United States v. Wedd ( 2021 )

18-1392-cr
United States v. Wedd
In the
United States Court of Appeals
for the Second Circuit
August Term, 2020
No. 18-1392-cr
UNITED STATES OF AMERICA,
Appellee,
v.
DARCY WEDD,
Defendant-Appellant. ∗
Appeal from the United States District Court
for the Southern District of New York.
No. 1:15-cr-616 — Katherine B. Forrest, Judge.
ARGUED: DECEMBER 10, 2020
DECIDED: APRIL 1, 2021
Before: CABRANES, PARK, and NARDINI, Circuit Judges.
∗
The Clerk of Court is directed to amend the caption as set forth above.
Defendant-Appellant Darcy Wedd appeals from a judgment of
conviction entered on May 3, 2018, following a jury trial in the United States
District Court for the Southern District of New York (Katherine B. Forrest,
J.). Wedd argues that the district court erred by (1) failing to recuse itself
under 28 U.S.C. § 455(a); (2) giving a jury instruction on conscious
avoidance; and (3) allowing the Government to inadequately plead and
prove identity theft under 18 U.S.C. § 1028A. We hold that the district
court’s conduct did not create an appearance of partiality warranting
recusal under Section 455(a). As to the charge, the district court properly
instructed the jury on conscious avoidance because sufficient trial evidence
supported that theory of criminal liability. Finally, we conclude that Wedd’s
conduct, as pled and as proven at trial, fit squarely within the scope of the
aggravated identity theft statute. We therefore AFFIRM the decision of the
district court.
MARC FERNICH, New York, New York, for
Defendant-Appellant.
RICHARD COOPER (Anna M. Skotko, on the brief),
Assistant United States Attorneys, for Audrey
Strauss, Acting United States Attorney for the
Southern District of New York, New York, New
York, for Appellee.
WILLIAM J. NARDINI, Circuit Judge:
This case involves a technological fraud. Defendant-Appellant Darcy
Wedd and his co-conspirators used a computer program to automatically
subscribe cell phone users, without their knowledge or consent, to paid text
2
message services. After two trials resulted in deadlocked juries, the third
trial resulted in a conviction for Wedd.
Wedd now appeals from a judgment of conviction entered May 3,
2018, in the United States District Court for the Southern District of New
York (Katherine B. Forrest, J.). He argues that the district court erred by:
(1) failing to recuse itself under 28 U.S.C. § 455(a) before his third trial;
(2) giving a jury instruction on conscious avoidance; and (3) allowing the
Government to inadequately plead and prove aggravated identity theft
under 18 U.S.C. § 1028A.
We first hold that the district court’s conduct did not create an
appearance of partiality warranting recusal under Section 455(a). Next, we
conclude that the district court properly charged the jury on conscious
avoidance because sufficient trial evidence supported that theory of
criminal liability. We further conclude that Wedd’s indictment adequately
pled violations of Section 1028A and so the district court properly declined
to dismiss the Section 1028A counts. Finally, we conclude that the district
3
court properly denied Wedd’s motion for acquittal because a rational jury
could have concluded beyond a reasonable doubt that his conduct, as
proven at trial, fit squarely within the scope of the aggravated identity theft
statute: By participating in a scheme that employed victims’ cell phone
numbers to sign them up for paid text message services without their
knowledge or consent by means of an auto-subscribing computer program,
Wedd “use[d], without lawful authority, a means of identification of
another person” within the meaning of Section 1028A. We therefore
AFFIRM the judgment of the district court.
I. Background
A. The offense conduct
On June 5, 2017, the Government filed an eight-count superseding
indictment (the “Indictment”) charging Wedd with various crimes
stemming from his role in two schemes to automatically subscribe
4
consumers, without their knowledge or consent, to premium SMS text
messaging services (“PSMS Services”). 1
PSMS Services provide subscribers with recurring cell phone text
messages containing content such as celebrity gossip, IQ quizzes, stock tips,
and daily horoscopes. Subscription results in a regular monthly charge
(typically $9.99) on consumers’ phone bills.
A double opt-in, or two-factor, verification process is designed to
prevent fraud and ensure that only willing consumers pay for subscriptions
to PSMS Services. Consumers typically initiate the subscription process by
entering their telephone number into a website. The consumers then receive
a text message with a verification code, which the consumers enter back into
the website (or confirm by replying to the text message). The consumers
1“SMS” stands for “short message service” and “is what is commonly known as a text
message; although SMS messaging only allows users to send and receive messages of up
to 160 alpha-numeric characters.” United States v. Streett, 363 F. Supp. 3d 1212, 1253 n.28
(D.N.M. 2018) (internal quotation marks and alteration omitted). “SMS” is distinct from
“MMS,” which stands for “multimedia messaging service” and “includes pictures, forty
seconds or less of video, audio, and text messages greater than 160 alpha-numeric
characters in length.” Id. at 1245 n.21.
