United States v. Rohan Hope ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12213
Non-Argument Calendar
________________________
D.C. Docket No. 0:15-cr-60137-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROHAN HOPE,
a.k.a. D.L.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 19, 2017)
Before JORDAN, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
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Rohan Hope appeals his conviction for aggravated identity theft and his 60-
month-imprisonment sentence following his guilty plea to falsely claiming United
States citizenship. We affirm in part, vacate and remand in part.
I. BACKGROUND
Hope, a Jamaican citizen, visited a Florida Department of Highway Safety
and Motor Vehicles (“DMV”) branch in Broward County to obtain a Florida
driver’s license on November 10, 2014. Hope provided a birth certificate of D.L.,
a real person, to a DMV examiner. Based on that birth certificate, his country of
birth was listed as the United States (“U.S.”). The birth certificate was scanned
into the database by the examiner and appeared to be an original based on the
watermarks and seal on the document. Although the state of birth listed on the
birth certificate was Illinois, the examiner made a mistake and entered Florida as
Hope’s state of birth. The DMV examiner also scanned the social security card
Hope provided, which was in D.L.’s name and had D.L.’s social security number,
into the database. Hope’s citizenship status was listed as a U.S. citizen, based on
those documents. Hope affirmed the information he provided was true under
penalty of perjury.
After submitting D.L.’s documentation and passing the road signs and road
rules tests, Hope received a learner’s permit. Two days later, on November 12,
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2014, Hope returned to the DMV branch to take the driving test and received a
driver’s license using D.L.’s identification. Hope again swore to the veracity of
the driver’s license application under penalty of perjury
On June 19, 2015, Hope was indicted for one count of False Claim of U.S.
Citizenship, in violation of 18 U.S.C. § 1015(e) (“Count One”), and one count of
Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1) (“Count Two”).
On September 24, 2015, U.S. Marshals executed a search warrant at Hope’s
residence in Philadelphia, where they found his wallet containing a Florida driver’s
license with his picture and D.L.’s name. Inside the wallet, U.S. Marshal Chad
Grant also found an improperly formatted Pennsylvania identification card and a
Jamaican driver’s license with Hope’s picture and a fraudulent name.
Hope pled guilty to Count One1 but contested Count Two in a nonjury trial.
At the bench trial, the government introduced the parties’ trial stipulations and read
the stipulations into evidence:
1
Hope and the government agreed upon the following factual bases for Count One: (1) Hope, a
Jamaican citizen, applied for a Florida driver’s license on November 10, 2014, at the DMV in
Broward County, Florida; (2) Hope was an alien at that time; (3) to obtain the driver’s license,
Hope submitted an application claiming to be D.L., a U.S. citizen, and provided proof of D.L.’s
identity with an Illinois birth certificate bearing D.L.’s name and date of birth, and a social
security card bearing D.L.’s name and social security number; (4) Hope was photographed by
Broward County DMV staff on November 10 and 12, 2014; (5) on November 10 and 12, 2014,
Hope signed, under penalty of perjury, the information he provided was correct; and (6) Hope
was issued a learner’s permit in D.L.’s name on November 10, 2014, and a driver’s license in
D.L.’s name on November 12, 2014.
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1. The individual identified in the indictment as DL is a real person.
DL’s date of birth is December 17, 1977. DL’s Social Security
number ends in 9407.
2. Between April 16, 2001 and November 6, 2014, DL was issued ten
Illinois state identification cards.
3. Government’s Exhibits 1 through 4 are certified Florida [DMV]
records and admissible.
4. Government’s Exhibit 5, a Florida driver license in the name of DL
was in [Hope’s] possession on September 24, 2015.
5. [Hope] is a citizen of Jamaica. Prior to November 10, 2014, [Hope]
applied for a United States nonimmigrant visa on five occasions.
