United States v. Governor Reiss, Sr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 27, 2008
No. 07-11748
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00152 CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GOVERNOR REISS, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Alabama
(May 27, 2008)
Before DUBINA and BARKETT, Circuit Judges, SCHLESINGER,* District
Judge.
________________________
*Honorable Harvey E. Schlesinger, United States Judge for the Middle District of Florida, sitting
by designation.
PER CURIAM:
Appellant, Governor Reiss, Sr. (“Reiss”), appeals his convictions on two
counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
The issue presented on appeal is whether the district court properly denied
Reiss’s motion for judgment of acquittal because the Government’s showing that
Reiss listed his ex-wife’s name on an application for disaster funds from FEMA
for property he no longer owned was sufficient to show “without lawful authority”
and “during and in relation to” two underlying felonies – theft of public money
and wire fraud – in order to convict him of aggravated identity theft under 18
U.S.C. § 1028A(a)(1).
This court reviews de novo a district court’s denial of a motion for judgment
of acquittal. United States v. Ward, 486 F.3d 1212, 1220 (11th Cir.), cert. denied,
128 S. Ct. 398 (2007). In considering a motion for judgment of acquittal, “we
examine the evidence in a light most favorable to the jury verdict.” Id. at 1220-21.
We also review de novo questions of statutory interpretation. United States v.
Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007).
When the plain language of a statute is ambiguous or leads to absurd results,
we may consult legislative history to discern congressional intent. See United
States v. McNab, 331 F.3d 1228, 1236 (11th Cir. 2003). However, when a statute
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is unambiguous, review of the legislative history is unnecessary, and the rule of
lenity does not apply. United States v. Maturin, 499 F.3d 1243, 1246 (11th Cir.
2007).
After reviewing the record, reading the parties’ briefs and having the benefit
of oral argument, we affirm the judgments of conviction on Counts 7 and 8 of the
indictment. The unambiguous purpose of § 1028(A)(a)(1) is to provide for
additional punishment for a defendant who, during the course of committing
another felony offense, unlawfully uses a means of identification of another
person. As such, the unlawful use of another person’s identity when committing
the other offense “aggravates” that other felony offense, warranting additional
punishment. In our view, § 1028(A)(a)(1) is very similar to 18 U.S.C. § 924(c)(1),
the use and carrying of a firearm during and in relation to a drug offense. In
United States v. Frye, 402 F.3d 1123 (11th Cir. 2005), we stated that
[b]y its plain language, section 924 does not require that a defendant
be convicted of, or even be charged with, the predicate offense to be
found guilty of using or carrying a firearm in relation to the predicate
offense. Section 924(c) requires only that the drug trafficking crime
be one that ‘may be prosecuted.’
Id. at 1127. (Emphasis added). Thus, section 924(c) provides for additional
punishment for a drug offense which, alone, is not concerned with gun possession.
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Similarly, § 1028A(a)(1) provides for additional punishment for a felony offense
which, alone, is not concerned with identity theft.
For the above-stated reasons, we affirm the convictions on Counts 7 and 8.
AFFIRMED.
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