5
then get a welcome text message and start getting charged for the services.
Both of the schemes at issue here—as described in further detail below—
involved manipulating this verification process to enroll unsuspecting
customers in PSMS Services.
During the period covered by the Indictment, Wedd served as the
Chief Operating Officer and then Chief Executive Officer of a company
called Mobile Messenger. Mobile Messenger was a mobile aggregator—that
is, an intermediary between the digital content providers that market PSMS
Services to consumers and the mobile phone carriers that transmit the
messages to consumers. Mobile aggregators compile consumers’ monthly
PSMS Services charges and bundle them for inclusion on the phone bills sent
by carriers to consumers, receiving approximately 25% of the revenue
generated.
The Indictment alleged that, between 2011 and 2013, Wedd worked
with two sets of content providers—Tatto Media, Inc. (“Tatto”) and certain
companies operated by Wedd’s co-defendant Eugeni Tsvetnenko, also
6
known as “Zhenya”—to bypass 2 the double opt-in verification procedures
using an “auto-subscribing” computer process that made it look as if
consumers had provided consent to PSMS Services. Monthly charges
would then appear on consumers’ bills until the consumers noticed them
and tried to cancel. Cancellation was often difficult.
The first four counts of the Indictment related to the Tatto scheme; the
next four related to the Tsvetnenko scheme. Counts One and Five of the
2 Wedd describes this activity as “spoofing.” See, e.g., Def. Br. at 4, 41-42. That
term dates back to the late 1800s, when an English actor and comedian named Arthur
Roberts devised a game entitled “Spoof.” See Definition of Spoof, MERRIAM WEBSTER,
https://www.merriam-webster.com/dictionary/use. The term acquired a meaning akin to
carrying out a hoax—or, depending on context, engaging in parody. See Spoof: It’s All Fun
and Games Until Somebody Gets Spoofed, MERRIAM WEBSTER, https://www.merriam-
webster.com/words-at-play/spoof-meaning-origin. The word has acquired particular
currency in recent years in connection with e-mail, Medidata Sols., Inc. v. Fed. Ins. Co., 268
F. Supp. 3d 471, 477 (S.D.N.Y. 2017) (defining e-mail “spoofing” as “the practice of
disguising a commercial e-mail to make the e-mail appear to come from an address from
which it actually did not originate” (quotation marks omitted)), aff’d, 729 F. App’x 117 (2d
Cir. 2018), and telephone numbers, United States v. Sayer, 916 F.3d 32, 36 (1st Cir. 2019)
(describing “spoofing” applications on a defendant’s phone that “enabled him to place
outgoing phone calls under the guise of a different phone number”). The term has even
acquired a special meaning in commodities trading fraud. 7 U.S.C. § 6c(a)(5)(C) (defining
“spoofing” under the Commodities Exchange Act as “bidding or offering with the intent
to cancel the bid or offer before execution”). In the interest of precision, we will avoid use
of the term “spoofing” in this opinion.
7
Indictment charged Wedd with conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349. Counts Two and Six charged Wedd with wire
fraud in violation of 18 U.S.C. §§ 1343 and 2. Counts Three and Seven
charged Wedd with aggravated identity theft in violation of 18 U.S.C.
§§ 1028A and 2. Counts Four and Eight charged Wedd with conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956(h).
B. Mistrial after mistrial
On April 3, 2017, a trial began for Wedd and several co-defendants.
The jury deadlocked on all the defendants, so the district court declared a
mistrial on May 3, 2017.
On August 15, 2017, a second trial began for Wedd and one co-
defendant, Fraser Thompson. On September 5, 2017, the jury convicted
Thompson on all counts but again was deadlocked as to the charges against
Wedd. Accordingly, the district court declared a mistrial as to Wedd for the
second time.
8
After the second trial, the district court talked to the jury and reported
to the parties that the vote had been 11-1 in favor of conviction. The district
court later received a letter from a juror in the majority, expressing
frustration with the holdout juror.
C. Wedd’s reassignment request
On the same day that the district court declared the second mistrial,
the court—unprompted—queried whether “either side” might “believe[]
that [it] would benefit from a different judge” for the third trial. App’x at
87. The district court raised the question of presiding over the third trial
itself. See id. (“I would ask that if at this point, given the fact that the Court
has tried this case now twice, I would try the case a third time.”). The court
speculated that “the government may not have agreed with many of my
rulings on allowing in certain things, nor might the defendant” and that
either party “may want . . . [an] opportunity to raise things in front of
another judge.” Id. In the event of a reassignment request, the district court
stated that it would “consult with [its] colleagues” and that “it may be that
9
it would be the right thing to do . . . to put [the case] in the wheel” for
reassignment. Id.
