United States v. Roger Joseph , 304 F. App'x 792 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12275 ELEVENTH CIRCUIT
DECEMBER 19, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-20020-CR-WMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER JOSEPH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 19, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Roger Joseph appeals his convictions for: (1) transferring and possessing a
means of identification of another person, i.e., aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) (Counts 5-7); and (2) possessing with the
intent to use and transfer five or more false documents, in violation of 18 U.S.C.
§ 1028(a)(3) (Count 12).
On appeal, Joseph argues that the district court erred in instructing the jury in
a supplemental instruction that it only had to find that the documents, rather than
Joseph’s actions, affected interstate commerce with respect to Count 12. He asserts
that the error was prejudicial and resulted in a higher sentence than he should have
received. Joseph asserts that his counsel did not invite error, and thereby waive his
right to assert that the supplemental instruction was erroneous, because he did not
intentionally relinquish a known right as required by United States v. Olano, 507
U.S. 725, 732, 113 S.Ct. 1770, 1777 (1993). Instead, when Joseph’s counsel agreed
to the supplemental instruction, he, along with the district court and the
government, was operating under a misapprehension of the law and therefore did
not abandon a “known” right. Therefore, Joseph maintains that his challenge to the
supplemental instruction should be viewed as forfeited and subject to plain error
review, rather than waived. He notes that our cases, such as United States v.
Silvestri, 409 F.3d 1311, 1357 (11th Cir. 2005), which provided that a defense
counsel’s acceptance of a proposed jury instruction precludes review, do
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not mention Olano or indicate that they were utilizing Olano’s requirement that
counsel must intentionally relinquish a known right. Finally, Joseph asserts that the
district court’s supplemental instruction was plainly erroneous.
Invited error precludes review of the error on appeal. Silvestri, 409 F.3d at
1337. When a party, rather than just remaining silent and not objecting, responds to
the Court’s proposed instruction with the words, “the instruction is acceptable to
us,” this constitutes invited error. United States v. Fulford, 267 F.3d 1241, 1246-47
(11th Cir. 2001) (refusing to consider defendant’s challenge to a supplemental jury
instruction given in response to a jury question). In Olano, the Supreme Court
stated that waiver involves “the intentional relinquishment or abandonment of a
known right.” Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (quotation omitted).
We decline to address Joseph’s argument that we should disregard our prior
precedent because even under plain error review, Joseph’s argument fails. Under
18 U.S.C. § 1028(a)(1) and (c)(3)(A), it is a crime to unlawfully produce an
identification document when the production “is in or affects interstate or foreign
commerce.” To satisfy the interstate commerce requirement, however, the
government need only show a minimal nexus. United States v. Klopf, 423 F.3d
1228, 1239 (11th Cir. 2005). The government may prove the requisite minimal
nexus by showing either that the defendant's actions actually affected interstate
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commerce, see 18 U.S.C. § 1028(c)(3)(A), or by showing that the defendant “had
the intent to accomplish acts, which, if successful, would have affected interstate or
foreign commerce.” Klopf, 423 F.3d at 1239. Here, the Government put on a
witness who testified that Joseph created the documents at the witness’s behest, and
that testimony refuted Joseph’s claim that he did not know where the blank
documents found in his shop came from and that he was not involved with them.
That testimony further showed that Joseph had the intent necessary to produce
Social Security cards, Bahamian work authorization documents, and Florida
identification cards that would necessarily be used in interstate and foreign
commerce. Furthermore, if there was error in the instruction, it did not prejudice
the defendant because the evidence clearly refuted his defense of lack of
knowledge.
II.
Joseph next argues that the government should have been required to prove
that he knew that the means of identification at issue in Counts 5-7 belonged to
actual people. He acknowledges that our precedent in United States v. Hurtado, 508
F.3d 603, 609-10 (11th Cir. 2007), cert. denied, 128 S.Ct. 2903 (2008), forecloses
this argument, but he is attempting to preserve the issue for appeal.
We review questions of statutory interpretation de novo. United States v.
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Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). Under 18 U.S.C. § 1028A(a)(1),
an individual who, “during and in relation to any felony violation enumerated in
[§ 1028A(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.” In
Hurtado, we held that the government did not have to establish that the defendant
knew that the means of identification that he possessed and used belonged to an
actual person. Hurtado, 508 F.3d at 610.
Because Joseph did not raise this issue in the district court, it is reviewed for
plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005)
(stating that an argument is reviewed for plain error when the defendant did not
object below). Consequently, Joseph must prove that “(1) there is an error; (2) that
is plain or obvious; (3) affecting [his] substantial rights in that it was prejudicial and
not harmless; and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (quotations and citations omitted).
As binding precedent forecloses Joseph’s argument on this issue, we affirm.
AFFIRMED. 1
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Joseph’s request for oral argument is denied.
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