United States v. Bechir Delva , 922 F.3d 1228 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12947
________________________
D.C. Docket No. 0:15-cr-60209-WPD-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BECHIR DELVA,
DAN KENNY DELVA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 29, 2019)
Before MARCUS, GRANT and HULL, Circuit Judges.
HULL, Circuit Judge:
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Defendants Bechir Delva and Dan “Kenny” Delva are brothers who were
convicted of seven crimes arising out of their identity theft and tax fraud
operations. After a joint jury trial, the Delvas appeal their convictions and
sentences for conspiracy to possess 15 or more unauthorized access devices, in
violation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1).
On appeal, Bechir and Kenny raise separate and joint challenges to their
convictions and sentences. First, Bechir attacks his convictions on the ground that
the district court erred in denying his motion to suppress the evidence found during
a warrantless search of his vehicle. Second, Kenny challenges the sufficiency of
the evidence supporting each of his convictions. Together, Bechir and Kenny
argue that: (1) the district court erred by admitting at trial the government’s expert
testimony as to the terminology and jargon used in identity theft and tax fraud
crimes; and (2) the district court’s errors singularly and cumulatively violated their
constitutional rights to a fair trial and due process of law.
As to their sentences, Bechir and Kenny argue that the district court erred in
applying an enhancement for possession of a firearm in connection with their
offenses. Lastly, Kenny contends that his total 84-month sentence is substantively
unreasonable.
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After careful review of the record and the parties’ briefs, and with the
benefit of oral argument, we affirm both Delvas’ convictions and sentences.
I. FACTUAL BACKGROUND
We describe the government’s June 9, 2014, undercover investigation into
the Delvas’ fraud operations, including the federal agents’ search of Bechir’s
vehicle and the townhouse where the fraud was conducted. This investigation and
the evidence seized from the car and townhouse formed the basis of the federal
prosecution of this case. Our description is based on the evidence presented at
trial, as well as testimony during a pre-trial suppression hearing.
A. Undercover Operation
A cooperating source, McKenzie Francois, told federal agents that Bechir
and Kenny Delva were conducting identity theft and tax fraud operations out of a
townhouse located within a gated community complex in Miramar, Florida.
Acting on this information, the Agents set up an undercover operation with
Francois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin
Deslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security
Investigations and Special Agent Brad Cohen from the Internal Revenue Service
(“IRS”) met with Francois at a staging location. The Agents equipped Francois
with a video and audio recording device in a backpack and followed him to the
townhouse in question. One Agent parked his car with a view of the townhouse’s
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front door, while other Agents parked where they could observe the building’s
rear.
At approximately 12:05 p.m., Francois entered the townhouse and stayed for
about an hour. Bechir, Kenny, and others were present in the townhouse at that
time. While inside, Francois took several pictures with his cell phone and texted
them to the Agents. The pictures showed: (1) individuals sitting on a couch using
laptops; (2) a money counter; (3) a white shoebox lid flipped upside down with
numerous debit cards and papers containing personal identifying information
inside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall.
Generally, the personal identifying information included individuals’ names, dates
of birth, and Social Security numbers, which we collectively refer to as “PII.”
Consistent with these photographs, the video recording covertly captured by
Francois depicted papers listing PII and debit cards visible on the ottoman and a
rifle leaning against a wall. Kenny and Bechir could be heard speaking on the
recording. Bechir was sitting on a couch facing the ottoman where the debit cards
and papers were located. At one point on the video, Kenny is holding papers and a
laptop power cord. The video also showed that, soon after Francois arrived, the
individuals discovered a government Agent surveilling the townhouse. This
prompted a discussion about whether the Agent could “pick up” on who was
“sending things” over the internet. They also talked about packing up, “cleaning
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up” the townhouse, and leaving to “work” at a hotel. Kenny, in particular, talked
about leaving the townhouse and going to a hotel where it would be safer to work.
Around this time, someone else accused Kenny of looking scared, and Bechir
referenced someone going to jail.
B. Agents Debrief Francois
After leaving the townhouse, Francois met with the Agents again and
confirmed that individuals in the townhouse were conducting fraud activities.
Francois also told the Agents that the individuals noticed a law enforcement officer
outside the townhouse and were worried that they were being surveilled. As such,
they talked about “cleaning” the townhouse and getting rid of any illicit materials
as soon as possible. The Agents then did the following: Agent Eustice returned to
the gated community to watch the townhouse; Agent Deslauriers took the video
equipment back to his office for review; and Agent Goodwin went to secure a
federal search warrant.
C. Agents Initially Search the Mercedes
At about 2:00 p.m., Agent Eustice returned to the townhouse and saw
several vehicles lined up in front of the residence. Agent Eustice first saw an
unidentified male put a bag into the back of a white Camry and drive away from
the townhouse. Agent Eustice tried to follow the car, but lost it at the front gate.
Agent Eustice then saw another male, later identified as Bechir, walk down a
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hallway to the townhouse door. Bechir left the townhouse carrying three white
shoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle.
Bechir then departed the townhouse (Unit 105, Building 2492) and drove along the
main Centergate Drive. After driving around a curve in the road, Bechir got off
that main drag and turned into one of the other apartment communities within the
complex. Bechir parked and began walking away from the car.
By this time, two other Agents had joined Agent Eustice at the scene, and
they approached Bechir together. When asked, Bechir denied owning the
Mercedes and refused to provide the officers with any identification. The Agents
then handcuffed Bechir and eventually placed him in the back of a police car.
Looking in the windows of the parked Mercedes, Agent Eustice saw the three
shoeboxes that Bechir had loaded into the car. He noticed that one box was ajar
and appeared to have credit cards inside.
At approximately 4:15 p.m., Agent Deslauriers returned to the scene after
watching the undercover video. Although part of the recorded conversation was in
Haitian Creole, which Agent Deslauriers did not understand, he noticed a
“heightened sense of urgency at the end” of the video, which corroborated what
Francois had told them.
When Agent Deslauriers arrived, Agent Eustice fully briefed him on what
had transpired with Bechir. Agent Deslauriers recognized Bechir from the
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undercover video. When he looked in the back of the Mercedes, he also saw the
boxes. The boxes looked similar to the box lid Agent Deslauriers saw in
Francois’s pictures and on the undercover video. Additionally, one of the boxes
was slightly ajar, and Agent Deslauriers could see what looked like credit cards
inside.
Based on the video, the pictures, and the information provided by Francois,
Agent Deslauriers believed there was PII and fraudulent credit cards in the box.
Agent Deslauriers then opened the Mercedes door, did a cursory search of the
boxes, and found stacks of credit cards and papers listing PII. He took a few
photographs and then replaced everything.
D. Agents Search the Mercedes and Townhouse
Meanwhile, Agent Goodwin secured a search warrant and returned to the
townhouse around 8:30 p.m. The Agents then conducted a thorough search of the
Mercedes and the townhouse. Within the three boxes in the Mercedes, the Agents
found (1) hundreds of prepaid debit cards, (2) Bechir’s T-Mobile bill, (3) a bill
addressed to Kenny, and (4) scores of documents containing PII, including
notebooks, handwritten lists, and Excel spreadsheets. The documents with the PII
listed the names, birthdates, and Social Security numbers of hundreds of
individuals. In the black backpack, the Agents found a laptop computer, as well as
additional papers with PII.
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In the townhouse, the Agents discovered a safe with $29,000 inside, two
money counters, and even more credit cards and more documents listing PII. The
Agents also found (1) tax guidelines from Republic Bank and Trust Company,
(2) documents listing an electronic filing identification number (“EFIN”) for
Gustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a
Playhouse Gentleman’s Club VIP card in Bechir’s name, and (5) a letter to Kenny
from the IRS. The Agents also found two rifles and a handgun, with multiple
corresponding magazines and rounds of ammunition, and receipts showing that
Kenny had purchased the firearms.
In the townhouse garage, Agents found Bechir’s Haitian passport, Kenny’s
Audi service contract, Kenny’s insurance records, documents related to Gustavo
Cruz, a record showing a parcel was shipped to the IRS, and instructions for
obtaining an EFIN.