After setting a date for Wedd’s retrial, the district court excused him
and his counsel. The district court proceeded to discuss the upcoming
sentencing of Wedd’s now-convicted co-defendant Thompson and his
counsel, previewing “some of the things that are important to [the court] at
the time of sentencing.” Id. at 89. The district court identified the potential
for recidivism as its “biggest issue” in “sentencing a defendant in a fraud
case,” observing that “[t]here is an extremely high rate of recidivism with
fraud.” Id. The court noted, however, that “of all of the defendants,” it
believed Thompson “was least likely to” recidivate. Id. The court said: “[I]f
I were to rank people in terms of their levels of culpability, he would be at
the very bottom of all of these defendants, . . . and far below Mr. Wedd.” Id.
at 90.
On September 13, 2017, Wedd’s counsel filed a letter asking for a new
judge to preside over the third trial. The letter argued that there was
10
“substantial support for the idea of reassigning a case in the context of a
retrial following appellate reversal, where many of the same considerations
are in play” and that there was “no reason to believe” reassignment would
waste or duplicate judicial resources. No. 15 Cr. 616, Dkt. 497 at 2-3. The
letter added that, if the case were reassigned, “this Court will be free to make
necessary factual determinations in connection with Mr. Thompson’s
sentence, without concern that they may reflect upon the Court’s view of
Mr. Wedd’s alleged involvement.” Id. at 3 (footnote omitted). The
Government opposed the reassignment request “for purposes of judicial
efficiency.” No. 15 Cr. 616, Dkt. 500.
On September 28, 2017, the district court denied the reassignment
request, citing judicial efficiency. At a later pretrial conference, the district
court explained that it had spoken to other judges about the possibility of
reassignment, but none of them had time available in the period previously
discussed for the trial.
11
D. Wedd’s third trial
On December 4, 2017, Wedd’s third trial began. Key testimony for the
Government’s case came from three cooperating witnesses: Tatto co-owner
Lin Miao and Mobile Messenger executives Michael Pajaczkowski and
Erdolo Eromo. Wedd testified in his own defense. The cooperating
witnesses described Wedd as a knowing and active participant in the Tatto
and Tsvetnenko fraud schemes, while Wedd claimed he lacked knowledge
of either scheme.
1. Evidence of Wedd’s knowing participation in the Tatto
scheme
Miao testified that, in 2011, Wedd informed Miao that an internal
Mobile Messenger audit had detected Tatto’s involvement in auto-
subscribing. By email, Wedd told Andrew Bachman, Tatto’s other co-
owner, that Tatto would be suspended from signing up new customers.
Wedd did not, however, require Tatto to stop collecting money from
already-billed subscribers. Nor did Wedd alert law enforcement, phone
carriers, or victim consumers about the detection of fraud.
12
Miao testified that he decided to address the matter with Wedd
“directly.” Tr. at 755. 3 Miao had “a very open conversation” with Wedd in
which Miao admitted Tatto had been auto-subscribing and Wedd “wasn’t
surprised.” Tr. at 759. Miao asked Wedd if Mobile Messenger could help
Tatto with auto-subscribing in exchange for a cut of the scheme’s proceeds.
Wedd agreed, saying “it would be a win for all parties,” and Miao and
Wedd went on to discuss how much money they could make and how to
conceal the fraud. Wedd instructed Miao to speak with Pajaczkowski at
Mobile Messenger about the scheme and, in particular, about how to hide
it.
Pajaczkowski testified that he and Miao then made a deal in which
they would work together to facilitate the auto-subscribing, with a portion
of the proceeds going to Wedd. Pajaczkowski and Wedd talked about
Wedd’s cut, and Wedd said he would like ten percent. Wedd also said that
3 “Tr.” refers to the transcript from Wedd’s third trial.
13
he had separately arranged for Tatto to give him a Rolex watch in exchange
for Mobile Messenger’s auto-subscribing assistance.
Pajaczkowski described how he and another Mobile Messenger
employee gave Tatto lists of phone numbers to be auto-subscribed, as well
as technical advice about how to hide the fraud from phone carriers and
regulators. Pajaczkowski also gave Wedd his share of the proceeds. (The
Government offered detailed financial records showing these payments.)
Pajaczkowski further testified that he and Wedd discussed how much
money they were making through the scheme, as well as “the need to be
very careful with Tatto.” Tatto employees acted recklessly at times. Once,
Tatto auto-subscribed a manager at Verizon, which Pajaczkowski testified
was “the equivalent of selling drugs to [an] undercover cop” and “about as
stupid and as bad as it gets.” Tr. at 295. Mobile Messenger’s relationship
with Tatto continued but, in February 2012, Pajaczkowski stopped giving
Tatto new cellphone numbers (but let Tatto continue defrauding already
auto-subscribed consumers).
