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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13641
Non-Argument Calendar
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D.C. Docket No. 4:17-cr-00001-RH-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEONA N. RODGERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 7, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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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—
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(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
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§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,
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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
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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.
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