Petition for Writ of Certiorari — Branden Tyler, Petitioner v. United States

Supreme Court briefMar 25, 2024

Ask Donna

What actually matters in this document.

Text

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRANDEN TYLER,

Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

2023 U.S. App. LEXIS 34431

No. 22-12385 Non-Argument Calendar

December 28, 2023, Filed

Notice:

PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING

THE CITATION TO UNPUBLISHED OPINIONS.

Editorial Information: Prior History

{2023 U.S. App. LEXIS 1}Appeal from the United States District Court for the Southern District of

Florida. D.C. Docket No. 0:21-cr-60227-RS-1.

Disposition:

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Robert Craig

Juman, USAO, MIAMI, FL; Laura Thomas Rivero, Lisa Tobin Rubio, U.S. Attorney Service Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL.

For BRANDEN TYLER, Defendant - Appellant: Anshu Budhrani,

Michael Caruso, Federal Public Defender's Office, MIAMI, FL; Lawrence A. Hashish, Law

Office of Lawrence A. Hashish, PA, FORT LAUDERDALE, FL; John A. Weekes Jr., Weekes

& Weekes, FORT LAUDERDALE, FL.

Judges: Before LAGOA, BRASHER, and ABUDU, Circuit Judges.

Counsel

CASE SUMMARYEvidence presented at trial was sufficient to find that defendant used one or more

unauthorized devices in violation of 18 U.S.C.S. § 1029(a)(2), including that the jury could reasonably

conclude that defendant lived at the address searched and had possession over the bedroom where all

the evidence was found.

OVERVIEW: HOLDINGS: [1]-Evidence presented at trial was sufficient to find that defendant used one

or more unauthorized devices in violation of 18 U.S.C.S. § 1029(a)(2), including that the jury could

reasonably conclude that defendant lived at the address searched and had possession over the bedroom

where all the evidence was found; [2]-There was sufficient evidence to support defendant's conviction for

aggravated identity theft because the evidenced showed that the identity theft victim was a real person;

[3]-The district court did not commit plain error as there was sufficient evidence to support defendant's

conviction for possession of 15 or more unauthorized access devices, as neither the statute nor binding

precedent required proof of the usability of the devices.

OUTCOME: Convictions affirmed.

LexisNexis Headnotes

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

Criminal Law & Procedure > Accessories > Aiding & Abetting

Finding a defendant criminally responsible for the acts of another person requires proof that the

defendant intentionally associated with or participated in the crime, not just proof that the defendant was

simply present at the scene of a crime or knew about it.

Evidence > Procedural Considerations > Weight & Sufficiency

Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Sufficiency of

Evidence to Convict

The court of appeals reviews de novo whether there was sufficient evidence to support a conviction. In

reviewing the sufficiency of the evidence, the court views the record in the light most favorable to the

government, resolving all reasonable inferences in favor of the verdict. The evidence will be sufficient to

support a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.

Evidence > Procedural Considerations > Circumstantial & Direct Evidence

Evidence > Procedural Considerations > Weight & Sufficiency

Evidence > Inferences & Presumptions > Inferences

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Credibility of Witnesses

The test for sufficiency of the evidence is the same, whether or not the evidence is direct or

circumstantial, but where the government relied on circumstantial evidence, reasonable inferences must

support the conviction. The court of appeals assumes that the jury resolved all questions of credibility in

a manner supporting the verdict. Further, the evidence need not exclude every reasonable hypothesis of

innocence for a reasonable jury to find guilt beyond a reasonable doubt. Instead, the jury is free to

choose among alternative, reasonable interpretations of the evidence.

Criminal Law & Procedure > Criminal Offenses > Fraud > Credit Card Fraud > Elements

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

An individual is guilty of access device fraud when he knowingly and with intent to defraud traffics in or

uses one or more unauthorized access devices during any one-year period, and by such conduct obtains

anything of value aggregating $1,000 or more during that period. 18 U.S.C.S. § 1029(a)(2). Thus, to

convict a defendant for use of unauthorized access devices, the government must prove that the

defendant: (1) knowingly used one or more unauthorized access devices, (2) with intent to defraud, (3) to

obtain anything having an aggregate value of $1,000 or more during a one-year period, and (4) such use

affected interstate or foreign commerce.

