United States v. Maria Rafael Baez Jorge ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13223
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MANUEL FUMERO CRUZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20545-DPG-1
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2 Opinion of the Court 20-13223
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No. 20-13294
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO RAFAEL BAEZ JORGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20545-DPG-3
____________________
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20-13223 Opinion of the Court 3
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No. 20-14502
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MANUEL FUMERO CRUZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20545-DPG-1
____________________
Before ROSENBAUM, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Codefendants Carlos Manuel Fumero Cruz and Mario Ra-
fael Baez Jorge appeal their convictions for conspiracy to commit
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4 Opinion of the Court 20-13223
access device fraud, possession of 15 or more access devices, un-
lawful possession of the means of identification of three people,
and possession of access device making equipment. Jorge also ap-
peals his 60-month prison sentence for the same offenses. We ad-
dress each of their arguments in turn. After review, 1 we affirm
Cruz’s convictions and Jorge’s convictions and sentence.
I. SUFFICIENCY OF THE EVIDENCE
Both Cruz and Jorge assert the evidence at trial was insuffi-
cient to support their convictions for unlawfully possessing the
means of identification of three people identified in their supersed-
ing indictment.
Aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1), requires proof “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 re-
lation to a felony enumerated in § 1028A(c).” United States v. Bar-
rington, 648 F.3d 1178, 1192 (11th Cir. 2011) (quotation marks
omitted). The government must prove the defendant knew the
identity he was using belonged to a real person and can prove this
via circumstantial evidence. United States v. Maitre, 898 F.3d 1151,
1 We review the sufficiency of the evidence de novo, “viewing the evidence in
the light most favorable to the government and accepting all reasonable infer-
ences in favor of the verdict.” United States v. Mendez, 528 F.3d 811, 814 (11th
Cir. 2008). “We review a district court’s evidentiary rulings for a clear abuse
of discretion.” United States v. Flanders, 752 F.3d 1317, 1334 (11th Cir. 2014).
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20-13223 Opinion of the Court 5
1158-59 (11th Cir. 2018); United States v. Delva, 922 F.3d 1228,
1249-50 (11th Cir. 2019) (holding circumstantial evidence indicated
the defendant knew identity belonged to a real person because the
identity was used to fraudulently obtain refunds from the Internal
Revenue Service, which verified the name and Social Security num-
ber of the person requesting the refund).
The law recognizes several kinds of possession, including ac-
tual possession and constructive possession. United States v. Perez,
661 F.3d 568, 576 (11th Cir. 2011) (discussing possession in the con-
text of an 18 U.S.C. § 924(c) offense, i.e., knowing possession of a
firearm in furtherance of a drug-trafficking crime). Constructive
possession can sustain a § 1028A conviction. Maitre, 898 F.3d at
1159. A person has constructive possession when he “has
knowledge of the thing possessed coupled with the ability to main-
tain control over it or reduce it to his physical possession, even
though he does not have actual personal dominion.” United States
v. Baldwin, 774 F.3d 711, 722 (11th Cir. 2014) (quotation marks
omitted). Likewise, a person has constructive possession when he
exercises “ownership, dominion, or control over the contraband it-
self or dominion or control over the premises or the vehicle in
which the contraband is concealed.” Id. (quotation marks and al-
teration omitted).
A. Cruz
There was sufficient circumstantial evidence for the jury to
conclude beyond a reasonable doubt that Cruz constructively pos-
sessed the means of identification of J.R., Y.L., and E.A, as charged in
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Counts Three, Four, and Five. See United States v. Williams, 390
F.3d 1319, 1324 (11th Cir. 2004) (explaining whether the evidence
is direct or circumstantial, we accept all reasonable inferences that
tend to support the government’s case); United States v. Calhoon,
97 F.3d 518, 523 (11th Cir. 1996) (stating evidence is sufficient to
support a conviction if a reasonable jury could find the evidence
established guilt beyond a reasonable doubt). Based on the evi-
dence presented at trial, a reasonable jury could conclude beyond a
reasonable doubt that Cruz had dominion or control over the hotel
suite in which J.R.’s and E.A.’s means of identification were found.