E. Bechir’s Interview and Written Statement
After searching the townhouse, the Agents apprised Bechir of his Miranda
rights1 and interviewed him. Bechir told the Agents that all of the personal
identifying information (the PII) was his. Bechir had obtained the information (the
PII), which he called “fos” and “infos,” from an online database, using a login and
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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password. Bechir told the Agents that he used the personal identifying information
(the PII) to file fraudulent tax returns online using an EFIN that he bought on the
street for $5,000. Bechir would receive the tax refunds on debit cards, which he
used at ATMs to withdraw cash. Bechir admitted that the money the Agents found
in the townhouse was from tax fraud. He also said the Mercedes belonged to him
and Kenny had an Audi in the garage. When asked about the firearms, Bechir told
the Agents that the guns belonged to Kenny. Bechir explained that the firearms
were in the townhouse for protection.
In his signed written statement, Bechir also admitted to conducting fraud
activities and keeping firearms at the townhouse for protection from getting
robbed:
I’m Bechir Delva, [and] freely and willing admit that the money I store
in the safe and all the fraud activities here at 2492 Centergate Drive,
Miramar, Florida, Unit 105, are mine. The money in the safe is from
fraud and [I] have conducted fraud here. I had legal guns here, rifles
and handguns. I kept them here for protection from getting robbed.
The Agents did not arrest or question Kenny on June 9, 2014, as he had left the
townhouse by the time they searched it.
II. PRE-TRIAL PROCEEDINGS
A. Indictment and Not Guilty Pleas
In August 2015, a federal grand jury charged both Bechir and Kenny with:
(1) one count of conspiracy to possess 15 or more unauthorized access devices, i.e.,
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Social Security numbers and debit cards issued to other people, in violation of 18
U.S.C. § 1029(b)(2) (“Count 1”); (2) one count of possession of 15 or more
unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (“Count 2”);
and (3) five counts of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (“Counts 3-7”). The aggravated identity theft counts were tied to
specific real individuals whose PII was recovered from the spreadsheets in the
Mercedes, namely, L.C. (Count 3), J.F. (Count 4), C.L. (Count 5), D.S. (Count 6),
and G.S. (Count 7). The Delvas pleaded not guilty, and the case proceeded to a
joint trial.
B. Bechir’s Suppression Motion
Before trial, Bechir filed a motion to suppress the physical evidence seized
from his Mercedes.2 Bechir’s motion claimed that he was illegally detained on
June 9 and that the initial warrantless search of his vehicle was illegal. The district
court conducted an evidentiary hearing, during which Agents Deslauriers and
Eustice testified for the government. They described the June 9, 2014, events as
detailed above. Bechir did not testify at the hearing.
At the end of the hearing, the district court denied Bechir’s suppression
motion. In its written order, the district court first found that one of the boxes in
2
Bechir did not challenge the search of the townhouse or move to suppress the
post-Miranda statements he made to the federal agents. Kenny did not file a suppression motion
at all.
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the Mercedes was ajar, revealing credit cards inside. Next, the court determined
that the fact that the boxes and credit cards were in plain view, combined with
information Francois provided to the Agents, created sufficient probable cause to
justify searching the vehicle. Therefore, based on the automobile exception
announced in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925), the
district court determined that the Agents had authorization to search the Mercedes
and the boxes at the time when they first detained Bechir. The district court
stressed that they did not search the vehicle until after Agent Deslauriers had
watched the undercover video, which the court said clearly depicted fraud.
Alternatively, the district court concluded that the inevitable discovery doctrine
justified the search because the Agents secured a search warrant later that day.
III. THE JOINT TRIAL
In February 2016, the case proceeded to a joint trial, which lasted five days.
As Kenny challenges his convictions based on the sufficiency of the evidence, and
both Delvas argue that the introduction of certain expert testimony was improper,
we will review more of the evidence presented at trial.
A. The Government’s Evidence
During the trial, the government presented testimony from 18 witnesses,
including Agents Deslauriers, Eustice, Goodwin, and Cohen. The Agents
described the events on June 9, 2014, as we have recounted them above, including
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testifying as to Bechir’s post-Miranda interview statements and written confession.
The government also introduced the physical evidence the Agents obtained on June
9, that is, Francois’s undercover video and pictures, as well as the evidence Agents
seized from Bechir’s Mercedes and the townhouse. In particular, the government
introduced two Excel spreadsheets that were found in Bechir’s car, which listed the
names, birthdates, and Social Security numbers of the five victims specifically
named in Counts 3-7 of the indictment. Agent Deslauriers also explained
subsequent steps the Agents took to investigate the Delvas’ fraud scheme, such as
sending some of the seized evidence to a forensic lab for fingerprint analysis.
Fingerprint specialist Genius Johnson then testified that he compared
Bechir’s and Kenny’s fingerprints to those he recovered from two documents
containing PII that were seized in the case. On one document, Johnson found one
latent fingerprint left by Bechir, and on another spreadsheet, Johnson found four
latent fingerprints left by Kenny. Johnson testified that it was impossible that
someone other than Bechir and Kenny left those fingerprints on the papers.
The government also called Detective Kenneth Sealy as an expert witness in
identity theft and tax fraud and the terminology and jargon used in this type of
crime. Sealy is a Detective with the Aventura Police Department who had been
assigned to the IRS Identity Theft Task Force for four years. Detective Sealy had
received training on identity theft crimes from several different institutions,
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including from the IRS, U.S. Secret Service, Citibank, Homeland Security,
Discover Card, Broward Community College, and the Broward College Police
Academy. Detective Sealy’s training with the IRS was specifically focused on the
ways in which fraudulent tax returns are filed with stolen identities to obtain
refunds and how to investigate those types of crimes. Sealy explained that the term
“stolen identity refund fraud” referred to the use of stolen identities—individuals’
names, dates of birth, and Social Security numbers—to file fraudulent income tax
returns with the IRS to obtain a refund.
As to experience, Detective Sealy had conducted more than 75 fraud
investigations, including in 50 tax fraud cases. Detective Sealy had also listened in
on over 30 jail calls placed by defendants charged with “stolen identity refund
fraud” and debriefed over 20 such cooperating defendants. From the phone calls
and debriefs, Detective Sealy learned the methods by which “stolen identity refund
fraud” is conducted and the terminology used in that type of fraud. Detective
Sealy explained that, in the majority of the tax fraud cases he investigated, the
criminals used coded terminology. As part of his investigations, Detective Sealy
also had worked undercover to purchase, or arrange for the purchase of, PII from
individuals engaged in fraud. Sealy explained that PII usually refers to people’s
names, dates of birth, and Social Security numbers. Based on his expertise,
Detective Sealy had taught fraud classes to other police departments and colleges
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and had previously testified in a case in federal court as an expert in fraud
investigations and terminology.
Detective Sealy testified that criminals committing “stolen identity refund
fraud” obtain PII from multiple sources, including online or from people who work
at schools, banks, hospitals, or at other places where they have access to such
information. In reviewing the documents seized in this case, Detective Sealy
confirmed that they appeared to be medical billing sheets, Excel spreadsheets
listing PII, and hospital patient printouts, which were consistent with the type of
records he had found in other “stolen identity refund fraud” cases. On the Excel
spreadsheets, Detective Sealy noted that someone had handwritten checkmarks,
Xs, and debit card account numbers alongside the specific PII entries. He
explained that the handwritten notations indicated whether the participant had been
successful or not in using the listed individual’s PII in the fraud scheme.
Next, Detective Sealy generally described how “stolen identity refund fraud”
works. He explained that once the fraudsters obtain the PII, they input that
information into an online tax preparation website and then report fictitious
earnings, as if they were preparing real tax returns. When filing the fraudulent tax
returns, the criminals elect to have the tax refund deposited onto prepaid debit
cards, which are linked to online checking accounts. These fraudulent tax returns
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are typically filed in volume to increase the likelihood of successfully obtaining
refunds.
As to terminology, Detective Sealy testified that “fos” is a common slang
term that identity fraudsters use in South Florida, and it means “info” or
“information,” like an individual’s name, date of birth, and Social Security
number. The government then played portions of the undercover video and asked
Detective Sealy follow-up questions. For instance, after reviewing when an
individual in the townhouse said, “[w]hen you work over and over, and you send
everything at once, and you’re done, that’s better,” Detective Sealy testified that
“work” in this context typically means either opening credit card accounts or filing
fraudulent tax returns. And when individuals in the townhouse mentioned “PD,”
such as “My PDs always go,” Detective Sealy testified that PD typically refers to
personal drops—that is, the actual deposit of tax refunds from the U.S. Treasury to
the account associated with a debit card.
