United States v. Vielka Mercedes Gomez-Castro

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 13, 2010
• Docket: 09-12557
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 13, 2010 No. 09-12557 JOHN LEY ________________________ CLERK

D. C. Docket No. 08-21122-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VIELKA MERCEDES GOMEZ-CASTRO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(May 13, 2010)

Before PRYOR and FAY, Circuit Judges, and QUIST,* District Judge.

* Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation. PRYOR, Circuit Judge:

The question presented by this appeal is whether the government, in its

prosecution of an offender for aggravated identity theft, 18 U.S.C. § 1028A(a)(1),

can rely on circumstantial evidence about the offender’s misuse of the victim’s

identity to satisfy its burden of proving that the offender knew the identity

belonged to a real person. Vielka Mercedes Gomez-Castro appeals her conviction

of aggravated identity theft for knowingly possessing and using the means of

identity of another when she attempted to enter the United States on a passport that

bore the identity of another person. Id. During the pendency of this appeal, the

Supreme Court decided Flores-Figueroa v. United States, 556 U.S. ___, 129 S. Ct.

1886 (2009), which held that section 1028A requires the government to prove

beyond a reasonable doubt that the accused knew the means of identity at issue

belonged to a real person. Gomez-Castro argues that the government failed to

prove at her bench trial that she knew she had used the identity of a real person.

Because circumstantial evidence supports the finding of the district court that

Gomez-Castro knew the means of identity belonged to a real person, we affirm her

conviction.

I. BACKGROUND

Gomez-Castro, a citizen of the Dominican Republic, arrived at Miami

2 International Airport on November 11, 2008, and presented to a customs and

border protection officer a United States passport that bore her photograph, but

someone else’s name. Upon further investigation, a customs and border protection

officer determined that Gomez-Castro had falsely identified herself to gain entry

into the United States and took her into custody.

In December 2008, a federal grand jury returned a three-count indictment

against Gomez-Castro that alleged she illegally reentered the United States after

having previously been deported, 8 U.S.C. § 1326(a); falsely and willfully

represented herself to be a citizen of the United States when she attempted to gain

entry into the United States, 18 U.S.C. § 911; and knowingly possessed and used a

means of identity of another when she presented a passport to an officer of the

United States to gain entry into the United States, id. § 1028A(a)(1). On February

2, 2009, Gomez-Castro pleaded guilty to reentering the country illegally and

falsely and willfully representing herself to be a citizen. Later that month, the

district court held a bench trial on the charge of aggravated identity theft.

At trial, the government proved by stipulation that Gomez-Castro is a citizen

of the Dominican Republic. Gomez-Castro was forcibly removed from the United

States and returned to the Dominican Republic on April 10, 2001. On or about

November 11, 2008, Gomez-Castro arrived at Miami International Airport from

3 the Dominican Republic. Gomez-Castro had not obtained permission to reenter the

United States. At passport control, Gomez-Castro falsely presented herself as a

citizen of the United States with a passport that bore the name of Rosa Maria

Rivera Collazo, but contained Gomez-Castro’s photograph. Customs and border

protection officers escorted Gomez-Castro to baggage claim where they inspected

her bags and found a birth certificate issued by Puerto Rico, a social security card,

a New York driver’s license, a New York benefits card, two credit cards, and a

bank card all issued in the name of Collazo. Officers also found a passport issued

by the Dominican Republic, which revealed Gomez-Castro’s true identity.

The parties stipulated that the Puerto Rico Demographic Registry had

confirmed the authenticity of the Puerto Rican birth certificate issued to Collazo

and that Collazo was a real person. The parties stipulated that Gomez-Castro’s real

name was Vielka Mercedes Gomez-Castro. The parties stipulated that Gomez-

Castro had purchased the birth certificate and social security card for $2,500, and

with those documents was able to obtain credit cards, a driver’s license, insurance

cards, and a United States passport in the name of Collazo.

After the government read the stipulated facts into the record and the district

court admitted the accompanying exhibits, Gomez-Castro moved for a judgment of

acquittal on the ground that “under the aggravated identity theft statute, the

4 government must prove that Gomez-Castro knew that [Collazo] was a real person,”

and the government failed to meet this burden. The district court denied the

motion because it was bound by our decision in United States v. Hurtado, 508 F.3d

603 (11th Cir. 2007), which held that section 1028A did not require the

government to prove the accused knew that the means of identity belonged to a real

person. The district court found, in the alternative, that “there is certainly enough

evidence in the record for the Court to infer that the defendant knew that Rosa

Maria Rivera Collazo was a real person.” The district court explained that, because

Gomez-Castro had paid $2,500 for the birth certificate and social security card and

repeatedly had used those forms of identification to obtain credit cards, a driver’s

license, insurance cards, and a United States passport, the government had proved,

beyond a reasonable doubt, that Gomez-Castro knew Collazo was a real person.

The district court convicted Gomez-Castro of aggravated identity theft. The

district court then sentenced Gomez-Castro to 34 months of imprisonment, with

concurrent terms of 10 months for the two counts to which she pleaded guilty, and

a consecutive term of 24 months for aggravated identity theft. The district court

also ordered Gomez-Castro to serve one year of supervised release.