Trial Tr. at 48 (Jan. 11, 2016). The government called DMV records custodian and
prior driver’s license examiner Mario Rallo, who testified as to Hope’s driver’s
license application under D.L.’s name and to the DMV general driver’s license
application and verification procedures. The government introduced the driver’s
license record from the DMV database under D.L.’s name, which contained an
Illinois birth certificate in D.L.’s name, a social security card in D.L.’s name, an
address certification in D.L.’s name, a photograph, a statement that “under penalty
of perjury, I swear or affirm that the information given by me in this application is
true and correct,” and the applicant’s signature under the statement. Id. at 57. The
government introduced D.L.’s driver’s license transaction page from the DMV on
November 12, 2014, which contained a signed and dated photograph of Hope.
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U.S. Marshal Grant also testified regarding the search of Hope’s residence on
September 24, 2015.
The district judge found, beyond a reasonable doubt, Hope knew at the time
he used D.L.’s identifying information those means of identification belonged to a
real person. The judge explained:
Hope in seeking to go forward with his application for a Florida
driver’s license swore under penalty of perjury that the representations
that he was making to the examiner were true and correct. . . .
. . . Clearly [Hope] in an effort to meet these requirements came in
with documentation that had all of the indication of legitimacy, of a
real human being, and he was successful the very first time, that is
that as a result of his first visit to the [DMV], he ended up with a
learner’s permit, and then came back two days later, apparently took
the driving test, and again, reaffirming and remaking the same
representations, he ended up with a Florida driver’s license.
Id. at 146. The judge considered the means of identification Hope used had been
government-issued documents; he had signed documents subjecting himself to
perjury; and, after he had been successful in using the means of identification to
secure a learner’s permit, he returned two days later to retest with those means to
obtain a driver’s license. The judge found Hope guilty of Count Two.
Prior to sentencing, a probation officer prepared a presentence investigation
report (“PSI”). In addition to the facts established at trial, the PSI stated Hope is
affiliated with the Jamaican gang known as One Order; he had been arrested in
Jamaica for 2010 gang-related shootings; and, during a search of Hope’s residence
in Pennsylvania, police had discovered 352 grams of marijuana, several weapons,
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cell phones, and the Jamaica driver’s license with a fraudulent name and Hope’s
photograph. With no enhancements or reductions, and with zero criminal-history
points, the PSI set the combined-adjusted-offense level at eight and assigned Hope
a criminal history category of I. The maximum-statutory sentence was five years
of imprisonment for Count One and two years of imprisonment for Count Two,
which must run consecutively to any other counts.2
Hope objected to the PSI and asserted he is “not gang affiliated.” Def.’s
Objs. to PSI at 1. While his brother was gang-involved and killed by police, Hope
argued he should not be so labeled based on his brother’s activities. The
government responded and attached documents it argued established Hope was
affiliated with One Order. It submitted a university-published profile of One Order
(“One Order profile”) stating Hope, also known as “Blacka,” became the leader of
the gang involved in extortion and money-laundering activity. Gov’t Resp. to
Def.’s Objs. Attach. A at 2. The profile also cited several Jamaican news articles
documenting violent acts by One Order. The government submitted the sworn
affidavit of Samuel Blake, Deputy Superintendent of Police for Jamaica and head
of the Constabulary Force’s National Strategic Anti-Gang Unit, in which he
attested Hope’s brother, Andrew Hope, led One Order from 2004 until his death in
2006. Deputy Blake attested to activities of Andrew Hope based on “interviews of
2
18 U.S.C. §§ 1015(e), 1028A(a)(1).
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numerous gang members and wannabes,” “reports and strategic assessments,”
“research conducted into the operation of the One Order gang,” and “briefings
provided to [him] from various sources.” Gov’t Resp. to Def.’s Objs. Attach. B at
2. The government then filed a motion for upward variance and contended the
goals of deterrence and protection of the American and Jamaican public supported
a 54-month upward variance from the 0-6 months of the Sentencing Guidelines
imprisonment range.
At the sentencing hearing, Hope again objected to the PSI finding he was
gang affiliated. To prove Hope was affiliated with One Order, the government
called Homeland Security Investigations Special Agent Songura Cole, who was
qualified as an expert in Jamaican organized crime and One Order. He testified
One Order engaged in weapons smuggling, narcotics smuggling, murder for hire,
weapon exchanges for drugs, and extortion. Agent Cole interviewed multiple One
Order gang members, two of whom specifically told him “Placka” was the leader
of the gang; Placka was the nickname for Hope. Sentencing Hr’g Tr. at 21 (Apr.