Detective Sealy also explained that when an individual said, “I never check
the confirmation,” the term “confirmation” usually refers to checking the status of
a tax refund on the IRS website. More still, after another individual said on the
video, “I’m going to have these chicks buy me some plastic,” Detective Sealy
testified that “plastic” refers to debit cards or credit cards. He said that criminals
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involved in this type of fraud commonly have third parties purchase the debit cards
for them in order for the fraudsters themselves to avoid store surveillance cameras.
The government then played a video clip where the individuals were
discussing leaving the townhouse and going to a hotel because they were
concerned that law enforcement was monitoring them. Detective Sealy confirmed
that, in his experience, individuals committing “stolen identity refund fraud” often
work out of hotels because using a hotel’s wi-fi internet makes it more difficult for
law enforcement to track the fraud.
Next, Yamile Colt, a witness from the Social Security Administration,
testified. Colt had examined a list of approximately 1,696 Social Security
numbers, which were all found within the documentary evidence seized from the
Mercedes and townhouse. Colt determined that all but 16 of the 1,696 numbers
were legitimate Social Security numbers that belonged to real people.
Included in that list were the names and Social Security numbers for the five
individuals named in Counts 3 through 7 of the indictment. Three of the named
individuals came to trial and testified that their PII appeared on documents seized
from the Mercedes, but that they had never given the Delvas permission to use
their PII and did not recognize either Bechir or Kenny.
Joanna Steisel, an IRS Analyst, then testified. Steisel explained that, when
someone electronically files a federal tax return, the IRS conducts what is called a
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24-hour check, where it verifies the accuracy of certain PII against its system.
Steisel also explained that the IRS assigns EFINs to tax preparation businesses so
that they can submit a large number of tax returns online on behalf of other people.
There is no limit to the number of returns you can file with an EFIN.
As to the Delvas’ fraud specifically, Steisel testified that she had reviewed
six pages of PII that the Agents recovered from Bechir’s Mercedes. The IRS
Analyst looked at whether the handwritten debit account numbers on those pages
of PII were associated with filed tax returns. She discovered that the accounts
were linked to 21 fraudulent tax returns that had been filed in March and April of
2014. These fraudulent tax returns had requested a total of $186,697 in tax
refunds. Of the requested refunds, the IRS directly deposited $51,441 in tax
refunds to the listed accounts. The fraudulent tax returns were all filed using
Gustavo Cruz’s EFIN.
After the government rested, the Delvas moved under Rule 29 of the Federal
Rules of Criminal Procedure for a judgment of acquittal. The district court denied
the Rule 29 motions.
B. Bechir Testifies
Bechir then testified on his own behalf. Bechir explained that, on June 9,
2014, he was living at his parents’ house, but went over to the townhouse to spend
time with friends. Bechir said that the townhouse belonged to a relative who was
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out of the country, but that Francois was living there at that time with his cousins.
Bechir had known Francois since they were children, as their parents were
neighbors.
Sometime after Bechir arrived, Francois and Kenny came over to the
townhouse too. According to Bechir, Francois warned him that the police were
watching and asked him to move some boxes out of the townhouse. Bechir
complied, carried Francois’s boxes to the Mercedes, and then moved his car to
another parking space. This is when the Special Agents confronted him. Bechir
testified that, after the Agents handcuffed him, they eventually took him back to
the townhouse, but he denied making any statements to the Agents that day. When
confronted with his written post-Miranda statement, Bechir explained that he was
scared and wrote exactly what an Agent told him to write.
On cross-examination, Bechir testified that he would go to the townhouse
once in a while to play videogames and basketball, but he was rarely there. Bechir
confirmed that he did not stay at the townhouse; rather, he stayed at his mother’s
house. When Bechir arrived on June 9, Francois’s cousins were on their
computers, and the guns, papers, and debit cards were in the townhouse. Bechir
admitted to seeing papers everywhere, but denied seeing any PII. Instead, he
thought the personal information was fake. Bechir testified that the papers, PII,
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and debit cards all belonged to Francois and his cousins. None of it belonged to
him or to Kenny.
The government then confronted Bechir with portions of the undercover
video. After viewing the clip where individuals were talking about the police
watching the townhouse, Bechir testified that he was not concerned about the
police presence because he was just at the townhouse to hang out. When the
government asked why Bechir was talking about jail on the recording, Bechir said
he was making a joke. Bechir admitted to seeing Kenny on the video recording,
but denied that Kenny was using a computer. Bechir also testified that he did not
know why Kenny was talking about going to a hotel or why it would be safer at a
hotel, explaining too that Kenny never told him anything about filing taxes at a
hotel. Bechir acknowledged that, after people on the video discussed the police,
someone told Kenny that he looked scared, but Bechir said that Kenny was “not
scared at all.” Bechir also agreed that, moments later, Kenny was holding papers,
but Bechir denied that it looked like Kenny was “packing up.”
Bechir did confirm that it was Kenny who said on the recording, “You know
when you work over and over, and you send everything at once, and you’re done,
that’s better.” Bechir, however, did not know what “work” meant in that statement
because Kenny was speaking in “code” or “street language.” Bechir also did not
know what Kenny meant when he said: “I’m going to have these chicks buy me
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some plastic.” Bechir maintained that he had no knowledge that Kenny was
involved in filing fraudulent tax returns.
While Bechir testified that Kenny bought the firearms found in the
townhouse, Bechir said that they were there for recreational use at a gun range—
not to protect the stolen identities or tax fraud proceeds. Though Bechir admitted
to moving the boxes to his car, he denied opening the boxes himself. Bechir
claimed that everything in the boxes belonged to Francois and his cousins. When
the government showed Bechir that his phone bill was found in one of those boxes,
Bechir could not explain how it got there, but suggested the Agents had planted it
to frame him. Bechir also did not know how his passport ended up in the
townhouse’s garage.
Kenny did not testify and the defense rested.
C. The Verdict and Sentences
The Delvas then renewed their Rule 29 motions. Noting that “the
government’s case got stronger with the cross-examination of Bechir,” the district
court denied the motions. After deliberating, the jury found Bechir and Kenny
guilty on all counts. The district court sentenced Bechir to 102 months’
imprisonment and Kenny to 84 months’ imprisonment. This is the Delvas’ appeal.
IV. BECHIR’S SUPPRESSION MOTION
On appeal, Bechir argues that the district court erred in denying his pre-trial
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suppression motion and then admitting into evidence the physical items seized
from his Mercedes.3 Bechir contends that no probable cause existed for the Agents
to search his car before obtaining a warrant. 4
A. Automobile Exception
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. To guarantee this right, the Fourth Amendment
generally requires law enforcement officials to obtain a warrant before conducting
a search. United States v. Watts, 329 F.3d 1282, 1284 (11th Cir. 2003). There are,
however, exceptions. Id.Under the automobile exception to the warrant requirement, “[t]he police
may search an automobile and the containers within it where they have probable
cause to believe contraband or evidence is contained.” California v. Acevedo, 500
3
“A denial of a motion to suppress involves mixed questions of fact and law. We review
factual findings for clear error, and view the evidence in the light most favorable to the
prevailing party. We review de novo the application of the law to the facts.” United States v.
Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).
4
On appeal, Bechir does not challenge the admission of the physical evidence seized from
the townhouse or his oral and written confessions. In his brief, however, Bechir mentions in an
argument summary and heading that the district court erred in failing to suppress his “arrest” and
that no probable cause existed for the Agents to stop him as he walked away from his Mercedes.
But other than simply stating this issue, Bechir does not explain or discuss it any further.
Because Bechir has not sufficiently raised this detention issue on appeal, he has
abandoned it. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n
appellant’s simply stating that an issue exists, without further argument or discussion, constitutes
abandonment of that issue and precludes our considering the issue on appeal.”).
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U.S. 565, 580, 111 S. Ct. 1982, 1991 (1991); United States v. Magluta, 418 F.3d
1166, 1182 (11th Cir. 2005). For a warrantless search of an automobile to be
constitutional, “(1) the automobile must be readily mobile, and (2) there must be
probable cause to believe that it contains contraband or evidence of a crime.”
