United States v. Ionel Muresanu ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3690
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IONEL MURESANU,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 18-CR-129-JPS — J.P. Stadtmueller, Judge.
____________________
ARGUED SEPTEMBER 6, 2019 — DECIDED MARCH 3, 2020
____________________
Before FLAUM, SYKES, and ST. EVE, Circuit Judges.
SYKES, Circuit Judge. Ionel Muresanu was arrested in
Wisconsin for his role in a multistate ATM skimming opera-
tion. A grand jury charged him with four crimes: possession
of counterfeit access devices and three counts of aggravated
identity theft. The identity-theft charges were legally defec-
tive. The indictment alleged that Muresanu attempted to
commit aggravated identity theft, but there is no such
2 No. 18-3690
federal crime; the statutory definition of aggravated identity
theft doesn’t cover attempts.
Muresanu’s attorney did not object to the defective in-
dictment in a pretrial motion under Rule 12(b)(3) of the
Federal Rules of Criminal Procedure. Instead, he strategical-
ly waited until trial and moved for acquittal on the identity-
theft counts after the government rested its case. The district
judge denied the motion, ruling that Muresanu waived the
objection by failing to raise the matter in a Rule 12(b)(3)
motion.
The judge then deleted the attempt language from the
jury instructions and instructed the jury on the elements of
the completed crime. The modified instruction conformed to
the statutory offense but varied from the charges in the
indictment. The evidence overwhelmingly supported con-
viction on the reformulated charges, and the jury found
Muresanu guilty on all counts. The judge imposed a prison
sentence of 34 months on count one and the mandatory
24-month sentence on each of the three identity-theft counts,
consecutive to count one but concurrent to the other
identity-theft counts.
Muresanu raises two challenges to the identity-theft con-
victions. First, he argues that the defect in the indictment—
its failure to charge an actual federal offense—deprived the
court of jurisdiction over these counts. Second, he argues
that the judge’s “cure” for the defect—instructing the jury on
the completed crime rather than an attempt—violated his
Fifth Amendment right to be tried only on charges contained
in the grand jury’s indictment. He also challenges his sen-
tence on count one for possession of counterfeit access
devices.
No. 18-3690 3
We affirm in part and reverse in part. The judge correctly
applied the Sentencing Guidelines to count one, so that
challenge fails. Counts two through four are another matter.
Defects in the indictment are not jurisdictional, United States
v. Cotton, 535 U.S. 625, 631 (2002), and under Rule 12(b)(3)
they must be raised by pretrial motion, as the judge correctly
recognized. But the modification of the jury instructions led
the jury to convict Muresanu of crimes not charged by the
grand jury, violating his Fifth Amendment right to be tried
only on charges brought by indictment. That category of
error is per se reversible. Stirone v. United States, 361 U.S. 212,
217 (1960). We have no choice but to vacate the judgment on
counts two through four and remand for resentencing on
count one alone.
I. Background
In 2017 Muresanu began participating in an ATM skim-
ming scheme run by a man known to him only as Vidu.
Muresanu was then 17 years old and had recently arrived in
this country from his native Romania. The skimming scheme
generally operated in this way: Vidu provided Muresanu
and other participants with skimming devices and pinhole
cameras to place in and on ATMs. The skimmers recorded
the account information of the ATM cards inserted into the
machines; the cameras recorded user PINs. For months
Muresanu and others—including his 16-year-old cousin
Florin—placed and removed these devices on ATMs in
Nashville, Atlanta, Kansas City, Louisville, and St. Louis,
collecting card-stripe information and PINs. Muresanu
passed this information to Vidu, who used it to create coun-
terfeit debit cards and drain money from the original card-
holders’ bank accounts. Vidu gave Muresanu 25% of the
4 No. 18-3690
proceeds from each batch of counterfeit ATM cards.
Muresanu, in turn, paid his younger cousin Florin from his
share of the proceeds.
Muresanu’s participation came to a halt in May 2018
when he was arrested in Oshkosh, Wisconsin. By then he
had turned 18. On May 18 Oshkosh police were alerted to
suspicious activity by people in a white van with Tennessee
plates. Detective April Hinke located the van and followed it
from a motel to a convenience store. There Hinke and other
officers observed Muresanu and two minors—his cousin
Florin and a teenager named Surdo—use one debit card after
another at the store’s ATM. The officers arrested the three
young thieves and recovered 100 counterfeit ATM cards in
their possession. Muresanu was given Miranda warnings and
agreed to talk to the officers. He gave them detailed written
and recorded statements confessing his involvement in the
skimming scheme.