Evidence > Procedural Considerations > Circumstantial & Direct Evidence

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple

Possession > Elements

It is well settled that possession of contraband may be constructive as well as actual and may be proven

by circumstantial evidence. To prove actual possession, the government must prove that the defendant

had either physical possession of or personal dominion over the thing allegedly possessed. Constructive

possession exists when a defendant has ownership, dominion, or control over an object itself or dominion

or control over the premises in which the object is concealed. Moreover, constructive possession need

not be exclusive, but may be shared by others.

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Definitions

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Evidence

Evidence > Procedural Considerations > Weight & Sufficiency

Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Sufficiency of

Evidence to Convict

The court of appeals typically reviews challenges to the sufficiency of the evidence de novo, but it

reviews unpreserved objections to the sufficiency of evidence only for plain error. Under plain-error

review, the court asks whether there was (1) error; (2) that is plain; and (3) that affects substantial rights.

If these three conditions are met, the court may exercise its discretion to notice a forfeited error, but only

if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. To

properly preserve a challenge to the sufficiency of the evidence, a defendant must raise the same

specific challenges before the district court as he brings on appeal.

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

To prove aggravated identity theft under 18 U.S.C.S. § 1028A, the government must show 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 relation to a felony enumerated in § 1028A(c).

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Definitions

For an error to be plain, it must be one that is obvious and clear under current law. An error is not

obvious or clear under current law when there is a lack of controlling authority or there is room for doubt

about the outcome of an issue.

Criminal Law & Procedure > Criminal Offenses > Fraud > Credit Card Fraud > Elements

An individual is guilty of possession of 15 or more unauthorized access devices if he possesses such

devices knowingly and with intent to defraud. 18 U.S.C.S. § 1029(a)(3). An access device means any

card, account number, electronic serial number, personal identification number, or other means of

account access that can be used, alone or in conjunction with another access device, to obtain money or

that can be used to initiate a transfer of funds. § 1029(e)(1). An unauthorized access device means any

access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud. §

1029(e)(3).

Criminal Law & Procedure > Criminal Offenses > Fraud > Credit Card Fraud > Elements

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Counterfeiting >

Elements

Under 18 U.S.C.S. § 1029(a)(2) and (3), whoever knowingly and with intent to defraud traffics in or uses

one or more unauthorized access devices during any one-year period, and by such conduct obtains

anything of value aggregating $1,000 or more during that period or possesses fifteen or more devices

which are counterfeit or unauthorized access devices shall, if the offense affects interstate commerce or

foreign commerce, be punished by a fine or imprisonment for not more than ten years, or both. §

1029(a)(2)-(3), (c).

Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

In the context of 18 U.S.C.S. § 1028, the government must prove only a minimal nexus with interstate

commerce in a § 1028 prosecution to satisfy the in or affects interstate or foreign commerce

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

requirement. The defendant need have had only the intent to accomplish acts, which, if successful,

would have affected interstate or foreign commerce. And the government is not required to prove that

the defendant had knowledge of the interstate commerce nexus when he committed an act in violation of

§ 1028(a). As to 18 U.S.C.S. § 1029, as to the requirement that the access-device fraud affect interstate

or foreign commerce, credit cards generally are issued to applicants by out-of-state financial institutions,

and credit-card account numbers travel across state lines, both electronically and by mail.

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Jury Instructions

Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Jury

Instructions

Generally, the court of appeals reviews the legal accuracy of jury instructions de novo. But when the

defendant makes no specific objection to the jury charge at trial, the court reviews the claim for plain

error. The court will not reverse a conviction for a defective jury charge unless it is left with a substantial

and eradicable doubt as to whether the jury was properly guided in its deliberations.

Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Jury Instructions

Criminal Law & Procedure > Appeals > Reversible Errors > Jury Instructions

When the court of appeals applies the plain error rule to jury instructions, it does not consider the

asserted errors in isolation. Instead, it considers the totality of the charge as a whole and determines

whether the potential harm caused by the jury charge has been neutralized by the other instructions

given at the trial such that reasonable jurors would not have been misled by the error. And even if the

unobjected to error retained some prejudicial impact, reversal still may not be warranted. To show that

an instructional error affected his substantial rights, a defendant must show that the error was probably

responsible for an incorrect verdict. If the defendant's guilt would have been clear under the correct

instruction, he cannot show plain error.

Criminal Law & Procedure > Accessories > Aiding & Abetting

Aiding and abetting is not a separate crime; rather, it allows a jury to find one guilty of an offense even

though he did not commit all the acts constituting the elements of the substantive crime aided. There is

no need to refer to aiding and abetting in the indictment because the aiding and abetting theory is not an

essential element of the offense. Instead, it is a theory upon which criminal liability may be based. It is an

alternative charge in every count, whether explicit or implicit.

