United States v. Wilson , 512 F. App'x 75 ( 2013 )

11-5057-cr
United States v. Wilson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of February, two thousand thirteen.
PRESENT: PETER W. HALL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 11-5057-cr
ISABEL WILSON,
Defendant - Appellant.
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FOR APPELLANT: THEODORE S. GREEN, Green & Willstatter, White Plains,
New York
FOR APPELLEES: DOUGLAS B. BLOOM, Assistant United States Attorney
(Jennifer G. Rodgers, Assistant United States Attorney, on the
brief), for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New York.
Appeal from the United States District Court for the Southern District of New York
(Vincent L. Briccetti, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of conviction of the district court is AFFIRMED in part and
REVERSED in part. The judgment of the district court is VACATED and the case is
REMANDED for resentencing.
Defendant-Appellant Isabel Wilson appeals from a judgment of conviction entered
on November 23, 2011, in the United States District Court for the Southern District of New
York, following a two-week trial before a jury and the Honorable Vincent L. Briccetti,
United States District Judge. The jury found Wilson guilty of: access device fraud, in
violation of 18 U.S.C. § 1029(a)(5) (Count One); one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A (Count Two); use of a passport obtained by fraud, in
violation of 18 U.S.C. § 1542 (Count Three); use of a Social Security number assigned on
the basis of false information, in violation of 42 U.S.C. § 408(a)(7)(A) (Count Five); three
counts of making false statements to federal officers, in violation of 18 U.S.C. § 1001(a)
(Counts Six, Seven, and Eight); and making a false claim of United States citizenship, in
violation of 18 U.S.C. § 911 (Count Nine). In an opinion filed today, we reverse Wilson’s
conviction on Count Five. This order addresses Wilson’s remaining arguments on appeal.
We assume the parties’ familiarity with the facts, procedural history, and specification of
issues for review, which we reference only as necessary to explain our decision supporting
this order. The facts dealing with Count Five are set out more extensively in the
accompanying opinion.
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(1)
Wilson argues that the district court improperly denied her motions pursuant to
Federal Rules of Criminal Procedure 8(a) and 14 seeking severance of various counts of
the Superseding Indictment for trial. Specifically, Wilson argues that the indictment
should have been broken into four groups with: (a) Counts One, Two and Four, (b) Count
Three, (c) Count Six, and (d) the remaining counts, each tried separately. Wilson’s
arguments are without merit.
We review de novo a district court’s denial of a Rule 8 misjoinder motion. United
States v. Litwok, 678 F.3d 208, 216 (2d Cir. 2012). In reviewing a district court’s denial
of a motion to sever under Rule 8(a), this Court undertakes “a twofold inquiry: whether
joinder of the counts was proper, and if not, whether misjoinder was prejudicial to the
defendant.” Id. (internal quotation marks omitted) We have interpreted Rule 8(a) as
providing a liberal standard for joinder of offenses. See United States v. Turoff, 853 F.2d
1037, 1042 (2d Cir. 1988). Thus joinder under Rule 8(a) is appropriate where the counts
are of the same or similar character, that is, “having a general likeness to each other.”
United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (internal quotation marks
omitted).
We find no Rule 8(a) error because all of the offenses charged are of a similar
character in that Wilson dishonestly represented her identity in order to gain benefits to
which she might not have otherwise been entitled. In addition, Counts One, Two, Three,
and Six were properly joined because those counts constitute parts of a common scheme
or plan. See United States v. Amato, 15 F.3d 230, 237 (2d Cir. 1994).
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Where counts are properly joined under Rule 8, the district court retains discretion
to sever them to prevent prejudice to a defendant or the government pursuant to Rule 14.
We review a district court’s denial of a Rule 14 severance motion for abuse of discretion.
United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011). Indeed, in view of the strong
preference for single trials of properly joined counts, see Richardson v. Marsh, 481 U.S.