14
2. Evidence of Wedd’s knowing participation in the
Tsvetnenko scheme
Eromo testified that, in 2012, Mobile Messenger decided to enter into
a similar auto-subscribing scheme with certain of Tsvetnenko’s content
provider companies, CF Enterprises Pty Ltd and DigiMobi Pty Ltd. Eromo
described a meeting he had with Pajaczkowski and Wedd in which they
discussed possible auto-subscribing partners and agreed to approach
Tsvetnenko.
Pajaczkowski testified that Wedd and Tsvetnenko were “close
personal friends,” and that Wedd knew that Tsvetnenko “had been in
trouble a number of times for conducting auto-subscription schemes in
different countries.” Tr. at 371. Pajaczkowski further testified that he,
Wedd, Eromo, and Thompson discussed how to coordinate the auto-
subscribing scheme with Tsvetnenko and divided up necessary tasks
amongst themselves. Wedd assumed an “oversight” role, and the men
agreed to an even four-way split of the proceeds from the scheme. Tr. at
398-99.
15
Pajaczkowski testified that he obtained phone numbers from Mobile
Messenger’s database to give to Tsvetnenko for auto-subscribing purposes.
In return, Tsvetnenko wired proceeds from the scheme back to
Pajaczkowski and Eromo through shell companies. Pajaczkowski then paid
half of what he received to Wedd, and Eromo paid half of what he received
to Thompson. This scheme continued through the end of 2013.
3. Wedd’s testimony denying his knowing participation
in the schemes
Wedd testified in his own defense, claiming that Pajaczkowski and
Eromo had actually agreed to participate in the fraud without Wedd’s
involvement. Wedd acknowledged that Miao and his business partner had
suggested that Mobile Messenger engage in auto-subscribing with Tatto.
However, Wedd testified that he rejected this idea, telling Miao and his
partner that this conduct was fraudulent and illegal. When Miao and his
partner asked to speak with Pajaczkowksi, Wedd claimed to have
responded, “You can talk to whoever the f[*]ck you want. You’re not auto-
subscribing on my platform.” Tr. at 1599-1600.
16
Wedd further testified that his frequent travels for work kept him
from noticing the fraud schemes. He also claimed that he would never have
agreed to participate in the fraud because it would have endangered his
legitimate business efforts.
4. Wedd’s conviction and sentence
On December 15, 2017, Wedd’s third trial ended with a conviction on
all counts.
On April 2, 2018, the district court sentenced Wedd to concurrent
terms of 72 months in prison on the fraud, conspiracy, and money
laundering counts, as well as mandatory consecutive terms of 24 months in
prison on each of the aggravated identity theft charges. Judgment entered
on May 3, 2018. This appeal followed.
II. Discussion
On appeal, Wedd argues that the district court erred by failing to
recuse itself under Section 455(a) despite his reassignment request; giving a
jury instruction on conscious avoidance; and allowing the Government to
17
inadequately plead and prove aggravated identity theft under Section
1028A. We address each of these arguments in turn.
A. The district court did not err, much less plainly err, in
declining to recuse itself.
Wedd first argues that the district court improperly failed to recuse
itself in violation of 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny
justice, judge or magistrate of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.”
We review a district court’s decision not to recuse itself for abuse of
discretion. See LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007). We
will “rare[ly]” disturb a district court’s decision not to recuse itself. ISC
Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 107 (2d Cir. 2012) (internal
quotation marks omitted).
We evaluate partiality under Section 455(a) “on an objective basis, so
that what matters is not the reality of bias or prejudice but its appearance.”
Liteky v. United States, 510 U.S. 540, 548 (1994); see also Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860 (1988) (“The goal of section 455(a) is to
18
avoid even the appearance of partiality.” (internal quotation marks
omitted)). 4 We consider “whether a reasonable person, knowing all the
facts, would conclude that the trial judge’s impartiality could reasonably be
questioned.” United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996)
(internal quotation marks and alteration omitted). “However, to say that
§ 455(a) requires concern for appearances is not to say that it requires
concern for mirages.” United States v. El-Gabrowny, 844 F. Supp. 955, 961
(S.D.N.Y. 1994) (Mukasey, J.). In close cases, “the balance tips in favor of
recusal.” Ligon v. City of New York, 736 F.3d 118, 124 (2d Cir. 2013) (internal
quotation marks omitted), vacated in part on other grounds, 743 F.3d 362 (2d
Cir. 2014).