Opinion

PER CURIAM:

Branden Tyler appeals his convictions for use of one or more unauthorized devices, possession of 15

or more unauthorized access devices, aggravated identity theft, and possession of access

device-making equipment. On appeal, Tyler makes several arguments. First, he argues that the

government's evidence was insufficient to support his conviction for use of one or more unauthorized

devices because its evidence was circumstantial. Second, he argues that there was insufficient

evidence to support his aggravated identify theft conviction{2023 U.S. App. LEXIS 2} because there

was insufficient evidence that he knew Willard Steele was a real person. Third, he argues that there

was insufficient evidence to support his conviction for possession of 15 or more unauthorized

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

devices because there was no evidence presented about the usability of those devices. Fourth, he

argues that there was insufficient evidence to support his convictions for possession of 15 or more

unauthorized devices and possession of access device-making equipment because there was no

evidence that his conduct affected interstate or foreign commerce. And finally, he argues that the

district court plainly erred when it gave an aiding and abetting jury instruction.

For the following reasons, we affirm Tyler’s convictions.

Tyler was charged in a second superseding indictment with: use of one or more unauthorized

devices in violation of 18 U.S.C. § 1029(a)(2) (Count 1); possession of 15 or more unauthorized

access devices in violation of 18 U.S.C. § 1029(a)(3) (Count 2); aggravated identity theft in violation

of 18 U.S.C. § 1028(A)(a)(1) (Count 3), and possession of access device-making equipment in

violation of 18 U.S.C. § 1029(a)(4) (Count 4). Tyler proceeded to trial on the charges.

At trial, the government called Brian Welshans, an employee at Truist Bank-formerly{2023 U.S.

App. LEXIS 3} known as BB&T Bank-who testified to the following. Welshans investigated the

activity for two credit cards at BB&T Bank in the name of Willard Steele. He found two credit card

applications in Steele's name that listed an 8231 Northwest Court, Lauderhill, Florida, address (the

"8231 address"). The credit cards were approved by the bank in Steele's name in May 2020, and

between the two cards-one card's account ending in 4177 and the other's ending in 0460-there were

purchases and cash advances in excess of $46,000.

Next, the government called Lauderhill Police Department Detective Richard Clarke, who testified to

the following. Clarke started his investigation into Tyler after he received a call from Welshans, who

told him that there was fraudulent activity associated with the two credit cards in Steele's name.

Clarke first contacted Steele, who informed him that he had no idea that either credit card had been

opened. He found the bank statements for both credit cards suspicious because the applications

were done online, there were multiple purchases and cash advances on them, and there were

insufficient funds used to pay off the payments on the cards. He noticed that there were

Amazon{2023 U.S. App. LEXIS 4} purchases on the credit card for the 0460 account. He also found

the bank statement for the 4177 account suspicious because of the cash advances from ATM

machines, the card had been used over its limit, and there were Amazon purchases on that card. On

both cards, there were around $11,467 in Amazon purchases. Clarke then subpoenaed Amazon, who

provided the dates of orders, email addresses, and customer information; this information revealed

that Steele was supposed to be the recipient of those items at the 8231 address. The Amazon items

purchased included BDI furniture and Wolf Gourmet items. He also discovered that there was a UPS

delivery to that address on July 1, 2020, for five items.

Clarke saw "like" items to the Wolf Gourmet items ordered to another address in Lauderhill-5105

Northwest 75th Avenue (the "5105 address"), which was Tyler's address. On September 6, 2020,

Clarke went to the 8231 address where the Amazon packages were delivered, and the person who

resided there-who was not Steele-answered the door and stated he knew Tyler. After meeting this

resident, Clarke identified a citation that was issued to Tyler outside the 8231 address on July 1,

2020.

Clarke then went to{2023 U.S. App. LEXIS 5} the 5105 address, and Tyler answered the door and

confirmed that he lived there. Clarke gave Tyler his business card, which stated an appointment for

the next Monday for Clarke to return and meet with Tyler. Clarke returned on that date, and Tyler

again opened the door for him. Jacqueline Cornwall, Tyler's grandmother and the other resident of

the home, took Clarke to the garage after Clarke'showed her pictures of the Amazon items that were

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

ordered. In the garage, Clarke saw similar-in-kind Wolf Gourmet products, two toasters, and an oven

that he recognized to be similar to the Amazon products that were supposedly delivered to the 8231

address on July 1, 2020.

