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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11394
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20760-CMA-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ISAIAH MEME,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 13, 2020)
Before BRANCH, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
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Isaiah Meme was convicted of access device fraud, in violation of 18 U.S.C.
§ 1029(a)(2); aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1);
and possession of 15 or more unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(3). He appeals these convictions. On appeal, Meme argues that
there was insufficient evidence to support his convictions. For the reasons that
follow, we affirm Meme’s convictions.
BACKGROUND
Because Meme appeals his conviction, specifically arguing that the evidence
was insufficient to support a conviction, we review the evidence that was presented
at trial in some detail. Isaiah Meme was indicted on September 18, 2018, in a
multiple-count indictment alleging 1 count of access device fraud, in violation of
18 U.S.C. §1029(a)(2) (Count 1); 6 counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1) (Counts 2–5, 7–8); and 1 count of possession of 15 or
more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count
6). On the second day of trial, the district court granted the government’s motion
to dismiss Counts 2 and 3 on the grounds that Meme may have been a minor when
the offenses were committed.
Testimony at trial revealed the following. Robert Novakowski, an
investigator with JPMorgan Chase Bank, was investigating compromised debit
cards following customer complaints. Novakowski received a list of compromised
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debit cards and a list of transactions for those cards and obtained video surveillance
of the person making the transactions. He testified that images captured on drive-
up ATM cameras showed that Meme was making transactions with cards
belonging to other people and with counterfeit payment cards. Some of those
images showed Meme making transactions while driving a black Ford Mustang
with a bumper sticker. Novakowski sought the assistance of law enforcement in
identifying the person in the videos and images, and U.S. Secret Service Agent
Sterling Posten identified that person as Meme. Novakowski conceded that he
could not see the eye shape or eye color of the person in the images, but that the
person had the same face as Meme and that he independently reviewed all photos
and videos and, in so doing, was able to identify Meme as the person making the
transactions.
Secret Service Agent Greg Narano testified that the Secret Service had
obtained surveillance of people conducting unauthorized ATM withdrawals, one of
whom was Meme. Accordingly, the Secret Service set up surveillance on several
ATMs in an attempt to locate a black Mustang that was connected to some of these
unauthorized withdrawals. While conducting surveillance, Narano saw a person
driving a black Mustang with a bumper sticker use an ATM. Narano maintained
surveillance, identified the person in the car as Meme, and took several photos of
him. He followed Meme to Meme’s father’s house and continued his surveillance.
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Narano conceded in cross-examination that the Mustang was not registered in
Meme’s name, that Meme’s father owned the house, and that, based on his
surveillance at the ATM, he was unable to determine the build of the person in the
car or whether that person had facial hair. On redirect, he emphasized that he was
able to identify the person in the Mustang as Meme because he had an
unobstructed view of Meme’s face at one point.
Secret Service Agent Ken Adams testified to the following. He, like
Narano, was assigned to conduct surveillance at a Chase Bank ATM, saw a black
Mustang pull up to the ATM, watched the driver commit a fraudulent transaction,
identified the driver as Meme, and followed Meme to Meme’s father’s house. He
also participated in Meme’s arrest, after which he recovered two cell phones from
the Mustang. On cross-examination, Adams conceded that there were no debit
cards, credit cards, or large amounts of cash in the car when Meme was arrested.
Agent Posten then testified. He executed a search warrant of Meme’s
father’s house and in one bedroom, recovered five plastic cards, a laptop, a
firearm-training certificate in Meme’s name, several pieces of unopened mail, and
high school textbooks. Accordingly, Posten concluded that the bedroom belonged
to Meme. In a room that he concluded belonged to Meme’s brother, he recovered
a plastic card, a personal check not belonging to anybody living in the house, a
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money order, and a re-encoded plastic card.1 In the living room of the house,
Posten found a vehicle title belonging to Meme and traffic citations issued to
Meme. He also found other pieces of mail, like bank records, that did not belong
to anyone in the house—which he concluded was an indication of fraud taking
place in the house. Posten conceded that the Mustang was a rental vehicle that was
not rented by Meme; that according to the Florida Department of Highway Safety
and Motor Vehicles, Meme did not live with his father; and that none of the cards
in Meme’s bedroom had been re-encoded.