See Baldwin, 774 F.3d at 722. Specifically, Cruz had rented the hotel
room and was paying rent for it. His personal belongings were found
in the suite, including a fraudulent driver’s license and an invoice
bearing his name, a safe containing a photograph of him and his girl-
friend, a Glock handgun box containing his photograph, and a fraud-
ulent credit card bearing his name and re-encoded with a stolen ac-
count number.
Cruz’s contention that he had already left the hotel suite and
was living with his girlfriend when law enforcement discovered the
fraudulent activity is unavailing because the jury found him guilty
despite his girlfriend’s testimony and received the following evi-
dence supporting a finding that he was still there. See United States
v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (stating
credibility questions are the province of the jury, and we assume
the jury resolved all such questions in a manner supporting its ver-
dict); United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir.
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20-13223 Opinion of the Court 7
1985) (en banc) (explaining the evidence is not required to exclude
every reasonable hypothesis of innocence for a reasonable jury to
find guilt beyond a reasonable doubt and the jury is free to choose
among alternative, reasonable interpretations of the evidence).
Cruz’s personal belongings were recovered from the hotel suite af-
ter law enforcement discovered the fraudulent activity. Cruz had
paid rent for the month in which the fraudulent criminal activity
was discovered, and there was no evidence he had checked out of
the hotel. Cruz’s neighbor testified he regularly saw Cruz use the
suite, including just days before the discovery of the fraudulent ac-
tivity. Moreover, there was testimony that a blue Ford with an
external gas tank—that Cruz’s neighbor saw Cruz using—was at
the hotel on the day when the fraudulent activity was discovered.
Likewise, the evidence was sufficient to demonstrate that Cruz
had constructive possession of over 700 stolen credit card account
numbers, including Y.L.’s account number, stored in the laptop re-
covered from codefendant Eduardo Dubed’s truck. There was expert
testimony the laptop belonged to and was used by Cruz. The only
username on the laptop was “Carlo,” which is one “s” shy of Cruz’s
first name, Carlos. Cruz’s photographs and documents were saved
on the laptop. The forensic laptop report showed Cruz’s email and
Facebook accounts were accessed from the laptop during the conspir-
acy period. The report also showed the laptop had been connected
to the USB drive found in the safe containing Cruz’s photograph.
Additionally, the evidence was sufficient to convict Cruz on
the aggravated identity theft charges because a reasonable jury could
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conclude beyond a reasonable doubt that Dubed possessed the means
of identification and Cruz aided him in identity theft. Specifically,
Cruz’s and Dubed’s personal belongings were recovered from the
suite, in which both were registered occupants, and from which iden-
tity-theft paraphernalia was recovered. Both had frequent communi-
cation, which included 94 calls within a month, a message about re-
encoding credit cards, and a chain of messages related to the purchase
of external gas tanks. Accordingly, a reasonable juror could conclude
beyond a reasonable doubt that Cruz aided and abetted his co-con-
spirator, Dubed, in aggravated identity theft. See Calhoon, 97 F.3d at
523; Williams, 390 F.3d at 1324.
In sum, there was sufficient evidence presented at trial for a
reasonable jury to conclude beyond a reasonable doubt that Cruz
constructively possessed the means of identification belonging to J.R.,
Y.L, and E.A. that were recovered from the hotel suite and laptop or
that he aided and abetted his co-conspirator in doing so. See Calhoon,
97 F.3d at 523; Baldwin, 774 F.3d at 722. Therefore, we affirm as to
this issue.
B. Jorge
There was also sufficient circumstantial evidence for a reason-
able juror to conclude beyond a reasonable doubt that Jorge construc-
tively possessed the means of identification of J.R., Y.L., and E.A, as
charged in Counts Three, Four, and Five. See Calhoon, 97 F.3d at
523. Because a § 1028A violation can be established by circumstan-
tial evidence of constructive possession, Jorge is incorrect that
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20-13223 Opinion of the Court 9
there must be a direct link between him and the stolen means of
identification.