Clarke then searched a bedroom that Tyler's family stated was Tyler's room. In this room, Clarke

found his business card that he handed to Tyler the first time he went to the residence, prepaid

phones that he described as burner phones, a laptop, printers, and a Dyson dryer. In Clarke's

experience, prepaid phones indicated fraud, a dryer was often used to ensure that any forms of

identification made and printed with ink could dry quickly, and the printers were often used to print

cards. Additionally, in the bedroom, officers found{2023 U.S. App. LEXIS 6} credit cards with other

individuals' names, a driver's license with Tyler's name that listed the 5105 address, a card-reader, a

hologram package, eleven Florida driver's licenses, and a Bank of America checkbook in the name

of someone who did not live at the residence. Next to the hologram, Clarke found at least fifty blank

plastic cards. He then swiped all the cards found in the bedroom with a card-reader that provided the

information of the individuals whose names were on those cards, of which there were at least fifteen

or twenty. He also found an "HID" device, which can be used to produce cards such as driver's

licenses or bank cards, and a coder reencoder, which can be used to add or erase information on

cards that can be purchased on Amazon and that often are used for fraud. He further found a book

that was a guide for driver's licenses in each state and blank checks.

Also, during the search, officers found bank statements, receipts, debit card statements, a ticket, a

letter from the Internal Revenue Service, and correspondence from the Department of

Transportation all in Tyler's name. They found letters addressed to individuals other than Tyler

related to identity theft. They{2023 U.S. App. LEXIS 7} found a safe that had $140,000 in

hundred-dollar bills, a BMW key and a title for the BMW in Tyler's name with the 5105 address listed,

personal identification all belonging to Tyler, postal orders worth $14,000, and jewelry valued at

about $160,000. A Rolex watch was also found in the safe, which was purchased under the name

Kareem and the cards used to pay for it were consistent with the names on IDs that were found in

Tyler's room. There was also an empty box for a Sony A92 camera and lens, which was consistent

with the camera from the Amazon purchases ordered from the cards taken out in Steele's name, and

the camera was in the Amazon box when it was found. Officers also found two laptops, a Topaz

signature pad was found which can be used to make signatures, a HID card reader, two other card

readers, and holograms that would go on a Florida driver's license.

Clarke ultimately followed up with the banks for each credit card found. And he identified the people

whose driver's licenses were found. On cross-examination, Clarke explained that, during his

investigation, he found that three of the places that the cards were used at had video of a person

fitting Tyler's description and that{2023 U.S. App. LEXIS 8} a live witness identified Tyler at one of

those locations. Clarke also viewed Ring camera footage outside the house of the person receiving

the packages and determined it to be Tyler.

The government next called Officer Robert Murray, who testified that he had responded to a

suspicious vehicle report on July 1, 2020, near the 8231 address. When Murray arrived, he saw a car

parked in the road occupied by Tyler. Tyler told Murray that he was "waiting for something" and

handed him his Florida driver's license, and the license photo matched the person Murray saw in the

car-Tyler. On the ticket Murray issued to Tyler, Murray listed Tyler's name and his address as the

5105 address.

The government then called Rachel Varela, a Lauderhill Police Department crime scene unit ^

supervisor who worked as a latent fingerprint examiner in Tyler's case. Varela collected Tylers

fingerprints from him and explained that the fingerprints lifted from the MacBook laptop taken from

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

the bedroom matched Tyler’s fingerprints.

The government then called Detective Jaynis Tadlock, a digital forensic examiner with the City of

Miami Police Department, who testified to the following. Tadlock analyzed the Razor laptop

discovered{2023 U.S. App. LEXIS 9} in the search and found that the username for the computer

was "Yoda." She recognized a letter addressed to Tyler with the 5105 address from Bank of America

that was located on the computer. She also found bank enrollment information for PNC bank and

Green Dot on one of the devices she analyzed. Tadlock then read out messages from a phone she

analyzed. The messages were from "Andre Johnson" to a username that was a grouping of numbers.

Johnson asked this username, "You doing look-ups?"; the username responded, "Yep. $15 a name."

