United States v. Teona N. Rodgers

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 7, 2018
• Docket: 17-13641
• Status: Unpublished

Opinion

Case: 17-13641 Date Filed: 05/07/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13641 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cr-00001-RH-CAS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TEONA N. RODGERS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(May 7, 2018)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-13641 Date Filed: 05/07/2018 Page: 2 of 8

Teona Rodgers appeals following her convictions for receiving stolen

government property from the Internal Revenue Service (“IRS”) pursuant to 18

U.S.C. §641; and access device fraud pursuant to 18 US.C. §1029(a)(3); and

aggravated identity theft pursuant to 18 U.S.C. §1028A(a)(1). On appeal, Rodgers

argues, first, that a defendant cannot be prosecuted under both 18 U.S.C. §1029

and 18 U.S.C. §1028A. Second, she argues, for the first time on appeal, that it was

plain error to convict her for receiving stolen funds from the IRS because of a lack

of evidence showing she knowingly received stolen government property from a

third-party, and that this was an essential element of the offense.

I.

We review de novo, as a question of law, the interpretation of a criminal

statute. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). The first

rule in statutory construction is to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute. United

States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). If so, there is no need for

further inquiry. Id. We look to the entire statutory context rather than look at one

word or term in isolation. Id. We will interpret a statute in a manner consistent

with the plain language of the statute, unless doing so would lead to an absurd

result. Id.

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Under 18 U.S.C. §1029(a)(3) it is unlawful to “knowingly and with intent to

defraud possess[] fifteen or more devices which are counterfeit or unauthorized

access devices.” A “counterfeit access device” is any access device that is

“counterfeit, fictitious, altered, or forged,” while an “unauthorized access device”

includes those access devices that were “lost, stolen, expired, revoked, canceled, or

obtained with the intent to defraud.” 18 U.S.C. §1029(e). An “access device” is

defined as:

any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any 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).

The aggravated identity theft statute, §1028A, provides that “[w]hoever,

during and in relation to any felony violation enumerated in subsection (c),

knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person shall, in addition to the punishment provided for

such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C.

§1028A(a)(1). “Means of identification” is defined as:

any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any— 3 Case: 17-13641 Date Filed: 05/07/2018 Page: 4 of 8

(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

(C) unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined in section 1029(e));

Id.§ 1028(d)(7). Subsection (c), incorporated as an element in §1028A(a)(1),

includes “any provision contained in this chapter (relating to fraud and false

statements), other than this section or section 1028(a)(7).” Id. §1028A(c)(4).

Sections 1028A and 1029(a)(3) are both contained in Title 18, Chapter 47 of the

United States Code. See id. §§1028A, 1029. The government must prove that

defendant knew the means of identification belonged to another person. Flores-

Figueroa v. United States, 556 U.S. 646, 658 (2009).

In United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009), we held that a

defendant could be convicted and prosecuted for both §1028A(a)(1) and

§1029(a)(2) despite double jeopardy concerns. Bonilla, 579 F.3d at 1241, 1244.

We noted that the legislature specifically authorized cumulative punishment for

both §1029(a)(2) and § 1028A(a)(1). Id. at 1244; see H.R. REP. NO. 108-528, at 10

(2004). Section 1029(a)(2) is one predicate offense underlying a conviction for 4 Case: 17-13641 Date Filed: 05/07/2018 Page: 5 of 8

§1028A(a)(1), which in turn serves as a two-year penalty enhancement to

§1029(a)(2). Bonilla, 579 F.3d at 1244.

We conclude that the plain language of the statute is clear: aggravated

identity theft can co-exist with a prosecution for access device fraud. While

Bonilla involved a conviction under §1029(a)(2), and not the §1029(a)(3) provision

at issue here, our reasoning there applies here. Similarly, Congress plainly

incorporated the term “access device” from § 1029(e) into §1028’s definition of

“means of identification.” 18 U.S.C. §1028(d)(7)(D). Accordingly, we conclude

that the district court did not err by denying Rodgers’ motion to dismiss the

aggravated identity theft charge.

II.

When a defendant challenges the sufficiency of the government’s evidence

for the first time on appeal, we review the sufficiency of the evidence for a

manifest miscarriage of justice. United States v. Tagg, 572 F.3d 1320, 1323 (11th

Cir. 2009). To reverse a conviction under that standard, we must find that the

evidence on a key element of the offense is so tenuous that a conviction would be

shocking. Id.

The elements for a conversion or receipt prosecution under section 641’s

second paragraph are that: (1) that the money or property belonged to the

government; (2) that the defendant fraudulently appropriated the money or

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property to his own use or the use of others; (3) and that the defendant did so

knowingly and willfully with the intent either temporarily or permanently to

deprive the owner of the use of the money or property. United States v. McRee, 7

F.3d 976, 980 (11th Cir. 1993).

Section 641 contains two disjunctive paragraphs. The first paragraph

captures the stealing of government property, and the second, its receipt. Section

641 begins:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted

18 U.S.C. §641. A defendant can only be convicted under one of the paragraphs,

and cannot be convicted for both stealing and receiving the same stolen

government property. United States v. Minchew, 417 F.2d 218, 219 (5th Cir.

1969).

Where evidence is sufficient to support an indictment of both stealing and

receiving the proceeds, the jury must be instructed that while it can return a verdict

on either count, it cannot convict under both. Milanovich v. United States, 35 U.S.

551, 554–55 (1961). Proof offered at trial is not the relevant inquiry—the evidence 6 Case: 17-13641 Date Filed: 05/07/2018 Page: 7 of 8

presented may be interchangeable between the first two paragraphs of §641—and a

conviction is valid as long as the jury only finds guilt as to either stealing or

possession of the stolen goods. See United States v. Richardson, 694 F.2d 251,

254 (11th Cir. 1982) (applying Milanovich and United States v. Gaddis, 424 U.S.

544 (1976), to a conviction under stolen goods from interstate commerce statute,

18 U.S.C. §659, which also has provisions for both robbery and possessing stolen

funds); Minchew, 417 F.2d at 219–20.

In Minchew, we held that evidence establishing the defendant’s burglary

could be used to establish guilt under the second paragraph of §641 for receiving

that stolen government property, where the defendant was not charged with

stealing government property directly under the first paragraph of §641. Minchew,

417 F.2d at 219–20. In Richardson, the defendant was charged and convicted of

possession of stolen money, but argued that the government introduced evidence at

trial that he stole property too, and we upheld the conviction because the jury only

returned the verdict as to possession and not both stealing and possession.

Richardson, 694 F.2d at 253–54.

We conclude that there is no manifest miscarriage of justice arising from

Rodgers’ conviction for receiving stolen government property. Rodgers was

indicted only for receiving stolen government property, not stealing, and the jury

was instructed solely on the second paragraph of §641 and then only found

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Rodgers guilty for knowingly receiving stolen government property. This satisfies

the requirement of Milanovich and its progeny that the court must instruct the jury

that they may only convict a defendant under one of § 641’s paragraphs.

Milanovich, 365 U.S. at 554–55.

The evidence presented at trial, taken in the light most favorable to the

government, was sufficient for a reasonable jury to conclude that Rodgers knew

that she received stolen government money. Receiving government property does

not require Rodgers to have received it from a third-party. See McRee, 7 F.3d at

980. In any event, as Rodgers admits in her brief before us, the evidence was

sufficient to find that she stole government property under the first paragraph, and

therefore, notwithstanding the above, no miscarriage of justice will result from

affirming the jury’s verdict. Accordingly, we do not find that the evidence was

insufficient regarding her conviction under §641.

AFFIRMED.