II. STANDARD OF REVIEW

Gomez-Castro’s conviction must be upheld if “any rational trier of fact

5 could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir. 2007). We view “the

evidence “in the light most favorable to the government, with all reasonable

inferences and credibility choices made in the government’s favor.” United States

v. Harris, 20 F.3d 445, 452 (11th Cir. 1994).

III. DISCUSSION

Gomez-Castro contends that the government failed to prove beyond a

reasonable doubt that she knew Collazo was a real person. She argues that her

previous deportation and the sum she paid for Collazo’s identifications tend to

prove only that she hoped the identifications were real, but not that she knew they

belonged to a real person. Gomez-Castro concedes that the government can rely

on circumstantial evidence to prove that she knew the means of identity belonged

to a real person, but insists that the only relevant evidence concerns the

circumstances in which she obtained the birth certificate and the social security

card, not the circumstances in which she later used the documents.

Gomez-Castro’s argument fails. Gomez-Castro’s entire course of conduct

before she used Collazo’s identity to gain entry into the United States is relevant to

prove that Gomez-Castro knew Collazo was a real person. Both the circumstances

in which an offender obtained a victim’s identity and the offender’s later misuse of

6 that identity can shed light on the offender’s knowledge about that identity.

Gomez-Castro argues and we agree that the government must prove more

than that the defendant used a false identity. Section 1028A required the

government to prove that Gomez-Castro knew that the identity listed on the

passport she presented to an officer at the border belonged to a real person. Flores-

Figueroa, 129 S. Ct. at 1894; see also 18 U.S.C. § 1028A(a)(1). The Supreme

Court explained in Flores-Figueroa that it may be more difficult for the

government to prove knowledge without evidence that the accused acquired the

means of identity in circumstances that, standing alone, suggest the accused knew

the means of identity belonged to a real person. 129 S. Ct. at 1893. The Supreme

Court also gave a few examples of circumstances where “intent is generally not

difficult to prove”: the accused acquired the means of identity from a trash bin, by

accessing information that had been collected for a permitted purpose, or by

hacking into a computer. Id. But this list of examples does not foreclose the

possibility of proving knowledge in a more difficult case.

Our decision in United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010),

establishes that the government can rely on circumstantial evidence about an

offender’s misuse of a victim’s identity to prove the offender knew the identity

belonged to a real person. We held that a reasonable jury could have found that the

7 government had proved that Holmes knew that a social security card and birth

certificate belonged to a real person when she used them to apply for a driver’s

license. Id. at 1258. We reasoned that, because Holmes had obtained a line of

credit and had successfully used the social security card and birth certificate to

obtain a passport and two driver’s licenses or identification cards before she used

the victim’s identity in the charged offense, a reasonable trier of fact could have

found Holmes knew the identity belonged to a real person. Id.

A rational trier of fact could have found beyond a reasonable doubt that

Gomez-Castro knew Collazo was a real person when Gomez-Castro presented the

passport with Collazo’s identity to the customs and border protection officials.

After being forcibly removed from the United States on April 10, 2001, Gomez-

Castro attempted to reenter the United States in 2008 with a passport that bore the

name Collazo. Gomez-Castro obtained the passport with the use of a birth

certificate and social security card that also bore the name Collazo. Gomez-Castro

paid the large sum of $2,500 for the birth certificate and social security card.

Before she presented the passport for entry in 2008, Gomez-Castro had repeatedly

and successfully tested the authenticity of the birth certificate and social security

card: she used them to obtain a New York driver’s license and benefits card, two

credit cards, a bank card, and the United States passport used in this crime. This

8 circumstantial evidence supports a finding that Gomez-Castro knew the Collazo

identity belonged to a real person when she later presented the passport bearing

that identity to the border officer. See id.

Gomez-Castro argues that our decision in Holmes is distinguishable because

the government, in that case, presented evidence of the rigorous verification

processes used by the government for the issuance of licenses to drive and

passports. We disagree. In Holmes, we rejected the argument that the government

had to prove that Holmes was aware of the rigorous verification processes used by

the federal and state governments. Id. We explained that a reasonable jury could

have found that Holmes knew at least that the federal and state governments

routinely obtain an applicant’s identity to verify the authenticity of that identity.

Id. That knowledge can be inferred reasonably based on ordinary human

experience for which no special proof is required; a trier of fact can rely on

common sense. See United States v. Cruz-Valdez, 773 F.2d 1541, 1546–47 (11th

Cir. 1985) (en banc); see also Head v. Hargrave, 105 U.S. 45, 51 (1882) (“[T]he

jury [can] very properly exercise their own judgment and apply their own

knowledge and experience in regard to the general subject of inquiry.” (internal

quotation marks omitted)); United States v. Marino, 562 F.2d 941, 944 (5th Cir.

1977) (“[J]urors are not to be presumed ignorant of what everybody else knows.

9 And they are allowed to act upon matters within their general knowledge, without

any testimony on those matters.” (internal quotation marks omitted)). Even if the

government did not present evidence about the verification processes used by the

state and federal governments, a rational trier of fact could have found that Gomez-

Castro knew at least that the New York and federal governments obtained proof of

an applicant’s identity to verify that identity. Drawing all reasonable inferences in

favor of the government, a rational trier of fact could have found beyond a

reasonable doubt that Gomez-Castro knew the identity belonged to a real person

when she presented the passport to gain entry into the United States.

IV. CONCLUSION

Gomez-Castro’s conviction is AFFIRMED.