Tadlock found a text message between Johnson and the username that discussed Truth Finder, a

website where anyone can purchase a background check on a person. The email for the Truth Finder

account was "Yoda305305@gmail." Tadlock also read more messages between Johnson and the

username that stated, "I signed this morning. Go bank. Took like 20-minute, LOL. Yep. Just got to go

small," and ”l just got everything within an hour. I just got another 128K." Another message stated,

"Send license number. Send height you want on it. Send the four digits after the 3313, send issue

and expiration you want on it"; the response to this message was "generate license." Tadlock{2023

U.S. App. LEXIS 10} also found an email on the laptop for "WillASteele1950@gmail." There were

also messages asking how much it was for a Florida ID card.

Tadlock also found on the laptop an application called "Zeus" store, where a person can chat and

request to look up names and address information; the application would return social security

numbers, birthdays, and other personal information. Tadlock found search results for Milagros Yap,

Trad Hamdan, and Cassandra Reyes. And on cross-examination, Tadlock testified that, on one of

the cellphones found, she found four pictures of Tyler.

The government also called Yap and Reyes as witnesses. Both Yap and Reyes testified that they did

not know Tyler or give him permission to have their identification cards or open credit card accounts

in their names. The government also called Steele, who testified that he did not open accounts for

the credit cards ending in 4117 and 0460, that he did not know Tyler, that he did not give anyone

permission to open those accounts, and that he did not make any Amazon purchases on those

accounts.

Through its witnesses' testimony, the government entered the following evidence. The government

entered the BB&T credit card applications{2023 U.S. App. LEXIS 11} and the 4117 account's activity

report, which included: (1) purchases from Amazon stating that Amazon was located in Washington;

(2) a purchase from Tempur Pedic that listed Kentucky as the postal code; and (3) a purchase from

Verizon that had California listed as the location. Both credit card accounts had a North Carolina

address listed for BB&T. The government also entered into evidence photos of all the items

described above that were found in Tyler's bedroom. The government further entered a consumer

report that listed Tyler's name and the 5105 address and the account summary for the 0460 account

which showed the purchases and cash withdrawals. And the government entered the text messages

between Johnson and the list of numbers username, as testified to by Tadlock.

The government then rested its case, and Tyler moved for judgment of acquittal on Count 3, arguing

that the government failed to prove beyond a reasonable doubt that Tyler possessed or used any

means of identification. In making this argument, however, Tyler did not assert that the government

had failed to establish that Tyler knew Steele was a real person. After hearing the parties' arguments,

the district court stated{2023 U.S. App. LEXIS 12} that "defendant's motion for judgment of acquittal

as to Counts 1 through 4 will be denied." After Tyler rested his case, Tyler renewed his motion,

adopting the same prior argument, which the court denied.

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

During trial, the district court asked if there were any objections to the proposed jury instructions.

Tyler stated he reviewed the instructions and did not have any objections, and the government

sought to clarify that the aiding and abetting instruction was included, which the court stated it was.

After the parties rested, the district court read the jury its instructions. Of relevance to this appeal, the

following instruction was read to the jury:

A defendant aids and abets a person if the defendant intentionally joins with the person to

commit a crime. A defendant is criminally responsible for the acts of another person if the

defendant aids and abets the other person.

A defendant is only responsible if the defendant willfully directs or authorizes acts of an agent,

employee or other associate. But, finding a defendant criminally responsible for the acts of

another person requires proof that the defendant intentionally associated with or participated in

the crime, not just proof{2023 U.S. App. LEXIS 13} that the defendant was simply present at the

scene of a crime or knew about it. In other words, you must find beyond a reasonable doubt that

the defendant was a willful participant, not merely a knowing spectator.

The jury found Tyler guilty on all four counts, and he was sentenced to 60 months' imprisonment.

This appeal ensued, and we now address Tyler's arguments in turn.

II.

First, Tyler argues that we should reverse his conviction for Count 1 because the government's

• evidence was circumstantial and based on mere speculation. The government responds that there

was ample evidence to convict Tyler of Count 1 because whether he acted alone or in concert with

others, he was personally involved in a fraudulent scheme to use the credit cards to obtain property.

And the government argues that there was overwhelming evidence of Tyler's constructive

possession of the items found at the 5105 residence.

We review de novo whether there was sufficient evidence to support a conviction. United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In reviewing the sufficiency of the evidence, we view

the record in the light most favorable to the government, resolving all reasonable inferences in favor

of the verdict. Id. The evidence will be sufficient to{2023 U.S. App. LEXIS 14} support a conviction if

"a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt."