For purposes of Section 455(a), “‘[p]artiality’ does not refer to all
favoritism, but only to such as is, for some reason, wrongful or
4In 1974, Congress modified Section 455 to introduce an objective standard. “[T]he pre-
1974 law required a judge to recuse himself only when it was ‘improper, in his opinion, for
him to sit.’” United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000) (emphasis added)
(quoting 28 U.S.C. § 455 (1970)). Under the post-1974 law, “the judge’s own subjective
perception of impropriety is not necessary to invoke the statute.” Id.
19
inappropriate.” Liteky, 510 U.S. at 552. Accordingly, “opinions formed by
the judge on the basis of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings, do not constitute a basis
for a . . . partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Id. at 555; see also
In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943) (“Impartiality is not
gullibility. Disinterestedness does not mean child-like innocence. If the
judge did not form judgments of the actors in those court-house dramas
called trials, [the judge] could never render decisions.”). 5
Ordinarily, Section 455(a) will not require recusal based on “a judge’s
comments during a proceeding that are critical or disapproving of, or even
5Cf. Liteky, 510 U.S. at 550-51 (“The judge who presides at a trial may, upon completion of
the evidence, be exceedingly ill disposed towards the defendant, who has been shown to
be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or
prejudice, since [the judge’s] knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a
bench trial) necessary to completion of the judge’s task. . . . It has long been regarded as
normal and proper for a judge to sit in the same case upon its remand, and to sit in
successive trials involving the same defendant.”).
20
hostile to, counsel, the parties, or their cases.” United States v. Carlton, 534
F.3d 97, 100 (2d Cir. 2008) (internal quotation marks omitted). Partiality
cannot be established through “expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect
men and women, even after having been confirmed as federal judges,
sometimes display.” Liteky, 510 U.S. at 555-56. Moreover, “[a] judge’s
ordinary efforts at courtroom administration—even a stern and short-
tempered judge’s ordinary efforts at courtroom administration—remain
immune” from challenge under Section 455(a). Id. at 556. Thus, “the
standard for establishing a federal judge’s partiality, based on comments
made at trial, is quite difficult for a criminal defendant to meet.” Francolino
v. Kuhlman, 365 F.3d 137, 143 (2d Cir. 2004).
Wedd raises a Section 455(a) argument for the first time in this appeal.
He did seek reassignment below and, in doing so, stated that reassignment
would leave the district court “free to make necessary factual
determinations in connection with Mr. Thompson’s sentence, without
21
concern that they may reflect upon the Court’s view of Mr. Wedd’s alleged
involvement.” 15 Cr. 616, Dkt. 497 at 2-3 (footnote omitted). But Wedd
never argued that the district court, through any of its previous statements
regarding Thompson’s sentencing or any of its other conduct in connection
with the case, had displayed an inability to consider the case impartially.
Nor did Wedd invoke Section 455(a) at all below, or frame his request for
reassignment in any way around an impropriety in the district court
continuing to preside over the case. Accordingly, we review Wedd’s Section
455(a) challenge for plain error. See Carlton, 534 F.3d at 100 (“When [a
recusal] motion was not made below or a new ground for recusal is raised
on appeal, we review a district court’s failure to recuse itself for plain
error.”).
Federal Rule of Criminal Procedure 52(b) “permits an appellate court
to recognize a plain error that affects substantial rights, even if the claim of
error was not brought to the district court’s attention.” United States v.
Boyland, 862 F.3d 279, 288 (2d Cir. 2017) (internal quotation marks omitted).
22
Applying plain error review, the Court may “correct an error not raised at
trial only where the appellant demonstrates” the following:
(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means
it affected the outcome of the district court proceedings; and (4)
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Id. at 288-89 (internal quotation marks and alterations omitted).
We have held that “a judge’s failure to recuse himself might in some
circumstances” constitute plain error. Bayless, 201 F.3d at 128. Here,
however, Wedd fails to satisfy the first prong of the plain error analysis—
the existence of an error. He claims that five aspects of the district court’s
conduct created an appearance of partiality warranting recusal under
Section 455(a). As to all five, whether singly or in combination, we disagree.
First, Wedd stresses that the district court sua sponte raised the
possibility of reassignment. However, nowhere in the district court’s
discussion of reassignment did it display any partiality towards the
Government. Nor can the court’s brief comments be read to suggest that the
23
court itself feared that it harbored feelings of partiality. The district court
simply suggested general reasons why either party might, in the ordinary
course of a mistrial, have a preference for a new judge. The district court
certainly did not suggest that the parties were entitled to one.
Second, Wedd argues that the district court’s brief statement
comparing the culpability of Thompson and Wedd created the appearance
of partiality. But Wedd does not argue, nor does the record suggest, that
the district court formed an opinion of Wedd’s culpability based on
anything other than “facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings.” Liteky, 510 U.S. at 555.