Secret Service Agents Marcos Morales and Allen Thomasson testified that
they had analyzed the phones recovered during Meme’s arrest. Morales
discovered that one of the phones was registered to a user identified as
“MasonM1267.” Thomasson’s analysis of the text messages in the phones
revealed that one of the phones had received text messages that identified the
recipient (and thus, the phone owner) as Meme. He also reviewed the email
account on the phone and discovered several emails received by an account
belonging to “MasonM1267” and several emails containing credit and debit card
1
In this context, re-encoding a plastic card serves to change the data on the card—in other words,
from what source the card pulled funds or registered transactions—so that it no longer matched
the information embossed on the card, e.g., the name or displayed number. See, e.g., United States
v. Cruz,
713 F.3d 600, 608 (11th Cir. 2013) (discussing re-encoding credit and debit cards). Re-
encoding cards is frequently charged as a violation of section 1029(a)(3), which prohibits the
knowing, and with intent to defraud, possession of “devices which are counterfeit or unauthorized
access devices.” E.g., United States v. Grimon,
923 F.3d 1302, 1306–1307 (11th Cir. 2019) (citing
18 U.S.C. § 1029(a)(3).
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numbers. Thomasson also found data on the phone showing that the phone’s
owner had visited commercial background search websites (which are frequently
used for identity theft and fraud) and disposable email service websites.
On the other phone, Thomasson also found information that identified Meme
as the account owner—the phone had sent a picture of Meme’s driver’s license and
the received texts referred to the phone’s owner as Meme. He also discovered
pictures of the Mustang, email accounts registered to “MasonM1267,” debit card
numbers and personal identification numbers, and correspondence relating to
purchasing debit card numbers and PINs on the phone, and that the phone had
visited commercial background search websites and websites for selling stolen
card numbers.
Thomasson also testified that he analyzed the laptop recovered from what
Posten had identified as Meme’s room. He discovered that the computer’s user
account was “MasonM1627.” He also found credit card and debit card numbers,
the card-owners’ personal information, software used to read and encode magnetic
strips in cards, software used to read and encode card microchips, bank
identification numbers, and bank routing numbers on the computer. All told,
Thomasson estimated that hundreds of individuals’ personal information and 120
different debit and credit card numbers were on Meme’s laptop. He also
discovered that the user of the laptop had visited websites selling credit card
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numbers and commercial background search websites. On cross-examination, he
conceded that he could not tell whether someone other than Meme had used the
laptop and phones.
After the government rested its case, Meme moved for a judgment of
acquittal. He argued that the government had failed to prove the existence of some
of the victims named in the indictment, venue was improper, and some of the
alleged criminal acts occurred while he was a minor. The district court denied
Meme’s motion.
Meme’s case solely consisted of calling his stepmother, Willaine Amedee,
who testified that Meme had never lived in his father’s house or kept any
belongings in the house. Meme rested, and then renewed his motion for a
judgment of acquittal based on insufficient evidence. The district court again
denied his motion.
The jury found Meme guilty of Counts 1 and 4–8. The district court
sentenced Meme to a 39-month prison term, which consisted of 15-month
concurrent sentences on Counts 1 and 6 and a 24-month sentence on Counts 4–5
and 7–8. Meme timely appealed to us.
ANALYSIS
On appeal, Meme argues that the evidence was insufficient to support his
conviction. We review the sufficiency of the evidence de novo, “viewing the
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evidence in the light most favorable to the government and drawing all reasonable
inferences in favor of the verdict.” United States v. Schier,
438 F.3d 1104, 1107
(11th Cir. 2006). The district court’s denial of “motions for a judgment of acquittal
will be upheld if a reasonable trier of fact could conclude that the evidence
establishes the defendant’s guilt beyond a reasonable doubt.” United States v.
Rodriguez,
218 F.3d 1243, 1244 (11th Cir. 2000). “[T]he issue is not whether a
jury reasonably could have acquitted but whether it reasonably could have found
guilt beyond a reasonable doubt,” so we will not reverse a conviction solely
because the defendant “put forth a reasonable hypothesis of innocence” at trial.
United States v. Campo,
840 F.3d 1249, 1258 (11th Cir. 2016) (quotation omitted).
We are bound by a jury’s “rejection of the inferences raised by the defendant.”