Id. at 1284-85 (quoting United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996)).

The test for sufficiency of the evidence is the same, whether or not the evidence is direct or

circumstantial, but where the government relied on circumstantial evidence, reasonable inferences

must support the conviction. United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). We assume

that the jury resolved all questions of credibility in a manner supporting the verdict. Jiminez, 564 F.3d

at 1285. Further, the evidence need not exclude every reasonable hypothesis of innocence for a

reasonable jury to find guilt beyond a reasonable doubt. United States v. Cruz-Valdez, 773 F.2d

1541, 1545 (11th Cir. 1985) (en banc). Instead, the jury is free to choose among alternative,

reasonable interpretations of the evidence. United States v. Beach, 80 F.4th 1245, 1256 (11th Cir.

2023).

An individual is guilty of access device fraud when he "knowingly and with intent to defraud traffics in

or uses one or more unauthorized access devices during any one-year period, and by such conduct

obtains anything of value aggregating $1,000 or more during that period." 18 U.S.C. § 1029(a)(2).

Thus, to convict a defendant for use of unauthorized access devices, "the government must prove

that the defendant: (1) 'knowingly' used 'one or more unauthorized access devices,' (2) 'with intent to

defraud,'{2023 U.S. App. LEXIS 15} (3) to obtain anything having an aggregate value of ’$1,000 or

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

more' during a one-year period, and (4) such use 'affect[ed] interstate or foreign commerce."' United

States v. Klopt, 423 F.3d 1228, 1240 (11th Cir. 2005) (quoting § 1029(a)(2)).

"It is well settled that possession of contraband may be constructive as well as actual and may be

proven by circumstantial evidence." United States v. Kincade, 714 F.2d 1064, 1066 (11th Cir. 1983).

To prove actual possession, the government must prove that the defendant had either physical

possession of or personal dominion over the thing allegedly possessed. United States v. Derose, 74

F.3d 1177, 1185 (11th Cir. 1996). "Constructive possession exists when a defendant has ownership,

dominion, or control over an object itself or dominion or control over the premises... in which the

object is concealed." United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). "Moreover,

constructive possession need not be exclusive, but may be shared by others." Kincade, 714 F.2d at

1066.

Here, we conclude that the evidence presented at trial was sufficient to find that Tyler used one or

more unauthorized devices in violation of § 1029(a)(2). First, based on the evidence, the jury could

reasonably conclude that Tyler lived at the 5105 address and had possession over the bedroom

where all the evidence was found. See Leonard, 138 F.3d at 909. Indeed, Tyler's identification was

found in the bedroom's safe, his fingerprint was found on one of the laptops, his grandmother{2023

U.S. App. LEXIS 16} stated that it was his bedroom, and Tyler confirmed to Clarke that he lived at

the 5105 address. Therefore, it was reasonable for the jury to conclude that Tyler at least had

dominion or control over the bedroom.

There was also sufficient evidence for the jury to reasonably conclude that Tyler committed Count 1.

Tyler was seen at the 8231 address on July 1, 2020-the day the Amazon packages purchased from

Steele's account were supposed to be delivered. There was also evidence found in Tyler's bedroom

of Steele's personal information, as well as the email address of the person who applied for the two

credit cards used and text messages found on a cellphone in the room that discussed the same

email. Further, there was evidence of Wolf Gourmet items in the 5105 address's garage. And there

was also video footage of Tyler at the places the card was used and a witness who stated they saw

Tyler at one of those places. Accordingly, we conclude that there was sufficient evidence to support

this conviction, and we affirm as to this issue.

III.

Next, Tyler argues that the government failed to present evidence that he knew that the means of

identification belonged to a real person beyond a reasonable{2023 U.S. App. LEXIS 17} doubt. In

response, the government argues that Tyler did not argue in the district court that there was

insufficient evidence that he knew the cards belonged to a real person, and thus the claim should be

reviewed for plain error. And the government asserts that there was sufficient evidence from which a

reasonable jury could conclude that Tyler knew the cards belonged to a real person-Steele.

We typically review challenges to the sufficiency of the evidence de novo, but we review

unpreserved objections to the sufficiency of evidence only for plain error. United States v. Zitron, 810

F,3d 1253, 1260 (11th Cir. 2016). Under plain-error review, we ask whether there was (1) error; (2)

that is plain; and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461,466-67,

117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). If these three conditions are met, we may exercise our

discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. at 467. To properly preserve a challenge to the

sufficiency of the evidence, a defendant must raise the same specific challenges before the district

court as he brings on appeal. See United States v. Baston, 818 F.3d 651, 663-64 (11th Cir. 2016).