United States v. Lanzon, 639 F.3d 1293, 1299–300 (11th Cir. 2011).
Probable cause exists to conduct a warrantless search when “there is a fair
probability that contraband or evidence of a crime will be found in the vehicle”
under the totality of the circumstances. United States v. Tamari, 454 F.3d 1259,
1261–62 (11th Cir. 2006) (quotations omitted). Facts provided by a confidential
informant and then independently corroborated by the government can support
probable cause to believe that a vehicle contains contraband. United States v.
Talley, 108 F.3d 277, 281–82 (11th Cir. 1997).
There is no dispute in this case that the Mercedes was operational. Our
inquiry is limited to determining whether probable cause existed to allow the
warrantless search of the vehicle. Upon review of the record, we readily conclude
that Agent Deslauriers had probable cause to conduct the initial search of the
Mercedes because there was a fair probability that the car contained evidence of a
crime.
To begin with, Francois told the Agents that Bechir and Kenny were
conducting identity theft and tax fraud operations out of the townhouse. To
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investigate this tip, the Agents equipped Francois with a recording device and sent
him to the townhouse on June 9, 2014. While inside, Francois took pictures and
sent them to the Agents, which showed a white shoebox lid flipped upside down
containing numerous debit cards and documents listing PII, multiple people using
laptops, a money counter, and a firearm. Francois’s covert video recording further
corroborated his account of Bechir’s and Kenny’s fraud operations.
After leaving the townhouse, Francois told the Agents that the individuals
knew law enforcement was surveilling the townhouse and planned to relocate their
operations and remove the fraud-related materials from the townhouse as soon as
possible. Consistent with Francois’s account, when Agent Eustice returned to the
townhouse, he saw Bechir removing three white shoeboxes and a backpack from
the townhouse and loading them in his Mercedes. The Agents had seen a white
shoebox lid containing debit cards and papers with PII in both the pictures from
Francois and in the undercover video.
And when Agents Eustice and Deslauriers looked through the windows of
the parked Mercedes, they could see the boxes in the car. One box lid was ajar,
and the Agents saw what appeared to be credit or debit cards inside. Given the
totality of these circumstances, at that point, a reasonable Agent could deduce with
a fair probability that the Mercedes contained evidence of a crime. See Tamari,
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454 F.3d at 1261–62. Thus, the Agents were entitled to search the Mercedes under
the automobile exception to the warrant requirement.
We recognize that Bechir argues, in a conclusory fashion, that no probable
cause existed to search the car because the Agents could not see evidence of fraud
in plain view in the Mercedes. 5 Based on the uncontroverted testimony of Agents
Deslauriers and Eustice, however, the district court found as fact that the boxes and
credit cards were in plain view in the Mercedes. To the extent that Bechir is
challenging this factual finding, he has not shown that it was clearly erroneous.
Before concluding, we address one final suppression issue. During the trial,
Bechir disavowed any connection to the activities inside the townhouse, or to the
townhouse itself at that time. Bechir maintained that he did not live at the
townhouse or otherwise stay there. In fact, Bechir said that he was rarely at the
townhouse and only visited once in a while. During the district court proceedings
and in the suppression motion, in particular, Bechir never claimed that his
Mercedes was parked in front of the townhouse or within its curtilage when the
Agents initially searched it without a warrant.
5
For the first time on appeal, Bechir contends that the district court incorrectly found that
the search of his Mercedes was permissible as a vehicle search incident to arrest under Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). This, however, was not the basis for the district
court’s denial of Bechir’s motion to suppress. As we set forth earlier, the district court found
that the search of the Mercedes was valid under the automobile exception and, alternatively,
under the inevitable discovery doctrine. Because we conclude that the search was valid under
the automobile exception and, alternatively, the inevitable discovery doctrine, we need not
examine the search-incident-to-arrest exception.
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Yet, before oral argument, Bechir filed a Federal Rule of Appellate
Procedure 28(j) letter citing Collins v. Virginia, 584 U.S. __, 138 S. Ct. 1663(2018), which addresses searching a vehicle within the curtilage of a home. To the
extent that Bechir seeks to raise a home-curtilage issue as to his vehicle, Bechir’s
reliance on Collins is misplaced. The facts in Collins involved a warrantless
search of a motorcycle that was parked at the top of a driveway that “abut[ted] the
house” of the defendant’s girlfriend. Id. at __, 138 S. Ct. at 1671. The Supreme
Court determined that the part of the driveway where the defendant’s motorcycle
was parked and subsequently searched constituted curtilage of the home. Id. The
question posed was “whether the automobile exception justifies the invasion of the
curtilage” of a home. Id. The Supreme Court then considered the relationship
between the Fourth Amendment protections provided to the curtilage of a home
and the automobile exception. Id. at __, 138 S. Ct. at 1675. Ultimately, the
Supreme Court held that “the automobile exception does not permit an officer
without a warrant to enter a home or its curtilage in order to search a vehicle
therein.” Id. (emphasis added).
In contrast to Collins, Bechir’s Mercedes, at the time of the search, was no
longer at the townhouse or parked in a driveway abutting the townhouse. Rather,
Bechir departed the townhouse (Unit 105, Building 2492) and drove along the
main Centergate Drive. After driving around a curve in the road, Bechir got off
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that main drag and turned into one of the other apartment communities within the
complex and parked. That parking area was not within the curtilage of the
townhouse where the Delvas conducted their fraud activities. See Florida v.
Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414 (2013) (instructing that the area
“immediately surrounding and associated with the home”—the curtilage—is “part
of the home itself for Fourth Amendment purposes”); United States v. Taylor, 458
F.3d 1201, 1206 (11th Cir. 2006) (A home’s curtilage is “[t]he private property
immediately adjacent to a home.”); Collins, 584 U.S. at __, 138 S. Ct. at 1671(explaining that the driveway abutting the house is “an area adjacent to the home
and to which the activity of home life extends, and so is properly considered
curtilage” (quotations omitted)). Therefore, Collins does not help Bechir.
B. Inevitable Discovery Doctrine
As an independent and alternative ground, we also conclude that the
evidence obtained from the warrantless search of the Mercedes was admissible
under the inevitable discovery doctrine. “Under the exception for ‘inevitable
discovery,’ the government may introduce evidence that was obtained by an illegal
search if the government can establish a reasonable probability that the evidence in
question would have been discovered by lawful means.” United States v. Johnson,
777 F.3d 1270, 1274 (11th Cir. 2015) (quotations omitted). The government must
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show that “the lawful means which made discovery inevitable were being actively
pursued prior to the occurrence of the illegal conduct.” Id. (quotations omitted).
Here, in addition to obtaining a warrant to search the Mercedes later that
same day, the Agents were actively pursuing that warrant before they initially
searched the Mercedes. Agent Goodwin went to secure a federal search warrant
immediately after debriefing Francois. While the warrant affidavit included Agent
Eustice’s observation of Bechir’s loading the boxes into his Mercedes, it did not
include information learned by Agent Deslauriers’ initial search of the vehicle.
The evidence in the Mercedes therefore would have been inevitably discovered
when the Agents later searched the vehicle pursuant to the search warrant.
For these reasons, the district court did not err in denying Bechir’s
suppression motion.
V. KENNY’S SUFFICIENCY OF THE EVIDENCE ISSUES
On appeal, Kenny argues that his seven convictions should be vacated
because there was insufficient evidence that he knowingly took part in the criminal
activities of identity theft and tax fraud. 6 We address each conviction in turn.
6
“We review de novo challenges to the sufficiency of the evidence to support a
conviction, viewing the evidence and all reasonable inferences derived therefrom in the light
most favorable to the government.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir.
2014). To sustain a verdict of guilt, the evidence “need not exclude every reasonable hypothesis
of innocence” or be “wholly inconsistent with every conclusion except that of guilt,” as long as a
“reasonable factfinder” choosing from among reasonable constructions of the evidence “could
find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Kelly, 888
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A. Conspiracy to Possess Unauthorized Access Devices
As to Count 1, Kenny argues that the evidence was insufficient to convict
him of conspiracy to possess 15 or more unauthorized access devices because there
was no evidence that he took part in any criminal activity or knew about any of the
processes by which he could obtain fraudulent tax refunds.