Based on the evidence, a reasonable juror could conclude be-
yond a reasonable doubt that Jorge had dominion or control over the
hotel suite and therefore constructive possession of the means of
identification belonging to J.R. and E.A. that were found in it. See
Williams, 390 F.3d at 1324; Calhoon, 97 F.3d at 523; Maitre, 898 F.3d
at 1159; Baldwin, 774 F.3d at 722. Jorge’s personal belongings were
found in both rooms in the suite—including his wallet that contained
a card embossed with his name, his insurance card, his vehicle regis-
tration, a traffic ticket bearing his name, and his photograph. Jorge’s
personal belongings were intermingled in the suite with identity-theft
paraphernalia, which included skimmers, soldering devices, a credit
encoder, an embosser, specialty tools, and numerous credit cards and
gift cards. Additionally, Jorge’s testimony that he had invited women
into the suite for an overnight stay suggests he did not simply store
his belongings in the suite.
A reasonable juror could also conclude Jorge had constructive
possession of Y.L.’s account number recovered from the laptop in
Dubed’s truck based on the following evidence connecting him to it.
See Calhoon, 97 F.3d at 523; Maitre, 898 F.3d at 1159; Baldwin, 774
F.3d at 722. The laptop in Dubed’s truck was connected to a USB
drive, which was recovered from the suite. The truck was parked at
the same hotel where Jorge and Dubed’s personal belongings were
recovered. Jorge slept in Dubed’s truck at one point before moving
into the suite. Jorge and Dubed’s personal belongings were recovered
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from the same suite, which was filled with identity-theft parapherna-
lia. Moreover, there was expert testimony that the laptop contained
stolen account numbers—which were likely downloaded from skim-
mers via Bluetooth—and that Jorge’s phone likely communicated
with the gas pump skimmers via Bluetooth. Furthermore, Jorge and
Dubed had frequent communications over the phone, including text
messages from Jorge containing gas pump and skimmer locations.
Accordingly, a reasonable juror could conclude beyond a reasonable
doubt that Jorge had control and dominion of the laptop and there-
fore constructive possession of the account numbers within it.
While Jorge asserts there was no evidence he knew the means
of identification belonged to real people, a reasonable juror could also
conclude beyond a reasonable doubt that Jorge knew the stolen ac-
count numbers belonged to real people. See Calhoon, 97 F.3d at 523;
Williams, 390 F.3d at 1324; Delva, 922 F.3d at 1249-50. Expert testi-
mony indicated the account numbers recovered from the laptop and
the USB drive in the hotel suite were likely retrieved using skimmers
to obtain credit card information from gas pumps where people pur-
chase gas. Because there was evidence indicating Jorge was involved
in installing skimmers at gas pumps—including text messages about
gas pump and skimmer locations from Jorge’s phone to Dubed’s
phone and Jorge’s phone’s communication with Bluetooth devices
similar to those in a skimmer seized from the suite—a reasonable ju-
ror could conclude Jorge knew the stolen means of identification be-
longed to real people. Additionally, Jorge’s testimony he did not
knowingly possess the stolen identity numbers was disbelieved by the
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20-13223 Opinion of the Court 11
jury. Considering the other corroborating evidence, the jury’s disbe-
lief of his testimony can itself be used to establish the elements of his
§ 1028A offense. See United States v. Brown, 53 F.3d 312, 314-15
(11th Cir. 1995) (stating if the jury does not believe a defendant’s
testimony and there is corroborative evidence of the charged
crime, the jury may consider the disbelieved statement as substan-
tive evidence of the defendant’s guilt and use it to establish ele-
ments of his offense).
Additionally, the evidence was sufficient for Jorge’s conviction
on the aggravated identity theft charges because he was also charged
for aiding and abetting those crimes and the evidence was sufficient
for a reasonable juror to conclude beyond a reasonable doubt Dubed
possessed the means of identification and Jorge aided him in identity
theft. See 18 U.S.C. § 2(a); Calhoon, 97 F.3d at 523; Wiliams, 390 F.3d
at 1324. Specifically, the laptop was recovered from Dubed’s truck,
and Jorge had slept in Dubed’s truck at one point. Jorge’s and
Dubed’s belongings were recovered from a hotel suite filled with
identity theft instrumentalities and fruits. Jorge and Dubed had fre-
quent communication over the phone, including 99 calls over three
weeks and text messages from Jorge containing gas pump and skim-
mer locations. Finally, Dubed had saved Jorge’s name in his phone as
“pincha,” which roughly translated to fraud worker.