To prove aggravated identity theft under 18 U.S.C. § 1028A, the government must show that "the

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

defendant: (1) knowingly transferred, possessed, or{2023 U.S. App. LEXIS 18} 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)

(quoting United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007)).

Here, because Tyler did not move for judgment of acquittal on Count 3 because he did not know

Steele was an actual person, we review for plain error. And we conclude that the district court did not

commit plain error, as there was sufficient evidence to show that Willard Steele was a real person.

For example, a jury could reasonably conclude that, based on the text messages from the phone

seized in Tyler's bedroom, Tyler knew he was dealing with real people. Further, BB&T Bank

accepted the application for two credit cards in Steele's name. Thus, there is sufficient evidence to

support Tyler's conviction for aggravated identity theft, and we affirm as to this issue.

IV.

Tyler also argues that his conviction for Count 2 should be vacated because there was no evidence

about the usability of the alleged unauthorized access devices recovered from his alleged bedroom.

The government responds that Tyler failed to make this argument below, meaning that the issue is

reviewed for plain error. And the government argues that there was sufficient{2023 U.S. App. LEXIS

19} evidence found in Tyler's bedroom to support the conviction.

For an error to be plain, it must be one that is obvious and clear under current law. United States v.

Madden, 733 F.3d 1314, 1322 (11th Cir. 2013). An error is not obvious or clear under current law

when there is a "lack of controlling authority" or there is "room for doubt about the outcome" of an

issue. United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (quoting United States v.

Thompson, 82 F.3d 849, 856 (9th Cir. 1996).

An individual is guilty of possession of 15 or more "unauthorized access devices" if he possesses

such devices knowingly and with intent to defraud. 18 U.S.C. § 1029(a)(3). An "'access device'

means any card,... account number, electronic serial number,... personal identification number,.

.. or other means of account access that can be used, alone or in conjunction with another access

device, to obtain money ... or that can be used to initiate a transfer of funds." Id. § 1029(e)(1). An

"'unauthorized access' device means any access device that is lost, stolen, expired, revoked,

canceled, or obtained with intent to defraud." Id. § 1029(e)(3).

Here, we review for plain error because Tyler did not argue in his motion for judgment of acquittal

that the government did not prove the usability of the access devices. Zitron, 810 F.3d at 1260. And

we conclude that the district court did not commit plain error as there was sufficient evidence{2023

U.S. App. LEXIS 20} to support Tyler's conviction for possession of 15 or more unauthorized access

devices, as neither the statute nor binding precedent require proof of the usability of the devices.

See Humphrey, 164 F.3d at 588. We thus affirm as to this issue.

Tyler also argues that the government failed to prove that his alleged criminal conduct affected

interstate or foreign commerce as to Counts 2 and 4. The government again responds by arguing

that plain-error review applies because Tyler did not move for judgment of acquittal on this basis.

The government argues that the evidence shows Tyler used fraudulently obtained credit cards to

make Amazon and other purchases, which affected interstate commerce. The government further

argues that the evidence shows Tyler's scheme was broader than just the credit cards, as (1) his

bedroom contained device-making equipment and dozens of debit and credit cards and (2) the

messages on his phone contained personal identification information of individuals not only in

Florida, but other states as well. Given this, the government asserts that a reasonable jury could

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

conclude that Tyler's device-making equipment was used to generate fraudulent cards that would

affect interstate commerce.{2023 U.S. App. LEXIS 21}

Under § 1029(a)(2) and (3), whoever "knowingly and with intent to defraud traffics in or uses one or

more unauthorized access devi[c]es during any one-year period, and by such conduct obtains

anything of value aggregating $1,000 or more during that period" or "possesses fifteen or more

devices which are counterfeit or unauthorized access devices" "shall, if the offense affects interstate

commerce or foreign commerce," be punished by a fine or imprisonment for not more than ten years,

or both. § 1029(a)(2)-(3), (c).

In the context of 18 U.S.C. § 1028, we have held that "the government must prove only a minimal

nexus with interstate commerce in a § 1028 prosecution to satisfy the in or affects interstate or

foreign commerce requirement." Klopt, 423 F.3d at 1239. "The defendant need have had only the

intent to accomplish acts, which, if successful, would have affected interstate or foreign commerce."