Section 1029(a)(3) makes it a crime for anyone to “knowingly and with
intent to defraud possess[] fifteen or more devices which are counterfeit or
unauthorized access devices.” 18 U.S.C. § 1029(a)(3). Section 1029(b)(2), in turn,
provides criminal liability for “[w]hoever is a party to a conspiracy of two or more
persons to commit an offense under subsection (a) of this section, if any of the
parties engages in any conduct in furtherance of such offense.” Id. § 1029(b)(2).
Social Security numbers and debit cards are “access devices.” See Baldwin, 774
F.3d at 722; see also 18 U.S.C. § 1029(e)(1) (defining “access devices” to include
“any card . . . [or] personal identification number . . . that can be used . . . to obtain
money, goods, services, or any other thing of value, or that can be used to initiate a
transfer of funds”).
F.2d 732, 740 (11th Cir. 1989). “This standard of review applies to both direct and
circumstantial evidence.” United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997).
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To obtain a conviction for conspiracy, the government must prove “beyond a
reasonable doubt, even if only by circumstantial evidence, that a conspiracy existed
and that the defendant knowingly and voluntarily joined the conspiracy.” United
States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotations omitted).
“Although mere presence at the scene of a crime is insufficient to support a
conspiracy conviction, presence nonetheless is a probative factor which the jury
may consider in determining whether a defendant was a knowing and intentional
participant in a criminal scheme.” Id. (quotations omitted). “A conspiracy
conviction will be upheld when the circumstances surrounding a person’s presence
at the scene of conspiratorial activity are so obvious that knowledge of its character
can fairly be attributed to him.” United States v. Garcia, 447 F.3d 1327, 1338
(11th Cir. 2006) (quotation and alteration omitted); see also United States v.
Brantley, 68 F.3d 1283, 1288 (11th Cir. 1995) (noting that the personal
relationship and close proximity between a defendant and co-conspirator during
the commission of an offense made it more likely that the defendant was aware of
the illicit plan).
Construed in the light most favorable to the government, the trial evidence
here permitted a reasonable jury to find Kenny guilty of the conspiracy charge
beyond a reasonable doubt. For starters, the June 9, 2014, undercover
investigation placed Kenny at the townhouse, along with Bechir and Francois.
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Both the Agents and Bechir identified Kenny on the undercover video that
Francois recorded. Notably, that video depicted Kenny right alongside laptops,
documents listing PII, debit cards, a money counter, and a rifle—all out in the
open. At one point, Kenny was holding a laptop power cord and papers. As
observed earlier, the fraudulent tax returns were filed using computers and the
papers containing PII had hundreds of names of real people with their dates of
birth and Social Security numbers.
Moreover, Kenny’s own statements on the undercover video demonstrated
that he knew that the PII and debit cards were being used in the identity theft and
tax fraud scheme. As Bechir confirmed at trial, it was Kenny who said: “[w]hen
you work over and over, and you send everything at once, and you’re done, that’s
better.” Detective Sealy testified that, in this type of fraud, the term “work” meant
using stolen PII to file a fraudulent tax return or to open a credit card account. On
the video, Kenny also said that “I’m going to have these chicks buy me some
plastic,” and Detective Sealy testified that “plastic” in this context referred to debit
or credit cards.
Also, after learning that the Agents were surveilling the townhouse, Kenny
said he was leaving and going to a hotel where it would be safer to “work.”
According to Detective Sealy, criminals involved in “stolen identity refund fraud”
often work out of hotels so that they can use the hotel’s wi-fi, which makes it
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harder for law enforcement to track their online activities. Around this time,
someone also told Kenny that he looked scared, and Bechir mentioned that
someone might go to jail. Moments later, Kenny was holding the laptop power
cord and papers, and then he left the townhouse.
Not only was Kenny present in the townhouse on June 9, his personal
belongings were found amidst the extensive evidence of fraud. In the townhouse,
the Agents found an IRS letter addressed to Kenny and receipts showing that
Kenny had purchased the three firearms. These items of Kenny’s were found
along with various documents containing PII, other documents listing Gustavo
Cruz’s EFIN, a boxful of prepaid debit cards, $29,000 in a safe, and money
counters. Then, in the garage, along with Kenny’s Audi service contract and
insurance records, Agents found other documents related to Gustavo Cruz, a record
showing that a parcel was shipped to the IRS, and instructions for obtaining an
EFIN.
In the three boxes Bechir moved from the townhouse to his Mercedes, the
Agents found one of Kenny’s bills comingled with several other documents listing
PII and even more prepaid debit cards. Importantly too, Kenny’s fingerprints were
found on one of the documents containing PII that was recovered from the
Mercedes. That document was a printed Excel spreadsheet that listed the names,
dates of birth, and Social Security numbers of 32 different people. And on that
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specific spreadsheet, there were debit account numbers written next to certain
individuals’ PII, which indicated that their personal information was used to file
fraudulent tax returns.
Furthermore, the IRS Analyst reviewed just six pages of these same type of
Excel spreadsheets and determined that the debit account numbers written next to
the PII entries were linked to 21 fraudulent tax returns that had been filed. Those
fraudulent tax returns had requested a total of $186,697 in tax refunds. Of the
requested refunds, the IRS directly deposited $51,441 in tax refunds to the listed
debit accounts. In addition, those fraudulent tax returns were all filed in the two
months preceding the June 9 investigation with Gustavo Cruz’s EFIN—the same
EFIN that the Agents found in the townhouse.
In sum, there was more than sufficient evidence for a reasonable jury to
convict Kenny of the conspiracy charge in Count 1.
B. Possession of Unauthorized Access Devices
As to his Count 2 conviction, Kenny argues that the evidence was
insufficient for the jury to find that he knowingly possessed 15 or more access
devices. As stated above, § 1029(a)(3) makes it a crime for anyone to “knowingly
and with intent to defraud possess[] fifteen or more devices which are counterfeit
or unauthorized access devices.” 18 U.S.C. § 1029(a)(3). “A person
constructively possesses an item when he has knowledge of the thing possessed
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coupled with the ability to maintain control over it or reduce it to his physical
possession, even though he does not have actual personal dominion.” Baldwin,
774 F.3d at 722 (quotations omitted). “Constructive possession also occurs when a
person exercises ownership, dominion, or control over the contraband itself or
dominion or control over the premises or the vehicle in which the contraband [is]
concealed.” Id. (quotations omitted).
The same evidence supporting the conspiracy to possess unauthorized access
devices amply shows that Kenny was aware of and had the ability to control the PII
and debit cards that were being used in the identity theft and tax fraud scheme. For
instance, the video recording placed Kenny in the townhouse surrounded by the
identity theft and tax fraud evidence and showed him talking about purchasing
“plastic,” among other things. Additionally, Kenny’s personal items were mixed
with the loose documents listing the PII, as well as the stacks of debit cards, in
both the townhouse and Mercedes, and his fingerprints were found on a document
containing PII. That page alone contained 32 individuals’ names, dates of birth,
and Social Security numbers and notations indicating that the personal information
was used to file fraudulent tax returns. This evidence was sufficient for the jury to
conclude that Kenny knowingly possessed the Social Security numbers and debit
cards used in the identity theft and tax fraud scheme.
C. Aggravated Identity Theft
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As to Counts 3-7, Kenny contends that his aggravated identity theft
convictions, under 18 U.S.C. § 1028A(a)(1), should be vacated because there was
insufficient evidence that he knew that the means of personal identification he
possessed belonged to real people.7
Section 1028A(a)(1) provides for an additional two-year sentence for
whoever “during and in relation to” certain felonies, including possession of 15 or
more unauthorized access devices, “knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another person.” 18 U.S.C.
§ 1028A(a)(1) (emphasis added). The “means of identification” element refers to
“a name, social security number, date of birth, or driver’s license number, among
other things.” United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011).
For aggravated identity theft convictions under § 1028A(a)(1), the
government must prove “that the defendant knew that the means of identification
at issue belonged to another person.” Flores-Figueroa v. United States, 556 U.S.