And the district court’s isolated reference to Wedd’s culpability does not
demonstrate “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Id.; cf. Carlton, 534 F.3d at 100 (even after “[h]aving
heard evidence and made a determination of [a] defendant’s guilt in a
revocation hearing, a judge may properly preside over the subsequent
criminal trial for the same offense”); McMahon v. Hodges, 382 F.3d 284, 290
24
(2d Cir. 2004) (even though “the trial judge had undoubtedly formed
opinions about [the defendant’s] likely guilt during the course of [a co-
conspirator’s] trial at which the judge presided,” recusal was not required).
Judges go to great lengths to maintain decorum in the courtroom and,
to the extent possible, to avoid signaling any particular view of an
unconvicted criminal defendant’s guilt. But judges are frequently, and quite
properly, required to make assessments of a defendant’s culpability before
a jury has returned a verdict. For example, judges often must consider the
strength of the evidence against a defendant when considering questions of
detention or release. See 18 U.S.C. § 3142(g)(2) (“The judicial officer shall, in
determining whether there are conditions of release that will reasonably
assure the appearance of the person as required and the safety of any other
person and the community, take into account the available information
concerning . . . the weight of the evidence against the person . . . .”); see also
United States v. Orena, 986 F.2d 628, 631-33 (2d Cir. 1993) (reversing district
court’s decision to release defendant from pretrial detention where strong
25
evidence ”demonstrated” defendant’s key role in violent criminal
organization).
Assessments of culpability can also become necessary mid-trial. We
have instructed district judges that before admitting statements of a co-
conspirator, they must make certain factual findings by a preponderance of
the evidence that may indicate the defendant’s guilt of the charged offense.
United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969); see United States v.
Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993) (“[S]tatements that would otherwise
be hearsay are admissible under Fed. R. Evid. 801(d)(2)(E) as statements of
coconspirators only on the condition that a preponderance of the evidence
establishes that a conspiracy existed, that the defendant and declarant were
members, and that the statements were made during the course of and in
furtherance of the conspiracy.”). On occasion, that may also entail a finding
by the judge that a yet-to-be-tried co-defendant was, in fact, a member of
26
the charged conspiracy. 6 Such a finding, as a rule, should be made outside
the presence of the jury. See Tracy, 12 F.3d at 1200.
Here, the district court’s comments were made in the context of a
convicted co-defendant’s impending sentencing. In multi-defendant cases,
judges are often called upon to sentence one or more co-defendants while
others are still awaiting trial. Questions of relative culpability may
sometimes be unavoidable, particularly when the defendant being
sentenced claims to have played a lesser role in an overall conspiracy. See
U.S.S.G. § 3B1.2. A judge cannot be said to have manifested partiality
simply by expressing a view of a particular defendant’s culpability based on
information that has been presented to the court That is precisely what the
district court did here.
6 Of course, a co-conspirator statement is admissible if it was made pursuant to any
conspiracy, whether charged or uncharged. See United States v. Maldonado-Rivera, 922 F.2d
934, 962 (2d Cir. 1990) (“Though . . . Fed. R. Evid. 801(d)(2)(E) requires proof that both the
declarant and the party against whom a declaration is offered be members of the same
conspiracy, it does not require that the conspiracy be one charged in the indictment.”
(citation omitted)).
27
Third, Wedd attempts to identify partiality in (1) the fact that the
district court spoke with the second jury after declaring a mistrial as to
Wedd and (2) the fact that the district court later received a note from a juror,
with both events assertedly having revealed that the jury’s views largely
favored the Government’s case. We do not follow Wedd’s logic. The district
court’s mere awareness of the jury’s views does not suggest that the district
court adopted such views itself.
Fourth, Wedd points to the district court’s statement, made in
connection with his co-defendant Thompson’s upcoming sentencing, that
there is a high recidivism rate associated with fraud. This innocuous
statement, made while addressing a co-defendant convicted of fraud, had
no bearing on whether the court would be able to preside impartially over
a fraud trial for a separate defendant.
Fifth and finally, Wedd claims that the district court’s evidentiary
rulings created the appearance of partiality. Even where a district court errs
in one or more of its evidentiary rulings, “judicial rulings alone almost never
28
constitute a valid basis for a . . . partiality motion”; flawed rulings are
“[a]lmost invariably . . . proper grounds for appeal, not for recusal.” Liteky,
510 U.S. at 555; see United States v. Colon, 961 F.2d 41, 44 (2d Cir. 1992)
(“[E]arlier adverse rulings, without more, do not provide a reasonable basis
for questioning a judge’s impartiality.”). 7 Moreover, Wedd does not even
identify a flawed aspect of the district court’s evidentiary rulings. While he
nominally challenges the district court’s decision not to admit his travel
records under Federal Rule of Evidence 807, the trial record makes clear that
Wedd failed to provide notice to the Government—which is a requirement
for admission of evidence under Rule 807. See United States v. Morgan, 385
F.3d 196, 208 (2d Cir. 2004) (statement will be admitted under Rule 807 only
if “its proffer follows adequate notice to the adverse party” (internal
quotation marks omitted)). Wedd also cries foul based on the zeal with
7 Cf. S.E.C. v. Razmilovic, 738 F.3d 14, 30 (2d Cir. 2013), as amended (Nov. 26, 2013)
(“[A]lthough . . . errors occurred when the court ruled on two motions before they were
fully submitted, we see no objective basis for attributing those errors to bias. Judges are
human. Errors are made; some are corrected; some are not, but are harmless. Few are
attributable to bias.”).
