United States v. Landy Diaz , 437 F. App'x 207 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4305
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANDY DIAZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:07-cr-00003-gec-mfu-1)
Submitted: June 17, 2011 Decided: July 1, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Allegra M. C. Black,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, Jean B. Hudson,
Assistant United States Attorney, J. Wells Harrell, Third Year
Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case arose out of a series of fraudulent credit
card and debit card transactions using credit and debit card
numbers stolen from restaurant and retail store customers via an
electronic skimming device. A jury convicted Landy Diaz (Diaz)
of one count of conspiracy to possess fifteen or more
unauthorized access devices with intent to defraud, in violation
of 18 U.S.C. § 371, one count of possession of fifteen or more
unauthorized access devices with intent to defraud, in violation
of 18 U.S.C. § 1029(a)(1), one count of possession of access
device making equipment with intent to defraud, in violation of
18 U.S.C. § 1029(a)(4), and three counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). Additionally,
Diaz pleaded guilty to one count of using one or more
counterfeit access devices with intent to defraud, in violation
of 18 U.S.C. § 1029(a)(1).
On appeal, Diaz only challenges his convictions on the
three counts of aggravated identity theft. The aggravated
identity theft statute imposes a mandatory consecutive two-year
prison term upon “[w]hoever, during and in relation to any
felony violation” of certain predicate crimes (e.g., fraud and
related activity in connection with access devices, in violation
of 18 U.S.C. § 1029(a)(1)), “knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of
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another person . . . .” 18 U.S.C. § 1028A(a)(1). Diaz argues
that his three aggravated identity theft convictions should be
vacated and his case remanded for a new trial on those counts,
because the district court did not specifically instruct the
jury that, in order to convict him of aggravated identity theft,
the government bore the burden of proving beyond a reasonable
doubt that he knew the means of identification at issue, in
fact, belonged to another person. According to Diaz, he was
entitled to such an instruction under Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009). See id. at 1894 (“We conclude
that § 1028A(a)(1) requires the Government to show that the
defendant knew that the means of identification at issue
belonged to another person.”). Diaz also points out that, at
the time of his trial in this case, Fourth Circuit precedent
expressly held that § 1028A(a)(1)’s knowledge requirement did
not apply to the phrase “of another person.” See United States
v. Montejo, 442 F.3d 213, 217 (4th Cir. 2006) (holding
“defendant need not be aware of the actual assignment of the
numbers to an individual to have violated [§ 1028A(a)(1)]”).
Because Diaz did not request an instruction
specifically stating that, in order to convict him of aggravated
identity theft, the government bore the burden of proving beyond
a reasonable doubt that he knew the means of identification at
issue belonged to another person, we review the district court’s
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failure to give such an instruction for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732
(1993). Under the plain error test set forth in Olano, Diaz
must initially establish: (1) there was error; (2) the error was
plain; and (3) the error affected his substantial rights.
Olano, 507 U.S. at 732. Even if Diaz establishes each of these
three prongs, Olano requires that before we may exercise our
discretion to correct the error, we must be convinced that the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks omitted) (alteration in original).
Reviewing the record below, including the jury
instructions as to the aggravated identity theft counts and the
evidence presented at trial, we conclude that Diaz has failed to
establish he is entitled to appellate relief with respect to his
three convictions for aggravated identity theft. Assuming
arguendo that Diaz can establish the first two prongs of Olano’s
plain error test, as the government concedes he has, Diaz has
not carried his burden of establishing Olano’s third prong,
i.e., that his substantial rights were affected. Id.Specifically, Diaz has not carried his burden of
establishing that the district court’s failure to instruct the
jury that, in order to convict him of aggravated identity theft,
the government bore the burden of proving beyond a reasonable
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doubt that he knew the means of identification at issue belonged
to another person affected his substantial rights. Although, at
the time of Diaz’s trial in this case, Fourth Circuit precedent
expressly held that § 1028A(a)(1)’s knowledge requirement did
not apply to “of another person,” id.; see Montejo, 442 F.3d at
217-18, the district court did not so instruct the jury. In
fact, the district court’s instructions on the aggravated
identity theft counts simply tracked § 1028A(a)(1)’s statutory
language, which language left ample room for the jury to have
made the very finding Diaz claims the jury needed to make in
order to convict him of aggravated identity theft. Cf. Flores-
Figueroa v. United States, 129 S. Ct. at 1890 (“In ordinary
English, where a transitive verb has an object, listeners in
most contexts assume that an adverb (such as knowingly) that
modifies the transitive verb tells the listener how the subject
performed the entire action, including the object as set forth
in the sentence.”). Thus, Diaz cannot establish that the jury
actually convicted him based upon an erroneous understanding of
§ 1028A(a)(1)’s knowledge requirement, which he needed to do in
order to establish that his substantial rights were affected by
the alleged error. See United States v. Hastings, 134 F.3d 235,
243-44 (4th Cir. 1998) (under Olano’s third prong of plain error
test, defendant bears the burden of establishing error actually
resulted in his conviction).
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Finally, assuming arguendo that Diaz can establish the
first three prongs of Olano’s plain error test, we would decline
to exercise our discretion to correct the error. The record
establishes that the evidence presented to the jury showing that
Diaz knew that the means of identification at issue with respect
to his aggravated identity theft convictions belonged to another
person was overwhelming and uncontroverted. Accordingly, the
district court’s failure to give the instruction at issue does
not seriously affect the fairness, integrity or public
reputation of judicial proceedings. See Johnson v. United
States, 520 U.S. 461, 470 (1997) (no basis for concluding error
in failing to submit element of offense to jury seriously
affected fairness, integrity or public reputation of judicial
proceedings, because evidence in support of such element was
overwhelming and essentially uncontroverted).
For the foregoing reasons, we affirm the judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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