United States v. Jaime Tovar-Montoya , 652 F. App'x 882 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13427
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00221-RBD-DAB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME TOVAR-MONTOYA,
a.k.a. Jaime Albeiro Montoya,
a.k.a. Jaime Albeiro Tovar Montoya,
a.k.a. Jaime Albeiro Tobar Montoya,
a.k.a. Rober Stevens,
a.k.a. Jimmy Tobar Diaz,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 20, 2016)
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Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jaime Tovar-Montoya appeals his jury convictions for two counts of falsely
representing himself as a United States citizen, in violation of 18 U.S.C. § 911; one
count of making a false statement in an application for a United States passport, in
violation of 18 U.S.C. § 1542; and two counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1). He argues that the evidence offered at his
trial was insufficient to support his convictions. After a thorough review of the
record and careful consideration of the parties’ briefs, we affirm.
I. STANDARD OF REVIEW
We review de novo whether the evidence was sufficient to sustain a criminal
conviction, “viewing the evidence in the light most favorable to the [G]overnment,
and drawing all reasonable factual inferences in favor of the jury’s verdict.”
United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence is
sufficient “if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” See United States v. Doe, 661 F.3d 550,
560 (11th Cir. 2011) (internal quotation marks omitted). Thus, “it is not enough
for a defendant to put forth a reasonable hypothesis of innocence, because the issue
is not whether a jury reasonably could have acquitted but whether it reasonably
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could have found guilt beyond a reasonable doubt.” Jiminez, 564 F.3d at 1285
(internal quotation marks omitted).
II. DISCUSSION
To sustain Tovar-Montoya’s convictions under 18 U.S.C. §§ 911, 1542, and
1028A(a)(1), respectively, the evidence must have been sufficient to allow a
reasonable jury to find that Tovar-Montoya: (1) twice “falsely and willfully
represent[ed] himself to be a [U.S.] citizen”; (2) “willfully and knowingly [made a]
. . . false statement in an application for a [U.S.] passport with intent to induce . . .
the issuance of a passport”; and (3) on two occasions, “during and in relation to
any felony enumerated in [18 U.S.C. § 1028A(c)], knowingly . . . use[d], without
lawful authority, a means of identification of another person.” See 18 U.S.C. §§
911, 1542, 1028A(a)(1). Enumerated felonies in § 1028A(c) include falsely
representing oneself as a U.S. citizen and making a false statement in a U.S.
passport application. See 18 U.S.C. §§ 1028A(c)(2), (c)(7).
At trial, the Government argued that Tovar-Montoya used the birth
certificate of a U.S. citizen, O.C., to obtain a State of Florida identification card in
O.C.’s name. The Government also claimed that Tovar-Montoya applied for a
U.S. passport using the identification card, O.C.’s social security number, and
O.C.’s date of birth. All of Tovar-Montoya’s convictions were based on his
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improper use of O.C.’s personal information in obtaining the identification card
and applying for the passport.
On appeal, Tovar-Montoya asserts that the evidence offered at trial was
insufficient to support any of his convictions because it did not show that he was
the person who obtained the identification card and applied for the passport. He
also specifically challenges his identity theft convictions. He claims that the
evidence was insufficient to prove (1) that he used O.C.’s information without
lawful authority, (2) that O.C. was a real person, or (3) that he knew O.C. was a
real person. We address each argument in turn.
A. Sufficiency Challenge to All Convictions
Taking the evidence in the light most favorable to the Government, “a
reasonable trier of fact” could find that Tovar-Montoya was the person who
obtained the Florida identification card and applied for the U.S. passport. See
Jiminez, 564 F.3d at 1284–85 (internal quotation mark omitted). Tovar-Montoya
was pictured on the identification card, indicating that he went to the Florida office
that distributes identification cards, applied for the card, and had his picture taken
for the card. In addition, the identification card and a photograph of Tovar-
Montoya were submitted with the passport application, and the passport agent who
processed the application testified that every time an individual applies for a
passport she visually verifies that the individual is the same person pictured in the
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documents accompanying the application. Based on this evidence, a reasonable
jury could have found that the person who applied for the passport was the same
person pictured on the identification card and the submitted photograph—Tovar-
Montoya.