29
which the district court enforced an evidentiary ruling (which, incidentally,
he does not challenge) that neither party alert the jury to the prior trials. But
a court’s careful enforcement of its rulings does not reflect partiality.
Accordingly, we find no error, let alone plain error, in the district
court’s purported failure to recuse itself under Section 455(a).
B. The district court properly instructed the jury on conscious
avoidance.
Wedd next challenges the district court’s decision to give a conscious
avoidance jury instruction over his objection. Wedd does not challenge the
charge’s content or wording; rather, he argues that the evidence presented
at trial did not provide a basis for the charge.
The Court reviews “a claim of error in jury instructions de novo,
reversing only where, viewing the charge as a whole, there was a prejudicial
error.” United States v. Ebbers, 458 F.3d 110, 124 (2d Cir. 2006) (internal
quotation marks omitted). “We . . . will not vacate a conviction due to an
erroneous jury charge if the error was harmless.” United States v. Skelos, 2021
WL 683998, at *5 (2d Cir. Feb. 23, 2021).
30
“The doctrine of conscious avoidance (i.e., willful blindness) prevents
defendants from avoiding criminal liability by deliberately shielding
themselves from clear evidence of critical facts that are strongly suggested
by the circumstances and that, if known, would render them guilty of a
crime.” United States v. Gatto, 986 F.3d 104, 122 (2d Cir. 2021) (internal
quotation marks omitted). “A conscious avoidance jury charge permits a
jury to find that a defendant had culpable knowledge of a fact when the
evidence shows that the defendant intentionally avoided confirming the
fact.” Id. (internal quotation marks omitted).
A district court may provide a conscious avoidance jury instruction
only if two requirements are satisfied: “(1) the defendant asserts the lack of
some specific aspect of knowledge required for conviction and (2) the
appropriate factual predicate for the charge exists, i.e. the evidence is such
that a rational juror may reach the conclusion beyond a reasonable doubt
that the defendant was [(a)] aware of a high probability of the fact in dispute
and [(b)] consciously avoided confirming that fact.” United States v. Goffer,
31
721 F.3d 113, 126-27 (2d Cir. 2013) (internal quotation marks and alteration
omitted). Here, the district court properly gave the conscious avoidance
charge because the evidence presented at trial satisfied both requirements.
As to the first requirement of asserted ignorance, Wedd repeatedly
claimed that he was unaware of the auto-subscribing fraud.
As to the second requirement—that the defendant was “[(a)] aware of
a high probability of the fact in dispute and [(b)] consciously avoided
confirming that fact,” Id. at 127 (internal quotation marks omitted)—both
components were satisfied here. The Government presented ample
evidence that Wedd was alerted to the high probability of auto-subscribing,
including: (1) Wedd’s audit determined that Tatto was auto-subscribing; (2)
Wedd knew that Tsvetnenko had previously been involved in auto-
subscribing; (3) Miao directly admitted the fraud to Wedd (as even Wedd
conceded in his testimony); and (4) Wedd received payouts as Tatto and
Tsvetnenko continued to use Mobile Messenger’s platform to auto-
subscribe. Trial evidence likewise supported a conclusion that Wedd took
32
steps to avoid confirming the truth, including that Wedd instructed
potential auto-subscribing partners to coordinate details of the schemes
with his underlings, which a jury could construe as an active attempt to
insulate himself from discussions which he knew would involve direct
acknowledgement of the fraud. 8 Moreover, Wedd never discussed the
results of his internal audit—or Miao’s auto-subscribing admission—with
consumers or law enforcement.
As our precedent shows, in sufficiently suspicious circumstances, a
mere failure to ask questions—even absent more affirmative steps of
avoidance—can demonstrate conscious avoidance. See United States v.
Kozeny, 667 F.3d 122, 134 (2d Cir. 2011) (“[C]onscious avoidance may be
established where[] a defendant’s involvement in the criminal offense may
have been so overwhelmingly suspicious that the defendant’s failure to
8Evidence of this conduct included: (1) Miao’s testimony that Wedd instructed Miao to
coordinate details of auto-subscribing with Pajaczkowski; (2) Wedd’s own admission that,
even while personally refusing to participate in the auto-subscribing fraud, he told Miao
that he could speak with Pajaczkowski; and (3) Wedd’s testimony that he gave
Pajaczkowski a great deal of discretion.