United States v. Hernandez,
433 F.3d 1328, 1334–35 (11th Cir. 2005).
Furthermore, we consider all evidence produced at trial against the defendant in
evaluating his claim of insufficient evidence. United States v. Thomas,
8 F.3d
1552, 1558 n.12 (11th Cir. 1993).
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). An individual is
guilty of possession of 15 or more unauthorized access devices if he possesses such
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devices knowingly and with intent to defraud.
Id. § 1029(a)(3). An individual is
guilty of aggravated identity theft when he “knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of another person” during
a felony violation of, among other things, “any provision contained in this chapter”
relating to fraud.
Id. §§ 1028A(a)(1), (c)(4). 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, . . . or obtained with intent to defraud.”
Id. § 1029(e)(3).
We read Meme’s arguments on appeal as essentially arguing for a more
favorable inference of the facts. He argues that fraud was taking place at his
father’s house (but he was not a part of it), that the Secret Service agents could not
identify who used the phones or computer, that the ATM surveillance photos were
poor-quality and did not lend themselves to identification, that no one described
the physical characteristics of the person who was using the access devices, that
Novakowski’s identification of him was tainted, and that no counterfeit access
devices were found in his “actual or constructive possession.”
These arguments are unavailing. These arguments echo what Meme argued
at trial—both to the district court and to the jury in his arguments for acquittal—
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and the jury was entitled to reject those arguments and draw a different inference.
We are not able to revisit the inference that the jury drew.
Hernandez, 433 F.3d at
1334–35. In any event, we conclude that the evidence at trial was sufficient to
support Meme’s conviction for two reasons: (1) the phone and laptop evidence
showed that Meme was committing access device fraud and (2) Meme was
identified as the person committing access device fraud. We address each in turn.
First, the testimony at trial clearly showed—although somewhat
circumstantially—that Meme was committing access device fraud. With regard to
the phones, the agents testified that Meme visited commercial background search
websites and websites where he could purchase stolen card numbers, had stolen
card numbers stored on his phones, and had correspondence relating to his
purchase thereof. The agents found similar evidence on Meme’s laptop.
Meme does not, and cannot, seriously contest the evidence found on both
devices—and so he instead suggests that other people were using the devices. We
wholly reject this argument, because it requires us to substitute the jury’s
reasonable inference based on the evidence presented at trial for an unreasonable
inference that happens to be more favorable to Meme. We think it is clear that the
devices both belonged to, and were used by, Meme. Contrary to Meme’s
argument, the phones were found in his “actual or constructive possession,” i.e.,
the car he was driving at the time he was arrested. And while the laptop was found
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in a room that Agent Posten had merely identified as Meme’s room, the evidence
certainly supports an inference that the room was Meme’s. His argument that he
did not live in the house, and thus that the room was not his, is strongly
contradicted by the extent to which his belongings were found both in the room
and elsewhere in the house. It is not likely that Meme’s firearm-training
certificate, vehicle title, and traffic citations would be in a house where he did not
live. Finally, we find it significant that the user account on Meme’s laptop was
identical to the username of the email accounts on Meme’s phones.
Second, Meme was identified as the person committing identity fraud.
Though it is true that Novakowski’s identification was at least partially predicated
on Agent Posten’s suggestion, we note that he testified that he independently
reviewed all of the videos and images of the fraudulent ATM transactions and he
provided an in-court identification of Meme. As we have explained previously,
“[a]n in-court identification, even if preceded by a suggestive out-of-court
identification procedure, is nevertheless admissible if the in-court identification has
an independent source.” United States v. Cannington,
729 F.2d 702, 711 (11th Cir.
1984).
But even if we concluded that Novakowski’s identification of Meme was
impermissible, we note that there are two additional—and more persuasive—
witnesses who identified Meme. Both Agents Adams and Narano identified Meme
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as the person in the black Mustang who made fraudulent transactions at an ATM.
Their identification is significant—both were surveilling him and followed him to
his father’s house, and Adams participated in Meme’s arrest.
Accordingly, we conclude that the evidence was sufficient to support
Meme’s conviction. The evidence as to the devices—both the phones in Meme’s
constructive possession at the time of his arrest and the laptop that was clearly
Meme’s—is persuasive evidence of Meme’s fraud. And the identification of
Meme, especially the eyewitness testimony of Secret Service agents who saw
Meme committing access device fraud, is even more persuasive. We reject
Meme’s arguments to the contrary.
AFFIRMED.
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