A grand jury returned a four-count indictment charging
Muresanu with possessing 15 or more counterfeit access
devices in violation of 18 U.S.C. § 1029(a)(3) and three counts
of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). Although the statutory definition of aggravat-
ed identity theft does not cover attempts, counts two
through four of the indictment alleged that Muresanu “did
knowingly attempt to transfer, possess, and use, without
lawful authority, a means of identification … , knowing that
said means of identification belonged to another person.”
(Emphasis added.)
The judge set a deadline for pretrial motions, but the date
came and went without a defense motion under
Rule 12(b)(3) objecting to the defective indictment. As the
No. 18-3690 5
trial date approached, the judge distributed a copy of the
jury instructions he planned to use at trial. As relevant here,
the proposed instructions tracked the indictment: regarding
counts two through four, the instructions described the
charged offense as attempted aggravated identity theft and
included an instruction on attempt.
Muresanu’s attorney contested little of the government’s
case at trial. He made no opening statement and declined to
cross-examine five of the government’s nine witnesses. His
cross-examination of the remaining witnesses was light and
brief. When the government rested its case, Muresanu’s
attorney moved for judgment of acquittal on counts two
through four; at that point the defense strategy became clear.
Counsel explained that because attempted identity theft, as
charged in the indictment, is not a federal crime, no rational
jury could return a verdict of guilty on those counts. The
judge denied the motion, ruling that the defect in the in-
dictment should have been raised by pretrial motion as
Rule 12(b)(3) requires.
That left a dilemma about how to submit the case to the
jury. The government argued that the “attempt” language in
the indictment was surplusage and asked the judge to strike
it. Muresanu objected, and the judge declined to adopt the
government’s suggested fix. Instead, the judge modified the
jury instructions to remove all references to “attempt.”
Muresanu objected to this remedy as well, but the judge
overruled the objection. The final jury instructions thus
reframed the offenses charged in counts two through four as
completed acts of aggravated identity theft—not attempts, as
charged in the indictment. The jury found Muresanu guilty
on all four counts.
6 No. 18-3690
Muresanu filed posttrial motions seeking various forms
of relief on counts two through four: judgment of acquittal
under Rule 29, an arrest of judgment under Rule 34, or a
new trial under Rule 33. FED. R. CRIM. P. 29, 33, 34. He ar-
gued that the judge impermissibly amended the indictment
by reformulating counts two through four as completed acts
of aggravated identity theft and instructing the jury on the
elements of that crime. The judge denied relief, again noting
that Muresanu waived the defect in the indictment by failing
to raise it by pretrial motion under Rule 12(b)(3). The judge
also reasoned that the modified jury instructions altered
only the form of the indictment, not its substance, and
Muresanu suffered no prejudice.
At sentencing Muresanu challenged several aspects of
the proposed offense-level calculation for count one, the
conviction for possession of counterfeit access devices. The
presentence report recommended a two-level enhancement
for use of sophisticated means, U.S.S.G. § 2B1.1(b)(10)(C); a
two-level enhancement for Muresanu’s supervisory role in
the offense, id. § 3B1.1; and a two-level enhancement for
using a minor to assist in the crime, id. § 3B1.4. Muresanu
objected to all three enhancements. He also argued that he
was only a minor participant in the offense, justifying a two-
level downward adjustment under § 3B1.2. The judge over-
ruled the objections, denied the minor-role reduction, and
adopted the proposed Guidelines calculation.
That calculation yielded an advisory sentencing range of
51–63 months on count one. The identity-theft counts carried
an automatic 24-month sentence consecutive to count one as
required by § 1028A(a)(1) and (b)(2). The judge settled on a
below-Guidelines sentence of 34 months on count one,
No. 18-3690 7
followed by the statutory consecutive sentence of 24 months
on each of the identity-theft counts. Exercising the discretion
conferred by § 1028A(b)(4), the judge ordered the three
24-month terms on the identity-theft counts to run concur-
rently for a total sentence of 58 months.