646, 657, 129 S. Ct. 1886, 1894 (2009). That is, the defendant must know that he
possessed “for example, a real ID belonging to another person rather than, say, a
fake ID (i.e., a group of numbers that does not correspond to any real Social
7
To the extent that Kenny argues that his aggravated identity theft convictions were not
supported by sufficient evidence that he had knowledge of the PII or identity theft in general, the
same evidence supporting the knowledge element for his conspiracy to possess unauthorized
access devices and possession of unauthorized access devices convictions establishes his
knowledge of the PII for the aggravated identity theft convictions as well.
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Security number).” Id. at 648, 129 S. Ct. at 1889. Therefore, to convict Kenny of
the five aggravated identity theft counts, the government was required to show that
Kenny knew the means of identification for L.C. (Count 3), J.F. (Count 4), C.L.
(Count 5), D.S. (Count 6), and G.S. (Count 7), belonged to real people. See
Baldwin, 774 F.3d at 723.
In United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010), this Court
established 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 to support aggravated identity theft convictions under
§ 1028A(a)(1). We held that a reasonable jury could have found that the
government had proved that the defendant 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. We explained that, because the defendant obtained a line of
credit and successfully used the Social Security card and birth certificate to obtain
a passport and two identification cards before she used the victim’s identity in the
charged offense, a reasonable trier of fact could have found the defendant knew the
identity belonged to a real person. Id. We reasoned further that a reasonable jury
could have found that “[the defendant] would not have sought credit using [the
victim’s] personal information if [the defendant] were not confident that [the
victim] likely had an actual credit history.” Id. Thus, “a defendant’s repeated and
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successful testing of the authenticity of a victim’s identifying information prior to
the crime at issue is powerful circumstantial evidence that the defendant knew the
identifying information belonged to a real person as opposed to a fictitious one.”
Doe, 661 F.3d at 562-63.
This Court reaffirmed that principle in United States v. Gomez-Castro, 605
F.3d 1245, 1248–49 (11th Cir. 2010), holding that the defendant’s purchase of the
victim’s birth certificate and Social Security card for $2,500 and repeated testing of
the authenticity of both by successfully obtaining a driver’s license, two credit
cards, and a bank account, was sufficient to show that the defendant knew the birth
certificate and Social Security card belonged to a real person for his aggravated
identity theft conviction under § 1028A(a)(1). We explained that “[b]oth the
circumstances in which an offender obtained a victim’s identity and the offender’s
later misuse of that identity can shed light on the offender’s knowledge about that
identity.” Id. at 1248.
In Baldwin, an identity theft and tax fraud case like this one, this Court held
that a reasonable jury could consider that a victim’s information was “used as part
of a scheme to obtain a refund from the IRS, which verifies the name and Social
Security number of the person requesting the refund, in considering whether [the
defendant] knew that [the victim] was a real person” for the aggravated identity
theft convictions under § 1028A(a)(1). Baldwin, 774 F.3d at 723–26. We also
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said that a jury could consider the origin of the personal information being used.
Id. at 723. There, the information was found on a document from the Florida
Agency for Persons with Disabilities, and the jury could infer that the state agency
did not keep records that did not relate to real people. Id.
Under this precedent, a reasonable jury could have found, beyond a
reasonable doubt, that Kenny knew the five victims’ personal information
belonged to real people because the Delvas were using the information “as part of
[their] scheme to obtain a refund from the IRS, which verifies the name and Social
Security number of the person requesting the refund.” Id. at 723–26. And the
Delvas’ identity theft and tax fraud scheme was working.
Indeed, the five victims’ names, dates of birth, and Social Security numbers
were found listed on spreadsheets in one of the boxes that Bechir moved from the
townhouse to his car. Kenny’s fingerprints were on one of the spreadsheet
documents, along with notations indicating that the personal information was used
to file fraudulent tax returns. The evidence indicated that the Delvas either already
had used or planned to use the names, dates of birth, and Social Security numbers
contained in these same spreadsheets to request fraudulent tax refunds from the
IRS. In six pages worth of spreadsheets alone, the Delvas already had used 21
identities to file fraudulent tax returns. The fraud scheme clearly worked because
the IRS paid out $51,441 in refunds in connection with those fraudulent tax
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returns. To be sure, “[u]sing stolen identities was the central feature of the
scheme.” See United States v. Sammour, 816 F.3d 1328, 1337 (11th Cir. 2016)
(holding that evidence was sufficient to find identifications belonged to real people
to support convictions of aggravated identity theft where, inter alia, a defendant
had sophisticated knowledge of stolen identity refund scheme and was sure that
checks from the IRS were valid). A reasonable jury could have found that Kenny
would not have sought a refund from the IRS with the personal information he
possessed, including the five victims’ information, unless he thought that the
victims were real people with real Social Security numbers. See Holmes, 595 F.3d
at 1258.
Further, from the sheer volume of PII listed on the documents seized in this
case, the jury could infer that the Delvas expected their ongoing tax-fraud scheme
to continue working for some time. The Delvas possessed nearly 1,700 names
with Social Security numbers, and all but 16 of those belonged to real people.
Even after learning that law enforcement was surveilling them, Kenny planned to
relocate the operations and continue “working” out of a hotel. Viewing this
evidence in the light most favorable to the government, the jury could infer that the
identity theft and tax fraud scheme was working and that Kenny knew that all of
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the names, dates of birth, and Social Security numbers listed in those spreadsheets,
including those of the five named victims, belonged to real people. 8
VI. THE EXPERT OPINION ISSUE
Together, the Delvas next argue that the district court abused its discretion in
permitting Detective Sealy to testify as an expert in identity theft and tax fraud and
the terminology and jargon used in this type of crime. Specifically, their
objections relate to Sealy’s opinion interpreting what he saw on the undercover
video and to his testimony on terminology. 9
A. Detective Sealy’s Expert Testimony
In determining the admissibility of expert testimony under Federal Rule of
Evidence 702, a district court must consider whether: “(1) the expert is qualified to
testify competently regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions is sufficiently reliable as
8
In this particular Section V(C), we have focused on Counts 3 through 7. But as to
Counts 1 and 2, to the extent Kenny also argues the government failed to prove he knew the PII
belonged to real people, that claim fails because knowledge that the PII belonged to real people
is not a requirement of his convictions under § 1029(b)(2) in Count 1 and § 1029(a)(3) in Count
2. 18 U.S.C. § 1029(a)(3), (b)(2). In any event, the evidence in this case was sufficient to show
Kenny knew the PII belonged to real people with regard to Counts 1 and 2 as well.
9
We note that, while Kenny objected at trial to the admission of Detective Sealy’s expert
testimony, Bechir did not and thus our review is for plain error. However, because we conclude
that the Delvas have not shown any error, much less plain error, we need not undertake a
separate plain error analysis here.
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determined by the sort of inquiry mandated in Daubert; 10 and (3) the testimony
assists the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue.”
United States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015). 11
It is well-settled that experienced and qualified law enforcement agents can
testify as experts to decode criminal conversations and operations that jurors might
not otherwise understand. See, e.g., Holt, 777 F.3d at 1265 (holding the district
court did not err in permitting an agent to “testify as to the meanings of coded
language used by the defendants in intercepted communications” relating to their
narcotics charges because of agent’s extensive involvement in this investigation
and her training and experience in previous wiretaps); United States v. Emmanuel,
565 F.3d 1324, 1335 (11th Cir. 2009) (“The operations of narcotics dealers,
including drug codes and jargon, are proper subjects of expert testimony”); Garcia,
447 F.3d at 1335 (recognizing well-established rule that an experienced narcotics
agent may testify as an expert to interpret drug codes and terminology to help a
jury understand the significance of operations unique to the drug distribution
10
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
11
We review a district court’s decision to admit expert testimony for an abuse of
discretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not
reverse a district court’s evidentiary ruling in the absence of manifest error. Holt, 777 F.3d at
1264. As we have explained, “a district court enjoys considerable leeway” in making its
evidentiary rulings. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).