Accordingly, there was sufficient circumstantial evidence to
support Jorge had constructive possession of the stolen means of iden-
tification specified in Counts Three to Five, he knew those identities
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belonged to real people, and he aided and abetted his co-conspirator
in doing so. Accordingly, we affirm as to this issue.
II. ADMISSION OF EVIDENCE
Both Cruz and Jorge also contend the district court erred by
admitting evidence in violation of Federal Rule of Evidence 404(b).
Cruz challenges the admission of allegedly incriminatory e-mails
from before the period specified in his conspiracy charge and Jorge
challenges the Government’s cross-examination of him regarding
his prior Kentucky credit-card-fraud charge and whether anybody
had ever called him a credit card thief.
A district court may, during cross-examination, allow inquir-
ies into specific instances of conduct if they are probative of the
witness’s character for truthfulness or untruthfulness. Fed. R. Evid.
608(b). “Except for a criminal conviction, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in or-
der to attack or support the witness’s character for truthfulness.”
Id. Matters affecting the credibility of a witness are always relevant
on cross-examination. United States v. Smalley, 754 F.2d 944, 951
(11th Cir. 1985).
Federal Rule of Evidence 404(b) forbids the admission of ev-
idence of a crime, wrong, or other act to prove a person’s character
in order to show that on a particular occasion the person acted in
accordance with that character. Fed. R. Evid. 404(b)(1). However,
such evidence may be admissible for other purposes, such as proof
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of intent and absence of mistake. Id. 404(b)(2). To be admissible,
Rule 404(b) evidence must (1) be relevant to an issue other than the
defendant’s character, (2) be sufficiently proven to allow a jury to
find the defendant committed the extrinsic act, and (3) possess pro-
bative value that is not substantially outweighed by its undue prej-
udice under Federal Rule of Evidence 403. United States v. Sand-
ers, 668 F.3d 1298, 1314 (11th Cir. 2012). Rule 404(b), however,
“deal[s] with the admission of evidence,” not references to inci-
dents used solely to impeach the defendant. Smalley, 754 F.2d at
951. Rule 608(b), and not Rule 404(b), is implicated where the gov-
ernment does not present extrinsic evidence and simply refers to a
prior bad act to impeach a defendant’s credibility within the scope
of cross-examination. Id.A. Cruz
In Cruz’s case, the district court did not violate Federal Rule
of Evidence 404(b) because there is no evidence the Government
included the full details and contents of the two e-mails in the fo-
rensic laptop report admitted into evidence and given to the jury.
Cruz does not identify any portion of the record that supports his
contention the Government admitted the full details of and attach-
ments to the “emails of interest,” and there is nothing in the record
to support that contention. Rather, the record indicates the Gov-
ernment omitted the two emails’ contents and attachments from
the evidence submitted to the jury and that all parties, and the dis-
trict court, understood that it was omitted.
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14 Opinion of the Court 20-13223
Even if the court had admitted those two emails, Cruz has
not shown their probative value would have been substantially
outweighed by any prejudicial effect they might have had. See
Sanders, 668 F.3d at 1314. Because Cruz does not identify the con-
tent of those emails, his argument the emails were unfairly preju-
dicial is based on little more than speculation. For this reason and
Cruz’s failure to show the emails were actually admitted as evi-
dence at trial, we affirm as to this issue.
B. Dubed
The district court did not violate Federal Rule of Evidence
404(b) by allowing the Government to ask Jorge about the Ken-
tucky credit-card-fraud charge because the Government sought to
do so only for impeachment purposes without presenting extrinsic
evidence. The questioning was directly related to Jorge’s testi-
mony he had never used a skimmer or texted Dubed about skim-
mers and he had never possessed fraudulent or re-encoded access
devices, he had never seen such a device, and he did not know any-
thing about them. Because the Government sought to impeach
Jorge’s credibility and did not seek to present any extrinsic evidence
while doing so, the impeachment implicated Rule 608(b), and not
Rule 404(b). See Smalley, 754 F.2d at 951.