14, 2016). The government introduced Deputy Blake’s affidavit, the One Order
profile pictures of graffiti in a Jamaican town allegedly controlled by One Order, a
picture of a mural of One Order’s prior gang leaders welcoming Placka as the new
leader, newspaper articles reporting Hope’s arrest and referring to Hope as the
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purported leader of One Order, 3 and a recording and a transcription of the “One
Order Anthem” song. Id. at 50-51. After the government introduced Deputy
Blake’s affidavit and read portions of it into evidence, Agent Cole testified those
portions, “to the best of [his] knowledge,” were true. Id. at 31.
Hope made hearsay or relevance objections to the government’s exhibits.
The district judge sustained Hope’s objection to the reliability of the One Order
profile and overruled Hope’s objections to the remaining hearsay, because,
although each individually was unreliable, they “buttress[ed] each other and
corroborate[d] the reliable hearsay” presented in Blake’s sworn affidavit.
Sentencing Hr’g Tr. at 43 (Apr. 14, 2016). He overruled Hope’s objection to
Deputy Blake’s affidavit and stated:
I am satisfied that the affidavit is in fact reliable hearsay. It is
one of those categories that the Court[s] have looked at and I
understand there may be a problem in terms of the adequacy and
specificity and correctness of what it states and so on.
I am going to rely on that and not consider the other
information.
Sentencing Hr’g Tr. at 8 (Apr. 27, 2016).
The district judge concluded Agent Cole’s credible testimony, Deputy
Blake’s reliable affidavit, and the undisputed facts in the PSI sufficiently proved by
a preponderance of the evidence Hope was the leader of One Order, a very serious
3
The articles refer to Hope as “Placka” and “Blacka.” Sentencing Hr’g Tr. at 45, 46, 48 (Apr.
14, 2016).
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criminal gang. The judge found Hope took over as the leader after his brother was
murdered, and the gang was notorious for the very serious crimes listed in Deputy
Blake’s affidavit. Additionally, the judge found the guns, drugs, and multiple
cellphones discovered in Hope’s Philadelphia residence belonged to him and
evidenced ongoing criminal-drug trafficking. These facts showed Hope’s purpose
in obtaining false identification was criminal and much more dangerous than
typical aggravated identity-theft cases. Given these facts and weighing heavily
Hope’s history and characteristics under 18 U.S.C. § 3553(a), the judge granted the
government’s motion for an upward variance. The judge sentenced Hope to 36
months of imprisonment on Count One and 24 months of imprisonment on Count
Two, to run consecutively.
On appeal, Hope argues the evidence was insufficient to support the
conclusion Hope knew D.L.’s identifying information belonged to a real person,
where there was no evidence he tested the identifying information prior to
submitting his driver’s license application to the DMV. Hope also argues the
judge clearly erred in finding Hope was the leader of the One Order gang and in
basing the upward variance and sentence on that erroneous finding. Finally, Hope
contends his 60-month-imprisonment sentence was substantively unreasonable.
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II. DISCUSSION
A. Sufficiency of the Evidence
“We review de novo whether there is sufficient evidence in the record to
support a [factfinder’s] verdict in a criminal trial, viewing the evidence in the light
most favorable to the government, and drawing all reasonable factual inferences in
favor of the [factfinder’s] verdict.” United States v. Jiminez, 564 F.3d 1280, 1284
(11th Cir. 2009). “We will not reverse unless no reasonable trier of fact could find
guilt beyond a reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333
(11th Cir. 2010). We will sustain a verdict “where there is a reasonable basis in
the record for it.” Id. (citation and internal quotation marks omitted). This is true
even when the district judge, instead of a jury, acts as the trier of fact. Id.
“Whoever, 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). To support a conviction under § 1028A(a)(1), the
government must prove “the defendant: (1) knowingly transferred, possessed, or
used; (2) the means of identification of another person; (3) without lawful
authority; (4) during and in relation to a felony enumerated in § 1028A(c).” United
States v. Barrington, 648 F.3d 1178, 1192 (11th Cir. 2011) (citation and internal
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quotation marks omitted). The enumerated felonies in § 1028A(c) include felony
violations of 18U.S.C. § 911 “relating to false personation of citizenship.” 18
U.S.C. § 1028A(c)(2).
