost exactly 400 years ago Sir Walter Raleigh was accused of treason and ultimately executed in London. The evidence against him was that there was a Baron Cobham who was interrogated outside the presence of Sir Walter Raleigh, and he claimed, or he was made to, it's not clear, write out that he and Raleigh had agreed to treason. To kill King James I, basically. At Raleigh's trial he said bring my accuser face-to-face. He was denied that right, and he was put to death. But after that case 400 years ago there was a widespread belief in England that that is the wrong way to try people. That if you are accused of a crime, you should meet your accuser face-to-face."
The prosecution, in response to defense counsel's
several references to events distant in time and place from the
case, stated: "[y]ou heard a closing that spent a lot of time
talking about a lot of things that did not happen in this courtroom
and that are not evidence in front of you. That is to confuse and
distract you." Aceituno objected, and the court overruled the
objection. The prosecution continued: "[t]he defendant was given
the fair trial required under the Constitution. The government
has met the burden required under the Constitution to prove his
guilt beyond a reasonable doubt. Not confusion about tsunamis and
Sir Walter Raleigh."
- 8 - II. Analysis
We review sufficiency challenges de novo, construing the
evidence in the light most favorable to the verdict. United States
v. Morel, 885 F.3d 17, 22 (1st Cir. 2018).
The aggravated identity theft statute, 18 U.S.C.
§ 1028A, applies when one "knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of
another person" in relation to certain enumerated offenses
including conspiracy to commit bank fraud. See 18 U.S.C.
§§ 1028A(a)(1), 1028A(c)(5). The Supreme Court has held that the
offense requires a showing that the defendant knew that the "means
of identification" used belonged to "another person."
Flores-Figueroa v. United States, 556 U.S. 646, 647 (2009) (quoting
18 U.S.C. § 1028A(a)(1)). The prosecution bears the burden of
showing that the defendant "knowingly" committed these acts. See
United States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012) (citing
Flores-Figueroa, 556 U.S. at 657).
Viewed in "the aggregate," United States v. Olbres, 61
F.3d 967, 974 (1st Cir. 1995), we hold that sufficient evidence
supports the jury's finding beyond a reasonable doubt that Aceituno
"knowingly transfer[red], possesse[d], or use[d], without lawful
authority, a means of identification of another person" in relation
to certain enumerated offenses that include conspiracy to commit
- 9 - bank fraud. See 18 U.S.C. § 1028A(a)(1). We start with the
evidence of his opening of the Eastern Bank accounts, having been
informed that the identification information he provided would be
scrutinized. "The fact that [the defendant] knew that the
[identity information] might be subjected to
scrutiny . . . supports the inference that he knew that the
[information] belonged to a real person." United States v. Soto,
720 F.3d 51, 55 (1st Cir. 2013); see also Valerio, 676 F.3d at
244-45 (holding that "[a] 'willingness to subject [a] social
security card repeatedly to government scrutiny' is evidence that
allows a reasonable jury to find that a defendant knew that a
stolen identity belonged to a real person" (second alteration in
original) (quoting United States v. Holmes, 595 F.3d 1255, 1258
(11th Cir. 2010))).
The evidence, including the signature cards that
Aceituno signed and the testimony about Eastern Bank's practice of
notifying customers that it checks identification information,
supports the jury's conclusion. Aceituno argues that no such
inference is warranted because he did not subject the means of
identification of a particular real individual to scrutiny more
than once. Aceituno is incorrect. Aceituno subjected means of
identification obtained through the conspiracy to scrutiny at
least five separate times. See Morel, 885 F.3d at 23 ("This court
has previously found sufficient evidence of a defendant's
- 10 - knowledge that an identity was real where the defendant repeatedly
subjected that identity to scrutiny. Although [the defendant]
only cashed a single refund check made out to JRM, the evidence
showed that the scheme in which [the defendant] participated
involved hundreds of fraudulent tax refund transactions."
(citation omitted)). We need not decide whether the use of means
of identification of five individuals is sufficient because there
was much more evidence from which the jury could draw inferences.
Aceituno's use of multiple means of
identification -- names, dates of birth, and social security
numbers -- also supports the jury's conclusion. See Valerio, 676
F.3d at 244 (defendant used both birth certificate and credit
reports).2 Aceituno also used means of identification of at least
five people in opening accounts and mailboxes.3 Moreover, Aceituno
observed Ihejiere successfully create a mailbox with personal
identifying information about another real person, and Ihejiere
understood (and a jury could infer he passed that understanding to
Aceituno) that the scheme's "modus operandi was to involve people
[known] to be real." Soto, 720 F.3d at 56. To be clear, we do
2 The government also argues that indeed Aceituno's very success in opening accounts showed that he knew that the scheme used means of identification from real people. 3 The government did not charge Aceituno with aggravated identity theft for his opening of the two David Johnson accounts and the Jonathan Smith mailbox, but those actions remain relevant and material evidence.
- 11 - not hold that all of this evidence was necessary to sustain a
conviction.
Aceituno primarily argues that the evidence is
insufficient because there is no direct evidence that he knew that
these means of identification were of real people. This argument
does not suffice: we have held that "knowledge [that the 'means of
identification' belonged to 'another person'] may be proven by
circumstantial evidence alone; indeed, it frequently cannot be
proven in any other way." See Valerio, 676 F.3d at 244 (quoting
United States v. Agosto-Vega, 617 F.3d 541, 549 (1st Cir. 2010)).