II. Discussion
Muresanu raises three points on appeal. First, he argues
that the defect in the indictment—accusing him of attempted
aggravated identity theft, a “noncrime”—deprived the court
of subject-matter jurisdiction over counts two through four.
Alternatively, he contends that the judge’s alteration of the
jury instructions led the jury to convict him of offenses not
charged in the indictment, violating his Fifth Amendment
right to be tried only on charges issued by a grand jury.
Finally, he challenges his sentence on count one, reprising
his objection to the three Guidelines enhancements men-
tioned above.
A. Jurisdiction
We review jurisdictional questions de novo. See United
States v. Rollins, 301 F.3d 511, 517 (7th Cir. 2002). The federal
criminal code does not contain a general attempt statute;
attempts to commit a crime are punishable only if the statu-
tory definition of the crime itself proscribes attempts. United
States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985). Many
federal criminal statutes expressly cover attempts, but the
one at issue here does not. Section 1028A(a)(1) mandates a
24-month consecutive prison sentence for anyone who
“during and in relation to [a specified felony offense], know-
ingly transfers, possesses, or uses, without lawful authority,
a means of identification of another person.” 18 U.S.C.
8 No. 18-3690
§ 1028A(a)(1). Attempts to commit the crime are not includ-
ed.
Nonetheless, counts two through four of the indictment
inexplicably alleged that Muresanu attempted to commit acts
constituting aggravated identity theft. He argued below and
reiterates here that this type of defect in an indictment—the
failure to allege an actual federal offense—is jurisdictional.
The Supreme Court’s decision in Cotton controls this
question. The defect at issue in Cotton arose under Apprendi.
A grand jury indicted the defendants for conspiracy to
distribute a “detectable amount” of cocaine and cocaine
base, but the indictment did not contain specific drug-
quantity allegations. Cotton, 535 U.S. at 627–28. A jury found
the defendants guilty, and at sentencing the judge made
drug-quantity findings and imposed enhanced penalties
under the statutory scheme specifying longer prison terms
for offenses involving larger drug quantities. Id. at 628.
While the defendants’ appeal was pending, the Court ruled
in Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), that any
fact that increases the statutory penalty must be charged in
the indictment, submitted to the jury, and proved beyond a
reasonable doubt.
Although the defendants had not preserved an Apprendi-
like argument in the district court, the court of appeals held
that the defect in the indictment—its failure to allege drug
quantities as required by Apprendi—was jurisdictional and
thus could not be waived. Cotton, 535 U.S. at 629. The
Supreme Court reversed, holding that “a defective indict-
ment” does not “deprive[] a court of jurisdiction.” Id. at 631
(overruling Ex parte Bain, 121 U.S. 1 (1887)).
No. 18-3690 9
The circuits are split on the proper interpretation of
Cotton. The Eleventh Circuit reads the Court’s holding as
limited to defective indictments that omit necessary allega-
tions but nonetheless charge some federal crime. United States
v. McIntosh, 704 F.3d 894, 901–03 (11th Cir. 2013). On this
view, the rule announced in Cotton does not apply if an
indictment fails to allege any federal crime at all. Id. The
Fifth and Tenth Circuits read Cotton more broadly, applying
it even when an indictment fails to state an offense; on this
view, defects in an indictment—of whatever kind—are not
jurisdictional. United States v. De Vaughn, 694 F.3d 1141, 1148–
49 (10th Cir. 2012); United States v. Cothran, 302 F.3d 279, 283
(5th Cir. 2002).
We think the Fifth and Tenth Circuits have the better
reading. Cotton used general language, broadly holding that
“defects in an indictment do not deprive a court of its power
to adjudicate a case.” 535 U.S. at 630. The Eleventh Circuit’s
narrow interpretation is hard to reconcile with this expan-
sive language. It also doesn’t fit well with the Court’s reason-
ing. Cotton relied in part on Lamar v. United States, 240 U.S. 60
(1916). In that case the defendant was charged with imper-
sonating an officer of the United States with intent to de-
fraud; the indictment alleged that he falsely held himself out
to be a congressman. Id. at 64. The defendant argued that
because a congressman is not an officer of the United States,
the indictment did not charge an actual federal offense, and
this defect deprived the court of jurisdiction. Id. The Court
disagreed, ruling that subject-matter jurisdiction was unaf-
fected by the defect in the indictment. Rather, “[an] objection
that the indictment does not charge a crime against the
United States goes only to the merits of the case.” Id. at 65.
