United States v. Steven Ehrlich

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16343 ELEVENTH CIRCUIT
JUNE 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-20202-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN EHRLICH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 23, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
This is Steven Ehrlich’s second appeal of his conviction for aggravated
identity theft committed in connection with the predicate crime of access device
fraud, in violation of 18 U.S.C. §§ 1028A(a)(1) and 1029(a)(2). In his earlier
appeal, we vacated Ehrlich’s conviction for aggravated identity theft and remanded
the case for the district court to determine, in light of Flores-Figueroa v. United
States, 556 U.S. ___, ___, 129 S. Ct. 1886, 1888-89 (2009), whether Ehrlich knew
that the identification he used belonged to another person. See United States v.
Ehrlich, 334 F. App’x. 216, 217 (11th Cir. 2009) (“Ehrlich I”). On remand, the
district court, at a bench trial, determined that the stipulated facts established the
requisite knowledge element, and re-adjudicated Ehrlich guilty of aggravated
identity theft under § 1028A(a)(1). On appeal, Ehrlich makes the following two
arguments: (1) the district court erred by failing to dismiss sua sponte his
§ 1028A(a)(1) charge because the government waived its opportunity to prove the
knowledge element by failing to argue, at the first bench trial, that the stipulated
facts established that element; and (2) evidence presented at the trial on remand
was insufficient to establish the knowledge element.
I.
Ehrlich first argues that the government waived the opportunity to prove the
knowledge element for aggravated identity theft under 18 U.S.C. § 1028A(a)(1).
The basis for that waiver, according to Ehrlich, is the fact that the government did
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not argue at the first bench trial that the stipulated facts established the knowledge
element. Ehrlich does not assert that this court’s mandate in Ehrlich I was
unlawful, but rather, he contends that the mandate did not address, and therefore
did not supplant, the doctrine of waiver. Finally, while he concedes that he did not
raise before the district court his arguments concerning waiver, he contends that
the district court, on remand, nevertheless committed plain error by not sua sponte
dismissing the § 1028A(a)(1) charge on the basis of waiver.
We review de novo the district court’s compliance with our mandate. United
States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). “The mandate rule is simply
an application of the law of the case doctrine,” that “operates to create efficiency,
finality, and obedience within the judicial system so that an appellate decision
binds all subsequent proceedings in the same case.” Id. at 829-30 (internal
quotation marks and alterations omitted).
“Accordingly, when acting under an appellate court’s mandate, a district
court cannot vary it, or examine it for any other purpose than execution; or give
any other or further relief; or review it, even for apparent error, upon a matter
decided on appeal; or intermeddle with it, further than to settle so much as has been
remanded.” Id. at 830 (internal quotation marks omitted). Finally, “[t]his court
has recognized three exceptions to the mandate rule: (1) a subsequent trial
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produces substantially different evidence, (2) controlling authority has since made
a contrary decision of law applicable to that issue, or (3) the prior appellate
decision was clearly erroneous and would work manifest injustice.” Id. (internal
quotation marks and alteration omitted).
In this case, we conclude that the mandate rule forecloses Ehrlich’s
arguments concerning waiver. Specifically, our mandate in Ehrlich I, directing the
district court to determine whether the stipulated facts established the knowledge
element required to sustain Ehrlich’s conviction under § 1028A(a)(1), effectively
gave the government another opportunity to prove that element. Accordingly,
Ehrlich’s true bone of contention is not with the district court’s undertakings on
remand, but rather with our mandate in Ehrlich I. Ehrlich does not, and cannot,
challenge this mandate on appeal. Further, we conclude that none of Ehrlich’s
other arguments on appeal concerning this issue have merit.
II.
On the merits, Ehrlich argues that the evidence was insufficient as a matter
of law to prove the knowledge element for his conviction under 18 U.S.C.
§ 1028A(a)(1). Specifically, he asserts that, under Flores-Figueroa v. United
States, the government, in order to prove the knowledge element circumstantially,
needed to provide evidence of the manner in which he obtained his victim’s
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identification information. Additionally, he asserts that the district court’s finding
of the knowledge element based on his use of the victim’s identification to obtain
various lines of credit amounted to speculation because a person successfully may
obtain credit based on a completely fictitious identity. Finally, he attempts to
distinguish United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), on the ground
that, in that case, the defendant, over a period of years, submitted the victim’s
identification information to rigorous governmental verification processes. Id. at
1257.
We review de novo the sufficiency of the evidence to uphold a conviction.
See United States v. Tampas, 493 F.3d 1291, 1297 (11th Cir. 2007). “We will not
reverse a conviction for insufficient evidence in a non-jury trial unless, upon
reviewing the evidence in the light most favorable to the government, no
reasonable trier of fact could find guilt beyond a reasonable doubt.” United States
v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991). Additionally, “[t]he
evidence may be sufficient even if it does not exclude every reasonable hypothesis
of innocence.” Id.To establish a violation of § 1028A(a)(1), “the government must prove that
the defendant: (1) knowingly transferred, possessed, or used; (2) the means of
identification of another person; (3) without lawful authority; (4) during and in
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relation to a felony enumerated in § 1028A(c).” United States v. Hurtado, 508
F.3d 603, 606-07 (11th Cir. 2007) (footnote omitted), abrogated on other grounds
by Flores-Figueroa, 556 U.S. ___, 129 S. Ct. 1886. Moreover, in
Flores-Figueroa, the Supreme Court held that Ҥ 1028A(a)(1) requires the
Government to show that the defendant knew that the means of identification at
issue belonged to another person.” 556 U.S. at ___, 129 S. Ct. at 1894.
In Holmes, we gave some guidance as to proof of the knowledge element. In
that case, evidence at trial showed, among other things, that the defendant used the
victim’s identification information to obtain a line of credit to purchase a car. 595
F.3d at 1256-57. Reviewing Holmes’s sufficiency-of-the-evidence challenge as to
the knowledge element, we held, 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. at 1258.
Additionally, in United States v. Gomez-Castro, we clarified that Holmes
“establishes 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.” ___ F.3d ___, ___, No. 09-12557 (11th Cir. May 13,
2010). Further, we noted that Flores-Figueroa’s discussion of the ease of proving
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the knowledge element based on evidence of how the defendant obtained the
victim’s identification information “does not foreclose the possibility of proving
knowledge in a more difficult case.” Id. at ___.
Here, we conclude from the record that sufficient evidence supported the
district court’s finding concerning the knowledge element. Notably, the stipulated
facts established that Ehrlich successfully used his victim’s identification to obtain
fairly large amounts of credit on various occasions.
For the above-stated reasons, we affirm Ehrlich’s conviction.
AFFIRMED.
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