Id. And the government "is not required to prove that the defendant had knowledge of the interstate

commerce nexus when he committed an act in violation of § 1028(a)." Id. As to § 1029, in Klopf, we

explained that, as to "the requirement that the access-device fraud affect interstate or foreign

commerce, credit cards generally are issued to applicants by out-of-state financial institutions,{2023

U.S. App. LEXIS 22} and credit-card account numbers travel across state lines, both electronically

and by mail." Id. at 1240. Because the defendant had made purchases and withdrawals with the

fraudulently obtained credit cards, he "engaged in interstate financial transactions." Id.

Again reviewing for plain error, we conclude that the district court did not commit plain error on this

issue. As in Klopt, the jury could reasonably conclude that Tyler's criminal conduct involved in his

convictions for possession of 15 or more unauthorized devices and possession of access

device-making equipment affected interstate or foreign commerce. For example, evidence showed

that Tyler made purchases from the 4117 account from Amazon, listed Amazon as being located in

Washington, a purchase from Tempur Pedic had Kentucky listed as the postal code, and a purchase

from Verizon had California listed. Further, the evidence showed that the bank Tyler fraudulently

obtained the cards from was based in North Carolina. Because there is sufficient evidence

establishing that Tyler's conduct affected interstate commerce, we affirm as to this issue.

VI.

Finally, Tyler asserts that the district court plainly erred when it gave an aiding and abetting{2023

U.S. App. LEXIS 23} jury instruction.

Generally, we review the legal accuracy of jury instructions cfe novo. United States v. Prather, 205

F.3d 1265, 1270 (11th Cir. 2000). But when the defendant makes no specific objection to the jury

charge at trial, we review the claim for plain error. United States v. Schlei, 122 F.3d 944, 973 (11th

Cir. 1997). We will not reverse a conviction for a defective jury charge unless we are "left with a

substantial and eradicable doubt as to whether the jury was properly guided in its deliberations."

United States v. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003) (quoting McCormick v. Aderholt, 293

F.3d 1254, 1260 (11th Cir. 2002)).

"When we apply the plain error rule to jury instructions, we do not consider the asserted errors in

isolation." United States v. Iriele, 977 F.3d 1155, 1178 (11th Cir. 2020). Instead, we consider "the

totality of the charge as a whole" and determine "whether the potential harm caused by the jury

charge has been neutralized by the other instructions given at the trial such that reasonable jurors

would not have been misled by the error." Id. (quoting United States v. Whyte, 928 F.3d 1317, 1332

(11th Cir. 2019)). "And even if the unobjected to error retained some prejudicial impact, reversal still

may not be warranted." Id. at 1179. "To show that an instructional error affected his substantial

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

rights, a defendant must show that the error 'was probably responsible for an incorrect verdict."' Id.

(quoting Whyte, 928 F.3d at 1332). If the defendant's guilt would have been clear under the correct

instruction, he cannot show plain error. Id.

(2023 U.S. App. LEXIS 24}Aiding and abetting is not a separate crime; rather, "[i]t allows a jury to

find one guilty of an offense even though he did not commit all the acts constituting the elements of

the substantive crime aided." United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984). There is

no need to refer to aiding and abetting in the indictment because "[t]he aiding and abetting theory is

not an essential element of the offense." United States v. DePace, 120 F.3d 233, 236 n.3 (11th Cir.

1997). Instead, it is a theory "upon which criminal liability may be based." United States v. Camacho,

233 F.3d 1308, 1315 (11th Cir. 2000). It "is an alternative charge in every count, whether explicit or

implicit." United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980).

Here, the district court did not commit plain error when it gave an aiding and abetting instruction. The

evidence showed that Tyler did not commit all the acts himself in making the licenses and credit

cards because of the text messages with the unidentified username who helped Tyler with the

lookups and personal information. And there is no evidence that the aiding and abetting instruction

misled the jury in its deliberations or was responsible for an incorrect verdict for any of the counts on

which Tyler was charged, especially given there was sufficient evidence to support those convictions.

See Puche, 350 F.3d at 1148; Iriele, 977 F.3d at 1179. Accordingly, we affirm as to this issue

VII.

For all these reasons, we affirm{2023 U.S. App. LEXIS 25} Tyler's convictions.

AFFIRMED.

CIRHOT

and terms and conditions of the Matthew Bender Master Agreement.

64136509

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.