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) (citation and internal quotation
marks omitted). The government must prove the defendant knew the means of
identification belonged to a real person. Flores-Figueroa v. United States, 556
U.S. 646, 647, 129 S. Ct. 1886, 1888 (2009). “[T]he 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.” United States v. Gomez-
Castro, 605 F.3d 1245, 1249 (11th Cir. 2010).
“[A] defendant’s repeated and 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
(citing Gomez-Castro, 605 F.3d 1245; United States v. Holmes, 595 F.3d 1255
(11th Cir. 2010)). The government does not need to present evidence regarding a
government agency’s rigorous verification process. Gomez-Castro, 605 F.3d at
1249. A reasonable jury can infer, based on ordinary human experience and
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common sense, a defendant “knew at least that the federal and state governments
routinely obtain an applicant’s identity to verify the authenticity of that identity.”
Id.
In Holmes, we concluded facts and circumstances could have led a
reasonable jury to find the defendant knew the means of identification belonged to
a real person. Holmes, 595 F.3d at 1258 (concluding the combinations of facts
were “probative” of knowledge). There was sufficient circumstantial evidence
from which a reasonable jury could infer (1) the defendant knew the social security
card she misused belonged to a real person, (2) the defendant knew the birth
certificate and corresponding social security card she misused belonged to a real
person after she successfully used the birth certificate to obtain a passport, (3) the
defendant “knew, all along, that the social security card belonged to a real person
and was not a forgery,” and (4) the defendant “would not have sought credit using
[the victim’s] personal information if [she was] not confident that [the victim]
likely had an actual credit history.” Id. Similarly, in Doe, the defendant repeatedly
and successfully tested the identifying information, and a reasonable jury could
infer the identifying information would be subject to a detailed verification
process. We also strongly considered other “meaningful circumstantial indicia,”
including the defendant’s conduct during the application process, the defendant’s
application was signed under oath, and the defendant’s continuing with the
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application process after being subjected to increased scrutiny. Doe, 661 F.3d at
563-65.
The evidence showed Hope submitted D.L.’s social security card and birth
certificate to the Broward County DMV branch to obtain a learner’s permit, he
signed the learner’s permit application with D.L.’s identifying information under
penalty of perjury, he returned to the same DMV two days later and signed another
document with D.L.’s identifying information under penalty of perjury to obtain a
driver’s license, and the DMV subjects applicants’ means of identification to a
rigorous, multi-step verification process. Even without evidence of any “repeated
and successful” testing by Hope, the facts and circumstances in this case were
sufficient for a jury to infer knowledge. Hope submitted D.L.’s identifying
information to the DMV two times within two days to obtain two government-
issued documents, and the jury reasonably could have inferred Hope knew state
governments often request and retain detailed personal information to verify its
authenticity. Doe, 661 F.3d at 563-65; Gomez-Castro, 605 F.3d at 1249; Holmes,
595 F.3d at 1258. Viewing the evidence in the light most favorable to the
government and drawing all reasonable factual inferences in favor of the
factfinder’s verdict, the record supports a reasonable factfinder’s conclusion Hope
was guilty of aggravated identity theft beyond a reasonable doubt. Farley, 607
F.3d at 1333; Jiminez, 564 F.3d at 1284. We affirm Hope’s conviction.
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B. Upward Variance
We review the sentencing judge’s factual findings for clear error. United
States v. Glinton, 154 F.3d 1245, 1258-59 (11th Cir. 1998). A sentencing judge
may consider hearsay testimony but due process requires the defendant be given an
opportunity to refute the evidence, and the evidence bears minimal indicia of
reliability. United States v. Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989). The
evidence has sufficient indicia of reliability, when the indicia support the probable
accuracy of the matter asserted. United States v. Ghertler, 605 F.3d 1256, 1269
(11th Cir. 2010). Indicia of reliability include an oath, the defendant’s opportunity
to cross-examine, the factfinder’s opportunity to observe the declarant’s demeanor,
and other evidence corroborating or contradicting the statement. United States v.