10 No. 18-3690
Cotton also relied on United States v. Williams, 341 U.S. 58
(1951), another case that similarly dealt with a contention
that the conduct alleged in an indictment was not covered by
the relevant criminal statute. The Williams defendants were
police officers convicted of perjury for giving false testimony
at their criminal trial on charges of conspiring to oppress
persons in their custody in the exercise of rights secured to
them by the Fourteenth Amendment, violating 18 U.S.C.
§ 241. Id. at 58–59. On direct appeal from the judgment in the
underlying conspiracy prosecution, the court of appeals
reversed the convictions and quashed the indictment, ruling
that § 241 “d[oes] not apply to the general rights extended to
all persons by the Fourteenth Amendment.” Id. at 58. The
defendants then challenged their perjury convictions, argu-
ing that the defect in the § 241 indictment meant that the
court in the earlier case lacked jurisdiction; and this, in turn,
meant that they could not be convicted of perjuring them-
selves at the conspiracy trial. The Court rejected this argu-
ment, reaffirming that even when the indictment fails to
state an offense, the court is not deprived of jurisdiction:
“Though the trial court or an appellate court may conclude
that … the facts stated in the indictment do not constitute a
crime … , it has proceeded with jurisdiction[,] and false
testimony before it under oath is perjury.” Id. at 68–69.
Lamar and Williams support the Fifth and Tenth Circuits’
broader understanding of the rule announced in Cotton:
defects in an indictment do not deprive the court of subject-
matter jurisdiction, and this is so even when the defect is a
failure to state a federal offense. See De Vaughn, 694 F.3d at
1148–49. Because indictment defects go to the merits of the
case—not the court’s power to hear it—an objection to a
defective indictment may be waived.
No. 18-3690 11
Under Rule 12(b)(3)(B) an objection to “a defect in the in-
dictment” must be made “by pretrial motion.” The rule
contains an illustrative list of defects that are subject to this
requirement; the list expressly includes “failure to state an
offense.” FED. R. CRIM. P. 12(b)(3)(B)(v). So the district judge
correctly held that Muresanu waived his objection to the
defective indictment by failing to raise the matter in a
Rule 12(b)(3) motion.
B. Fifth Amendment Grand Jury Right
The Fifth Amendment guarantees the right of an accused
to be tried only on charges in an indictment returned by a
grand jury. Stirone, 361 U.S. at 215. Altering an indictment
without the approval of the grand jury “is per se reversible
error.” United States v. Galiffa, 734 F.2d 306, 311 (7th Cir. 1984)
(emphasis omitted); see also Stirone, 361 U.S. at 217 (“Depri-
vation of such a basic right is far too serious to be treated as
nothing more than a variance and then dismissed as harm-
less error.”).
Muresanu argues that the judge’s “cure” for the defective
indictment—removing the “attempt” language from the jury
instructions on counts two through four—led the jury to
convict him of crimes not charged by the grand jury and
therefore violated his right to be tried only on charges
contained in the indictment. The government responds that
the judge’s modification of the jury instructions amounted to
a permissible variance of the indictment. Permissible vari-
ances come in two varieties. The first are variations “that are
merely a matter of form,” such as correcting a “typograph-
ical or clerical error or a misnomer.” United States v.
Leichtnam, 948 F.2d 370, 376 (7th Cir. 1991). The second are
12 No. 18-3690
variations that narrow the indictment to either fewer offens-
es or to lesser-included offenses. Id.
The modification at issue here neither corrected an error
of form nor narrowed the indictment. The judge altered the
substance of the indictment by changing the offense charged
in counts two through four from an attempt to a completed
crime of aggravated identity theft—hardly a narrowing of the
indictment. It was instead an impermissible variance.