He also argues that the evidence is insufficient because he was
not the one who generated the means of identification; instead, he
received the materials from someone else. That does not mean that
he lacked the requisite knowledge. See, e.g., Morel, 885 F.3d at
20, 21-23 (holding that sufficient evidence existed to affirm
conviction for aggravated identity theft where defendant did not
personally generate the means of identification).
Aceituno's remaining arguments, that the fact that he
"did not use the same identity more than once further weakens any
inference of knowledge that the identities used were of real
persons," and there was "[no] evidence that Aceituno made any
statement demonstrating his knowledge of the authenticity of the
identities," likewise fail. We have held that such evidence can
support a conviction for aggravated identity theft, not that such
- 12 - evidence is necessary to convict. See Valerio, 676 F.3d at 244;
see also United States v. Núñez-Polanco, 428 F. App'x 13, 15 (1st
Cir. 2011).
Aceituno also incorrectly argues that his position is
supported by United States v. Godin, 534 F.3d 51, 54 (1st Cir.
2008). There, the only evidence introduced by the prosecution was
that the defendant had opened bank accounts using seven different
social security numbers that she had fabricated "by altering the
fourth and fifth digits of her own social security number." Id.
Godin held that "[t]he only inference a rational jury could make
from this evidence is that [the defendant] randomly selected the
two fabricated numbers." Id. at 62. Here, the evidence as
described above is much more compelling, and there is no evidence
that Aceituno randomly generated (much less from his own personal
data) any of the means of identification he used.
B. Closing Arguments
Aceituno further argues that, even if the evidence was
sufficient to sustain his convictions, certain of the government's
statements at summation constitute prosecutorial misconduct and
entitle him to a new trial. Because Aceituno did not object at
trial, we review these challenges for plain error. See United
States v. Canty, 37 F.4th 775, 790 (1st Cir. 2022). We ask whether
"(1) . . . an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
- 13 - but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id.
We start and end with the first prong. The statements
were not improper. The prosecution's statements that Eastern Bank
warned Aceituno about ChexSystems, were not, as Aceituno argues,
"unsupported by any evidence." Id. at 789 (quoting United States
v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007)). Rather, the
statements were fair inferences from the evidence that Eastern
Bank had a practice of notifying customers about ChexSystems
verbally and through placards. See United States v. Vanvliet, 542
F.3d 259, 271 (1st Cir. 2008) ("The prosecutor is entitled to
considerable latitude in summation to argue the evidence and any
reasonable inferences that can be drawn from that evidence."
(quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir.
1991))). In the first and fourth challenged statements, the
government identified Childs's testimony about the bank's
practices as the relevant evidence. In the remaining two
challenged statements, the context made it clear that the
prosecution was arguing an inference based on Childs's testimony
rather than representing that other direct evidence existed. See
United States v. Carpenter, 736 F.3d 619, 627 (1st Cir. 2013)
("While the government did not say explicitly that it was asking
the jury to draw an inference from the documents and facts, that
was the structure of the argument as a whole.").
- 14 - We review the propriety of the government's rebuttal
statements, to which Aceituno did object, de novo. See United
States v. Ayala-García, 574 F.3d 5, 16 (1st Cir. 2009). Contrary
to Aceituno's arguments, the prosecution did not mount any
"unsubstantiated, personal attack on defense counsel." The
government was responding to defense counsel's reference to a 2004
tsunami in Indonesia and the trial of Sir Walter Raleigh 400 years
ago in England, each of which were far afield from the facts in
this case. The prosecution's rebuttal was meant to redirect the
jury's attention to the facts of this case. See United States v.
Barragan, 871 F.3d 689, 703 (9th Cir. 2017) ("Criticism of defense
theories and tactics is a proper subject of closing argument."
(quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th
Cir. 1997))); see also United States v. González-Pérez, 778 F.3d
3, 20 (1st Cir. 2015) ("The prosecutor's further suggestions that
defense counsel was trying to confuse the jury . . . while perhaps
impolitic, did not render the trial unfair."); United States v.
Wilkerson, 411 F.3d 1, 9 (1st Cir. 2005) ("[Defendant's] claim
that the prosecutor demeaned the defense by calling one of the
defense theories a 'red herring' is meritless."); United States v.
Bennett, 75 F.3d 40, 46-47 (1st Cir. 1996) (holding that
prosecutor's remarks that defense argument was a "diversion" that
- 15 - did not "pass the laugh test" did not "cross[] the line").4 It
was fair commentary that the defense's statements were meant "to
confuse and distract [the jury]."
We affirm.
4 Aceituno argues that United States v. Manning, 23 F.3d 570 (1st Cir. 1994) supports his position, but Manning involved "pervasive" "prosecutorial overrreaching" not at issue here. Id. at 575. The Manning prosecution's closing included improper witness-vouching, implications that the prosecution had inculpatory information that was not in evidence, and far more denigrating statements than those made in this case: there, the prosecution represented to the jury that the "role" of defense counsel was "to cloud the issues or make smoke screens," and "liken[ed] them to Shakespeare's players, full of sound and fury signifying nothing." Id. at 572-73, 573 n.1.
- 16 -