Because Jorge did not object, we review for plain error his
challenge the Government’s cross-examination on whether any-
body had called him a credit card thief violated Rule 404(b). See
United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014)
(stating when a party fails to object, we review the challenge under
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20-13223 Opinion of the Court 15
a plain error standard of review). Jorge has not shown error, much
less plain error, as he has not identified any statute or controlling
precedent that establishes admission of his answers to those ques-
tions was error. See United States v. Schultz, 565 F.3d 1353, 1357
(11th Cir. 2009) (explaining an error is not “plain” unless it is con-
trary to explicit statutory provisions or controlling precedent from
the Supreme Court or our Court). The questioning did not violate
Rule 404(b) because, as with the questioning about the Kentucky
charge, it was permissible under Rule 608(b) for impeachment pur-
poses. See Smalley, 754 F.2d at 951.
Additionally, Jorge specifically requested the admission of
the documentary evidence of the text messages in which his girl-
friend called him a credit card thief. Therefore, he invited any error
as to the admission of that evidence. See United States v. Love, 449
F.3d 1154, 1157 (11th Cir. 2006) (stating we do not review invited
errors—errors that exist because a party’s statements or actions in-
duce the district court into making an error). Accordingly, we af-
firm as to this issue.
III. SENTENCE
Jorge asserts the district court erred by ordering the Federal
Bureau of Prisons (BOP) to award him time-served credit instead
of reducing his sentence. A “defendant shall be given credit toward
the service of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence commences . . . that
has not been credited against another sentence.” 18 U.S.C.
§ 3585(b). In interpreting § 3585(b), the Supreme Court has held
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the Attorney General, through the BOP, is authorized to compute
time-served credit, not the district courts. United States v. Wilson,
503 U.S. 329, 333-35 (1992). Accordingly, a district court cannot
award time-served credit under § 3585(b). Id.
If the district court determines the BOP will not award
time-served credit, the court shall adjust the sentence for any pe-
riod of imprisonment already served on an undischarged term of
imprisonment. U.S.S.G. § 5G1.3(b)(1). District courts must con-
sider § 5G1.3(b)(1), but it is not binding on them. United States v.
Henry, 1 F.4th 1315, 1326 (11th Cir. 2021).
Jorge did not ask the district court to order the BOP to award
him time-served credit but instead sought a sentence adjustment
via § 5G1.3(b). Thus, contrary to the Government’s argument,
Jorge did not invite error. See United States v. Jones, 743 F.3d 826,
828 n.1 (11th Cir. 2014) (explaining we apply the invited-error doc-
trine when a party challenging an action affirmatively asked for it,
not when a party merely fails to object). But because Jorge failed
to object at sentencing to the ruling he now challenges on appeal,
we review for plain error. See Ramirez-Flores, 743 F.3d at 822 (stat-
ing, to establish plain error, an appellant must show (1) an error
occurred; (2) it was plain; (3) it affected his substantial rights; and
(4) it seriously affected the fairness of the judicial proceedings).
Jorge can establish the district court’s order was erroneous
and the error was plain because there is binding precedent that pro-
hibits a district court from awarding time-served credit in the man-
ner the district court did here. See Wilson, 503 U.S. at 333-35;
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Schultz, 565 F.3d at 1357. Nonetheless, Jorge has failed to establish
the error affected his substantial rights or that it seriously affected
the fairness of the judicial proceedings. See Ramirez-Flores, 743
F.3d at 821-22. Specifically, Jorge has not shown the district court
would have reduced his sentence if it had known it could not award
the time-served credit. Jorge relies solely on U.S.S.G. § 5G1.3(b)(1)
for his argument the district court intended he serve a reduced sen-
tence, but that provision allows the court to reduce a sentence for
time served only if it determines the BOP will not credit that time.
Here, not only did the district court not make that finding, it was
clear the district court expected the BOP would provide the credit.
Moreover, Jorge has not established he has been deprived of the
time-served credit. Even if the BOP denies him the credit, he can
seek judicial review of that administrative action after exhausting
his administrative remedies. See Rodriguez v. Lamer, 60 F.3d 745,
747 (11th Cir. 1995) (stating federal offenders seeking credit for
time spent in presentence custody must first exhaust all adminis-
trative remedies through the BOP before seeking review in federal
court). Because Jorge failed to establish the error affected his sub-
stantial rights and seriously affected the fairness of the judicial pro-
ceedings, we affirm as to this issue.
AFFIRMED.