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business); United States v. Cross, 928 F.2d 1030, 1051 n.65 (11th Cir. 1991)
(noting that it was proper for an FBI agent to testify that, in communicating with
one another, pedophiles use certain code words to refer to photographs of
children); United States v. Brown, 872 F.2d 385, 392 (11th Cir. 1989) (determining
that the district court did not err in allowing FBI agent to testify as to drug code
words); United States v. Masson, 582 F.2d 961, 963–64 (5th Cir. 1978) (finding no
error where FBI agent with extensive experience and knowledge of bookmaking
operations and terminology gave expert testimony interpreting gambling jargon to
aid the jury’s understanding of recorded conversations); United States v. Alfonso,
552 F.2d 605, 618 (5th Cir. 1977) (upholding use of expert testimony to supply
meaning to the “cryptic nature of [some] recorded conversations, often framed in
jargon peculiar to the gambling trade” because “it was appropriate to present
expert testimony to supply meaning to the conversations and explain the roles of
the appellants”).
“[F]ederal courts have ordinarily allowed law enforcement officials to testify
as experts . . . to establish the modus operandi of particular crimes, in order to
explain the actions of the defendants.” Cross, 928 F.2d at 1050 (quotations
omitted); see also United States v. Burchfield, 719 F.2d 356, 358 (11th Cir. 1983)
(concluding that an agent’s testimony regarding counterfeit-bill-passing techniques
helped to elucidate the actions of the defendants).
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Here, the district court did not abuse its discretion in allowing Detective
Sealy to testify as an expert witness as to the meanings of the terminology used in
stolen identity refund fraud generally or by the individuals recorded on the
undercover video specifically. First, Detective Sealy was qualified to testify
competently regarding the terminology used in this type of fraud based on his
training and experience. Detective Sealy received extensive training on identity
theft crimes from the IRS, U.S. Secret Service, Citibank, Homeland Security,
Discover Card, Broward Community College, and the Broward College Police
Academy. His IRS training specifically focused on the ways in which stolen
identities are used to fraudulently request tax refunds and how to investigate those
crimes.
As to his experience, Detective Sealy had personally participated in more
than 75 fraud-related investigations, sometimes in an undercover capacity, with 50
of those investigations involving tax fraud. He had listened in on over 30 jail calls
placed by defendants charged with stolen identity refund fraud and debriefed over
20 such cooperating defendants. Detective Sealy had even taught classes on fraud-
related topics, as well as previously testified in a case in federal court as an expert
in fraud investigations and terminology. Detective Sealy clearly was an
experienced agent with specific and substantial exposure to “stolen identity refund
fraud.” See Garcia, 447 F.3d at 1334–35 (finding agent to be properly qualified as
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an expert because he “had been a DEA agent for several years and had received
training regarding the operation and structure of drug trafficking organizations and
how those organizations transport and distribute drugs,” as well as personally
participating in at least 50 drug investigations and numerous wiretap
investigations, which made him familiar with the coded language that some drug
trafficking organizations use); Holt, 777 F.3d at 1265 (“Agent Sargent was
qualified based on, most notably, her extensive involvement in this particular
investigation, including review of more than 99 percent of the intercepted
communications in this case, as well as her training, experience in previous
wiretaps, and general investigative experience during her six years as a DEA
Agent.”).
Second, Detective Sealy’s methodology was reliable because his opinions
were based on his extensive experience working on stolen identity refund fraud
cases, including investigating them, working undercover, listening in on numerous
jail calls, and debriefing defendants charged with this crime. Based on these
investigations, Detective Sealy was familiar with the methods by which stolen
identity refund fraud is conducted and the terminology used in this type of fraud.
Of the 50 tax fraud cases Detective Sealy investigated, the majority involved
criminals using coded terminology.
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Third, Detective Sealy’s testimony assisted the jury in understanding how
the slang terms used by Bechir and Kenny related to the terminology used in this
stolen identity refund fraud. For example, in his post-Miranda interview, Bechir
admitted to finding the “fos” online and using it to file fraudulent tax returns.
Detective Sealy competently testified that, in South Florida, “fos” is a common
slang term used in “stolen identity refund fraud” and means personal identifying
information or PII, such as an individual’s name, date of birth, and Social Security
number. On the undercover video recording, when Kenny said that he was going
to “have these chicks buy me some plastic,” Detective Sealy explained to the jury
that “plastic” refers to debit cards or credit cards. This scheme involved having the
tax refunds deposited in debit card accounts that were opened using the same PII
that was used to file corresponding fraudulent tax returns. While a lay person
might be able to guess the meanings of the code words or terminology used by
Bechir and Kenny, Detective Sealy “could—based on [his] training and
experience—interpret the meaning of the words more accurately than a lay person
or the prosecutor.” See Holt, 777 F.3d at 1266.
To the extent that the Delvas contend that allowing Detective Sealy to testify
as an expert permitted him to invade the province of the jury and give his opinion
on their ultimate guilt, we find no support for that contention in the record.
Detective Sealy’s testimony was focused on describing stolen identity tax refund
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fraud generally and explaining the meanings of particular words used on the video
recording. The record does not show that Detective Sealy offered overall opinions
as to Bechir’s or Kenny’s guilt. The district court did not err, much less manifestly
err, in admitting Detective Sealy’s testimony.
VII. CUMULATIVE ERROR
The Delvas’ last argument concerning their convictions is that cumulative
error by the district court requires reversal. Bechir and Kenny have not established
a single error, let alone the aggregation of “many errors” that may require a
reversal where the individual errors do not. See United States v. Baker, 432 F.3d
1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington,
547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). The Delvas’ cumulative error
claim therefore lacks merit.
VIII. SENTENCING ISSUES
Both Delvas raise sentencing issues. After the guilty verdicts, a probation
officer prepared presentence investigation reports (“PSI”) for the Delvas.
A. Bechir’s Sentencing
Bechir’s PSI applied a base offense level of 6 under U.S.S.G. § 2B1.1(a)(2)
because he was convicted of a fraud crime with less than a 20-year statutory
maximum term of imprisonment. The PSI increased Bechir’s offense level to 26
based on: (1) a 14-level increase under § 2B1.1(b)(1)(H) because the loss amount
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was $1,014,697; (2) a 2-level increase under § 2B1.1(b)(2)(A)(i) because the
offense involved more than 10 victims; (3) a 2-level increase under § 3C1.1
because Bechir willfully obstructed justice by falsely testifying at trial; and (4) a 2-
level increase under § 2B1.1(b)(15)(B) because the offense involved possession of
a firearm in connection with the offense.
Bechir’s total offense level of 26 and criminal history category of I yielded
an advisory guidelines range of 63 to 78 months’ imprisonment for Counts 1 and 2.
As to Counts 3-7, Bechir was subject to a mandatory 24-month prison term, which
was required to be served consecutive to any other sentence imposed for Counts 1
and 2, but that could be imposed concurrently with each other. See 18 U.S.C.
§ 1028A(a)(1), (b)(2), and (b)(4).
Bechir’s only objection to his guidelines range calculation was to the
application of the firearm enhancement. At the sentencing hearing, Bechir argued
that, although he had admitted that the firearms were in the townhouse for
protection against getting robbed, the firearm enhancement was improper because
the weapons were not used in any way.
The district court overruled this objection to the firearm enhancement,
finding that “[t]he gun was clearly there as a means of enforcement or protection to
protect the fraud factory that was going on there.” The district court found further
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that possessing the gun was “inherent to the fraud crime that was going on and a
part of it.”
The district court stated that it had considered the Sentencing Guidelines, the
18 U.S.C. § 3553(a) factors, and Bechir’s personal characteristics, among other
things. Highlighting the need for deterrence, the district court found it appropriate
to impose a sentence that could prevent others who would be “tempted to make a
quick, easy buck and swindle the government out of thousands, if not hundreds of
thousands of dollars.”
The district court sentenced Bechir to imprisonment of: (1) 60 months on
Count 1 (the conspiracy); (2) 78 months on Count 2 (the possession of
unauthorized access devices) to run concurrent with Count 1; and (3) 24 months on
each of Counts 3-7 (the aggravated identity thefts) to run concurrent with each
other, but consecutive to Counts 1 and 2.