B. Specific Sufficiency Challenges to Identity Theft Convictions
Each of Tovar-Montoya’s specific challenges to his identity theft
convictions also fails. First, the evidence was sufficient to prove that he used
O.C.’s identity “without lawful authority.” See 18 U.S.C. § 1028A(a)(1). Lack of
lawful authority can be established by showing (1) that the defendant did not have
permission to use the victim’s identity or (2) that the defendant used the victim’s
means of identification for an unlawful purpose. See United States v. Zitron, 810
F.3d 1253, 1260 (11th Cir. 2016) (per curiam). The evidence supports a finding
that Tovar-Montoya used O.C.’s identity for an unlawful purpose. We must
uphold Tovar-Montoya’s convictions for falsely representing himself to be a U.S.
citizen and making a false statement in a U.S. passport application.1 And, the
evidence shows that Tovar-Montoya used a means of identification belonging to
O.C.—his date of birth and social security number—in committing those offenses.
See Doe, 661 F.3d at 561. Therefore, based on the evidence put forth at trial, “a
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Tovar-Montoya solely challenges those convictions on the ground that he did not
personally obtain the Florida identification card or apply for the passport. As discussed above,
that challenge fails. Thus, we must affirm the convictions.
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reasonable trier of fact” could find that Tovar-Montoya used O.C.’s identity for an
unlawful purpose and thus “without lawful authority.” See Jiminez, 564 F.3d at
1284–85 (internal quotation mark omitted); Zitron, 810 F.3d at 1260.
Second, the evidence was sufficient to show that O.C. is an actual person.
See United States v. Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010)
(acknowledging that, under § 1028A, the Government must prove that the
defendant used the identity of a “real person”). The Government introduced into
evidence a fingerprint card for O.C. that was created by the Federal Bureau of
Investigation. Furthermore, we have found that, “in the context of government-
issued identification . . . it is reasonable to conclude . . . that the government
routinely obtains an applicant’s identity to verify the authenticity of that identity.”
See United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam)
(internal quotation marks omitted); Gomez-Castro, 605 F.3d at 1249. Accordingly,
the State of Florida’s issuance of an identification card to Tovar-Montoya based on
O.C.’s identifying information provides a reasonable ground for finding that the
information was “associated with [a] real [person].” See Philidor, 717 F.3d at
885–86.
Finally, the evidence also sufficiently demonstrates that Tovar-Montoya
knew that O.C. was an actual person. See Flores-Figueroa v. United States, 556
U.S. 646, 657, 129 S. Ct. 1886, 1894 (2009) (holding that Ҥ 1028A(a)(1) requires
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the Government to show that the defendant knew that the means of identification at
issue belonged to another person”). “A reasonable jury . . . could have found that
[Tovar-Montoya]’s willingness to subject [O.C.’s identifying information]
repeatedly to government scrutiny established that []he knew, all along, that the
[information] belonged to a real person.” See United States v. Holmes, 595 F.3d
1255, 1258 (11th Cir. 2010) (per curiam). Said differently, “a reasonable jury
could have found that [Tovar-Montoya] would not have sought [an identification
card and passport] using [O.C.]’s personal information if [Tovar-Montoya] were
not confident that” O.C. was a real person. See id. This is underscored by the fact
that Tovar-Montoya applied for a driver’s license or identification card eleven
times from 1996 until the time of the offenses at issue, demonstrating that he was
aware of the verification procedures associated with the identification card
application process.
III. CONCLUSION
For the foregoing reasons, the evidence was sufficient to sustain all of
Tovar-Montoya’s convictions.
AFFIRMED.
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