The government falls back on waiver, attacking
Muresanu’s defense strategy of bypassing a Rule 12(b)(3)
motion and waiting to raise the defective indictment at trial
after jeopardy attached and the prosecution had rested its
case. We’ve just explained why this litigation strategy
waived a challenge to the defective indictment. It did not,
however, waive Muresanu’s right to object to the modified
jury instructions that led the jury to convict him of crimes
not charged in the indictment. He did in fact object, so the
Fifth Amendment error is preserved. And under Stirone
prejudice is presumed. 361 U.S. at 215.
We recognize that rewarding Muresanu’s strategy of
omitting a pretrial motion is contrary to the important policy
considerations underlying Rule 12. The requirement that a
defendant litigate indictment defects by pretrial motion
“permits the United States to appeal from an order that,
because of the Double Jeopardy Clause, cannot be appealed
after trial.” United States v. Nixon, 901 F.3d 918, 921 (7th Cir.
2018). Moreover, it “permits the parties to brief the issue
with care, rather than address [the] … issue on the fly” when
it is raised midtrial. Id. And “[i]t prevents game playing.” Id.
No. 18-3690 13
Muresanu’s defense strategy thwarted these purposes,
allowing him to “enjoy a trial that [he could] win but not
lose.” Id. Still, under Stirone the constitutional error is cate-
gorically prejudicial, and the required remedy is to vacate
the judgment on counts two through four.
C. Sentencing Enhancements on Count One
That leaves count one. Muresanu’s conviction for posses-
sion of counterfeit access devices is unaltered by the consti-
tutional error infecting the convictions for aggravated
identity theft. Muresanu reiterates his challenge to the
application of three offense-level enhancements under the
Sentencing Guidelines: one for using a sophisticated means
to commit the crime, another for his supervisory role in the
offense, and a third for using a minor in the scheme. We
review for clear error. United States v. Wayland, 549 F.3d 526,
528 (7th Cir. 2008).
A two-level enhancement applies if the offense involved
“sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). Applica-
tion of this enhancement has ample support in the trial
evidence. The scheme involved sophisticated equipment—
ATM skimmers and pinhole cameras—and installing these
devices without being detected took some skill. Moreover, to
disguise his identity, Muresanu changed his clothes and
hairstyle as he moved from location to location. And when
Muresanu received counterfeit bank cards from Vidu, he
waited a period of time before using those cards so the
victims would have a harder time identifying the ATMs
Muresanu had compromised. The judge properly applied
this enhancement.
14 No. 18-3690
Muresanu insists that the sophisticated-means enhance-
ment cannot apply because he was not the architect of the
scheme. This argument raises a legal question. The
sophisticated-means enhancement is appropriate when “the
defendant intentionally engaged in or caused the conduct
constituting sophisticated means.” Id. § 2B1.1(b)(10)(C).
Nothing in this language limits application of the enhance-
ment to only the mastermind of the scheme. Rather, the
enhancement applies when the defendant “engaged in” or
“caused” the relevant conduct—here, ATM skimming—
using sophisticated means.
Muresanu also challenges the judge’s application of an
offense-level enhancement under § 3B1.1 to account for his
aggravated role in the offense and the related rejection of his
request for a minor-role reduction under § 3B1.2. A two-level
enhancement applies if the defendant was an “organizer,
leader, manager, or supervisor of one or more other partici-
pants.” Id. § 3B1.1 n.2. “Orchestrating or coordinating activi-
ties performed by others makes a particular defendant a
manager or supervisor.” United States v. Martinez, 520 F.3d
749, 752 (7th Cir. 2008).
The uncontested evidence established that Muresanu su-
pervised his minor cousin Florin in this months-long skim-
ming scheme, paying him from the share of the proceeds he
received from Vidu. The judge properly relied on this evi-
dence to support the supervisory-role enhancement, and
correspondingly, to reject Muresanu’s request for a minor-
role reduction.
Finally, Muresanu challenges the application of the en-
hancement for using a minor to commit a crime. See U.S.S.G.
§ 3B1.4. Muresanu argues that the enhancement applies only
No. 18-3690 15
to adults who used a minor; he was himself a minor for part
of the scheme. We do not need to decide if this interpretation
of § 3B1.4 is correct. Muresanu was 18 when he was arrested
and at the time was continuing to supervise Florin in the
commission of the offense. The judge correctly applied this
enhancement.
AFFIRMED in part, VACATED in part, and REMANDED.