B. Kenny’s Sentencing
The PSI’s calculation of Kenny’s advisory guidelines range was largely
identical to Bechir’s, except that Kenny did not receive the 2-level obstruction of
justice increase under § 3C1.1. Kenny’s total offense level of 24 and criminal
history category of I yielded an advisory guidelines imprisonment range of 51 to
63 months’ imprisonment for Counts 1 and 2. As to Counts 3-7, Kenny was
subject to a mandatory 24-month prison term, which was required to be served
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consecutive to any other sentence imposed for Counts 1 and 2, but that could be
imposed concurrently with each other. See 18 U.S.C. § 1028A(a)(1), (b)(2), and
(b)(4).
As with Bechir, Kenny objected to the firearm enhancement. Kenny argued
that, even though Bechir said that Kenny bought the firearms and Bechir kept them
“for protection from robbery,” there was no evidence that Kenny: (1) was aware
that Bechir was using the firearms for protection; (2) had possession or control of
the firearms after giving them to Bechir; or (3) had any intent or plan to use the
firearms for protection. At the sentencing hearing, Kenny acknowledged the
strength of Bechir’s admissions that the firearms were used for protection in the
fraud scheme, but argued nevertheless that there was no evidence linking Kenny to
the use of those firearms other than the fact that he bought them for his brother
Bechir.
The district court overruled this objection, finding that “the rifle was there in
open view for easy access, so that the people who were involved in the fraud
factory could grab it real quick and defend themselves . . . if someone was going to
try to rip them off.” The district court found further that everyone who was in the
room with the rifle and participating in the fraudulent tax return scheme was in
constructive possession of the firearm, and it was reasonably foreseeable to all of
them that the gun was there to protect “the fraud factory.”
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After considering the Sentencing Guidelines and the § 3553(a) factors, the
district court sentenced Kenny to imprisonment of: (1) 60 months on each of
Counts 1 and 2 to run concurrent to each other; and (2) 24 months on Counts 3-7,
to run concurrent with each other, but consecutive to Counts 1 and 2.
C. Firearm Enhancement
On appeal, both Bechir and Kenny argue that, in calculating their advisory
guidelines ranges for Counts 1 and 2, the district court erred in applying the 2-level
enhancement under § 2B1.1(b)(15)(B) for possession of a firearm in connection
with their offenses. Individually, Bechir contends that the district court erred in
applying the enhancement because his post-Miranda written statement was
insufficient to trigger the firearm enhancement, and there was no other evidence
that he intended to use the firearm for protection. Kenny argues that the district
court erred when it found he was in constructive possession of the firearm found in
the townhouse because there was no evidence that he possessed the firearm, knew
that Bechir was using the firearm for protection, or was aware of the money in the
safe.
In reviewing the procedural reasonableness of a sentence, we must “ensure
that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
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on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
United States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (quotations
omitted). When a defendant challenges the application of a sentencing
enhancement, we review a district court’s factual findings on the disputed
sentencing enhancement only for clear error and its application of the Sentencing
Guidelines to those facts de novo. United States v. Matos-Rodriguez, 188 F.3d
1300, 1309 (11th Cir. 1999). Under clear error review, we will not disturb the
district court’s findings unless we are left with a definite and firm conviction that a
mistake was made. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017).
The Sentencing Guidelines provide for a two-level offense increase if a
defendant possessed a dangerous weapon, such as a firearm, in connection with his
fraud offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B) (2016). The mere
possession of a firearm during the commission of an offense can, in certain
circumstances, be sufficient to apply a sentencing enhancement. United States v.
Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (holding that a firearm sentencing
enhancement for mere possession is proper “where it is reasonable to assume that a
defendant possesses a firearm, even without using it, to prevent the theft of
counterfeit currency in his possession”). We look at the circumstances
surrounding the offense and firearm possession to determine whether it is
reasonable to infer that the firearm might be used during an offense. See United
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States v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001). A co-conspirator’s
possession of a firearm may be attributed to the defendant if the co-conspirator’s
possession of the firearm was reasonably foreseeable by the defendant, occurred
while the defendant was a member of the conspiracy, and was in furtherance of the
conspiracy. United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir. 2010).
In this case, the district court did not err in applying the firearm
enhancement or clearly err in finding that Bechir and Kenny had possessed a
firearm in connection with their offenses. Bechir and Kenny were conducting
substantial identity theft and tax fraud operations out of the townhouse. Not only
did they have scores of PII and debit cards there, they also kept the proceeds from
their fraud in the townhouse—$29,000 in a safe. Amidst all the fraud-related
materials and money, the Delvas had a rifle that Kenny had purchased leaning up
against the wall in the exact same room and at the exact same time as they were
conducting their various fraudulent activities.
More still, Bechir expressly admitted in his post-Miranda statement that the
firearms were kept in the townhouse to protect them from being robbed. Although
Bechir testified at trial that the Agents coerced his statement and the firearms were
actually kept for recreational purposes, the district court was free to reject that
testimony and conclude instead that the gun was in the townhouse to protect the
fraud operations.
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And while Kenny now disclaims any knowledge of the purpose of the
firearm or the money in the safe, the trial evidence indicated otherwise. Kenny
was the registered owner of the firearms found in the townhouse and a knowing
participant in the identity theft and tax fraud scheme. Even though Bechir said that
he kept the guns for protection, possession of the firearms could be properly
attributed to Kenny too because it was reasonably foreseeable that Bechir would
possess a firearm in furtherance of the fraud in any event. See Villarreal, 613 F.3d
at 1359. Indeed, Kenny purchased the firearms for Bechir.
Based on this record, the district court did not clearly err in finding that the
rifle was in the townhouse as a means of protection against potential robberies and,
thus, both Delvas possessed the firearm in connection with their offenses. See
Matos-Rodriguez, 188 F.3d at 1309 (holding that a defendant who “possessed [a]
pistol to prevent theft [of counterfeit money] during a close, face-to-face,
hand-to-hand encounter with a person he apparently did not know well” possessed
a firearm “in connection with” the offense). Therefore, the 2-level increase
pursuant to § 2B1.1(b)(15)(B) was properly applied to Bechir’s and Kenny’s
sentences.
D. Substantive Reasonableness
Kenny asserts that his total 84-month sentence was substantively
unreasonable because the nature and circumstances of his offenses, the need to
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reflect the serious of the offenses, and the need to protect the public, all support a
lesser sentence.
We review the reasonableness of a sentence under the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007). “The party challenging the sentence bears the burden to show
that the sentence imposed is unreasonable in light of the record and the 18 U.S.C.
§ 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The district court must impose a sentence sufficient, but not greater than
necessary, to comply with the purposes listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public. See 18 U.S.C. § 3553(a)(2). The district court must also consider, among
other things, the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
advisory guidelines range, the pertinent policy statements of the Sentencing
Commission, and the need to provide restitution to victims. 18 U.S.C.
§ 3553(a)(1), (3)-(7).
We have made clear, though, that the weight given to any specific § 3553(a)
factor is committed to the sound discretion of the district court. United States v.
Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016). We will not remand for
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resentencing unless we are “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Id. (citing United States v. Irey, 612 F.3d 1160, 1190
(11th Cir. 2010) (en banc)). And while we do not presume that a sentence falling
within the guidelines range is reasonable, we ordinarily expect it to be so. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “A sentence imposed well
below the statutory maximum penalty is another indicator of reasonableness.”
Croteau, 819 F.3d at 1310.”
Kenny has not demonstrated that his 84-month sentence was substantively
unreasonable. In fashioning Kenny’s sentence, the district court considered the
Sentencing Guidelines and the § 3553(a) factors and imposed a total
within-guidelines sentence of 60 months’ imprisonment followed by the mandatory
consecutive 24-month sentence for his five aggravated identity theft convictions.
We normally expect a sentence falling within the guidelines range to be
reasonable. See Hunt, 526 F.3d at 746. The district court also ordered that
Kenny’s five mandatory 24-month aggravated identity theft sentences run
concurrently with each other, not consecutively to each other, which resulted in a
significantly shorter total sentence. Although the district court emphasized the
need to deter others from engaging in this type of fraud when it imposed Kenny’s
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sentence, the district court did not abuse its discretion in doing so. Finally,
Kenny’s total 84-month sentence was well below the 25-year statutory maximum
for all of the charged crimes combined, another indicator of reasonableness. See
Croteau, 819 F.3d at 1310.
IX. CONCLUSION
For the reasons stated above, we affirm Bechir Delva’s and Kenny Delva’s
convictions and sentences.
AFFIRMED.
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