200, 210 (1987), a district court’s denial of a Rule 14 motion is “virtually unreviewable,”
United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (internal quotation marks
omitted). Because we cannot find that the addition of a series of essentially minor
charges onto the identity theft counts at the heart of the indictment could have caused
substantial prejudice amounting to a miscarriage of justice, see Page, 657 F.3d at 129, we
find no abuse of discretion here.
(2)
Wilson contends that Count Three fails to the state a crime of passport fraud
because the fraudulently obtained passport was not alleged to have been used in
connection with travel. We disagree.
We review a district court’s statutory interpretation de novo. United States v.
Rood, 281 F.3d 353, 355 (2d Cir. 2002). In interpreting a statute, we begin, “as always,
with the language of the statute.” United States v. Reich, 479 F.3d 179, 187 (2d Cir.
2007) (internal quotation marks omitted). If the statute’s language is unambiguous, our
inquiry ends. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
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Section 1542 proscribes the “use[] or attempt[] to use . . . any passport the issue of
which was secured in any way by reason of any false statement.” 18 U.S.C. § 1542. The
statute does not refer to travel. We need not decide on the facts of this case whether there
are any limits on the ways in which a fraudulently obtained passport may be “used” in
violation of the statute. Assuming arguendo that Wilson is right that the statute only
prohibits use of a passport in ways that are consonant with the ordinary functions of a
passport, we think it clear that passports are commonly used, and are issued to be used,
not only in connection with international travel, but also for such purposes as
identification and proof of citizenship. Where, as here, a fraudulently obtained passport is
used for purposes of identification (in this case, to open a post office box that was used in
connection with the underlying credit card scheme), such use is covered by the statute’s
plain language. See Browder v. United States, 312 U.S. 335, 340 (1941).
(3)
Wilson argues that venue for Count Six, which charged Wilson with making a
false statement to a United States Secret Service agent in violation of 18 U.S.C.
§ 1001(a), does not lie within the Southern District of New York.
The government bears the burden of proving that venue is proper. United States v.
Beech-Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir. 1989). Because the venue
requirement is not an element of the offense, however, venue need only be proved by a
preponderance of the evidence. United States v. Ramirez, 420 F.3d 134, 139 (2d Cir.
2005). We review the sufficiency of evidence regarding venue in the light most favorable
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to the government, “credit[ing] every inference that could have been drawn in its favor.”
United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir. 1994).
Where a statement is made in one jurisdiction and relied upon in another, “the
materiality requirement proves dispositive with respect to venue.” United States v.
Coplan, 703 F.3d 46, 79 (2d Cir. 2012). “Under [18 U.S.C.] § 1001[(a)], a statement is
material if it has a natural tendency to influence, or [be] capable of influencing, the
decision of the decisionmaking body to which it was addressed, or if it is capable of
distracting government investigators’ attention away from a critical matter.” United
States v. Adekanbi, 675 F.3d 178, 182 (2d Cir. 2012) (second alteration in original)
(internal quotation marks and citation omitted).
When Secret Service Agents arrived to arrest Wilson at her home in New Jersey,
Wilson told agents that her name was Edna and stated that the agents could find Isabel
Wilson in Kingston, New York, some 150 miles away. Agents then left Wilson’s home
and returned to White Plains. Later that day, Secret Service returned to New Jersey and
placed Wilson under arrest. On this record, the properly instructed jury was entitled to
conclude, on a preponderance of the evidence, that Wilson’s false statements to agents in
New Jersey were “capable of distracting government investigators’ attention away from a
critical matter” in the Southern District of New York, where they undertook to decide
what steps to take to execute the arrest warrant. Id. Accordingly, we decline to overturn
the jury’s finding that venue was properly laid in the Southern District.
* * * * *
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We have considered Wilson’s remaining arguments and find them to be
without merit. For the foregoing reasons, Wilson’s conviction on all counts except Count
Five is AFFIRMED. For the reasons set forth in the accompanying opinion, the
conviction on Count Five is REVERSED, the judgment of the district court is
VACATED, and the case is REMANDED for resentencing.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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