Reme, 738 F.2d 1156, 1168 (11th Cir. 1984) (holding the district judge erroneously
imposed a sentence based on hearsay statements within a witness’s testimony,
where the hearsay statements demonstrated none of these indicia and the
statements were contradicted by testimony bearing various indicia of reliability).
Due process also requires the sentencing judge to make distinct findings regarding
the reliability of the hearsay evidence presented at sentencing, unless the reliability
is apparent from the record. United States v. Gordon, 231 F.3d 750, 761 (11th Cir.
2000). If the sentencing judge fails to state reliability findings, and the record does
not clearly show the reliability of the statement, we must vacate and remand the
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sentence for the judge to make reliability findings. United States v. Lee, 68 F.3d
1267, 1276 (11th Cir. 1995).
The district judge erred in basing his finding Hope was the leader of One
Order on hearsay statements, where the judge failed to make particularized
reliability findings, and the record does not clearly demonstrate their reliability.
The only evidence of Hope’s gang affiliation considered by the judge was
(1) statements in Deputy Samuel Blake’s affidavit and (2) Agent Cole’s testimony
two One Order gang members told him, while not under oath, Hope was the leader.
The judge explicitly relied upon this hearsay evidence in sentencing Hope and
concluded Hope’s crimes were more serious, given his gang affiliation in Jamaica
and his continued gang-related-criminal activity in the United States.
Although Hope had an opportunity to rebut the evidence, the judge made
only a blanket assertion Deputy Blake’s affidavit was reliable and failed to make
explicit findings of fact explaining why he found either the affidavit or the hearsay
statements in Agent Cole’s testimony to be reliable. Gordon, 231 F.3d at 761;
Giltner, 889 F.2d at 1007. Although distinct findings are not always required,
because the reliability of neither Deputy Blake’s affidavit nor the hearsay
statements in Agent Cole’s testimony is apparent from the record, they were
required in this case. Gordon, 231 F.3d at 761; Lee, 68 F.3d at 1276.
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The judge relied on Deputy Blake’s affidavit even after specifically stating
it had adequacy, specificity, and correctness problems, and after stating he was not
considering the affidavit’s supporting exhibits, because they were based on either
unknown sources of knowledge or repetitious information from police sources.
Deputy Blake’s statements under oath are insufficient, because most of Deputy
Blake’s findings as to Hope’s leadership of One Order were directly dependent on
or linked to the evidence the judge explicitly did not consider because of reliability
deficiencies. Reme, 738 F.2d at 1168. Nor was Agent Cole’s testimony Hope was
the gang’s leader sufficiently reliable, where his knowledge of that allegation was
based on the hearsay statements of the two One Order members and there are no
indicia of reliability supporting these hearsay statements. Giltner, 889 F.2d at
1007. The two One Order members’ statements were not given under oath, Hope
did not have an opportunity to cross-examine the members, the judge as factfinder
was not able to observe the gang members’ demeanor while they asserted Hope’s
leadership, and there is no other record evidence corroborating the veracity of these
statements. Gordon, 231 F.3d at 760-61; Reme, 738 F.2d at 1168.
Deputy Blake’s affidavit and the One Order members’ hearsay statements as
testified to by Agent Cole lack minimal indicia of reliability to have been
considered by the district judge. Giltner, 889 F.2d at 1007. Because the judge
failed to make explicit reliability findings, and the record does not clearly establish
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the reliability of the statements, we vacate Hope’s sentence and remand for further
reliability findings. 4 Lee, 68 F.3d at 1276.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
4
Because the resolution of the hearsay issue on remand may impact the variance, we do not
address the substance of Hope’s substantive reasonableness claim. See United States v. Estrada,
777 F.3d 1318, 1323 (11th Cir. 2015) (holding on resentencing, after vacating the defendant’s
sentence and remanding because of an incorrectly calculated Guidelines range, “the district court
shall consider all appropriate 18 U.S.C. § 3553(a) factors in determining a reasonable sentence”).
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