33
question the suspicious circumstances establishes the defendant’s
purposeful contrivance to avoid guilty knowledge.” (internal quotation
marks and alteration omitted)). The circumstances in this case were
enormously suspicious, as Wedd was receiving large payouts while a
company that he knew had engaged in auto-subscribing continued to use
his platform. And Wedd’s conduct in this case went beyond a mere failure
to ask questions; as noted above, trial evidence supported a conclusion that
he took active, affirmative steps to avoid confirming the fraud.
Moreover, even if the district court had given the conscious avoidance
charge in error, the error would be harmless in this case. “[A]n unwarranted
conscious avoidance instruction is harmless error where there is
overwhelming evidence of actual knowledge.” United States v. Aina-
Marshall, 336 F.3d 167, 171 (2d Cir. 2003) (internal quotation marks omitted).
Here, the Government presented precisely such overwhelming evidence of
Wedd’s actual knowledge, including financial records tracing payments to
Wedd and detailed, consistent testimony of Wedd’s co-conspirators. For
34
example, Miao testified to having very open conversations with Wedd
about engaging in the auto-subscribing scheme together, including
discussions about how to avoid detection. Pajaczkowski also testified to
speaking with Wedd directly about the schemes, including discussions
about how to keep auto-subscribing partner Tatto under control.
Pajaczkowski further testified to attending a meeting with Wedd and others
as they divided up responsibilities for the Tsvetnenko scheme. And Eromo
testified to openly discussing the Tsvetnenko auto-subscribing scheme with
Wedd. In light of this overwhelming evidence of actual knowledge, even
an erroneous conscious avoidance charge would not warrant a new trial. 9
We therefore reject Wedd’s challenge to the conscious avoidance jury
charge.
9 As we have previously made clear, “[t]he government need not choose between an
‘actual knowledge’ and a ‘conscious avoidance’ theory” and may offer both at trial. United
States v. Ferguson, 676 F.3d 260, 278 (2d Cir. 2011) (quoting United States v. Kaplan, 490 F.3d
110, 128 n.7 (2d Cir. 2007)).
35
C. The Government properly pled and proved aggravated
identity theft.
Wedd finally argues that the Government improperly pled
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) and that the
evidence offered at trial was insufficient to support a conviction on Counts
Three and Seven. Although Wedd treats these two issues as largely
indistinguishable, the pleading standard for an indictment is entirely
separate from the evidentiary standard at trial, and therefore we address
each in turn.
1. The Indictment properly alleged aggravated identity
theft.
An indictment is sufficient as long as it (1) “contains the elements of
the offense charged and fairly informs a defendant of the charge against
which he must defend,” and (2) “enables [the defendant] to plead an
acquittal or conviction in bar of future prosecutions for the same offense.”
United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (internal quotation
marks omitted). “[A]n indictment need do little more than to track the
36
language of the statute charged and state the time and place (in approximate
terms) of the alleged crime.” Id.
Wedd’s Indictment easily meets these basic requirements. Section
1028A(a)(1) provides as follows:
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses,
or uses, without lawful authority, a means of identification of
another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2
years.
Correspondingly, Count Three of the Indictment states in relevant part:
From in or about 2011, up to and including in or about 2013, in
the Southern District of New York and elsewhere, [Wedd and
his co-defendants], during and in relation to a felony
enumerated in Title 18, United States Code, Section 1028A(c),
to wit, the wire fraud offense alleged in Count Two, did
knowingly transfer, possess, and use, without lawful authority,
a means of identification of another person, to wit, [Wedd and
his co-defendants] used the telephone numbers of consumers
without authorization as part of their fraudulent auto-
subscribing scheme.
(Title 18, United States Code, Sections 1028A & 2.)
App’x at 61-62. Count Seven is similar, varying only with respect to the
dates, the defendants, and the predicate wire fraud offense (Count Six). This
37
language plainly tracks the text of Section 1028A and identifies the
approximate time and place of the alleged crime. See Alfonso, 143 F.3d at
776.
In arguing that the Indictment remains nonetheless inadequate,
Wedd maintains that the specific conduct referenced therein—the auto-
subscribing scheme—did not involve a “use[]” of “a means of
identification” for purposes of Section 1028A. To be sure, the Indictment
does not detail the specific facts of the underlying schemes or precisely how
Wedd and his co-defendants “use[d]” consumers’ telephone numbers. But
there is no requirement that an indictment contain such detail. At the
indictment stage, we do not evaluate the adequacy of the facts to satisfy the
elements of the charged offense. That is something we do after trial.
We have previously explained that “summary judgment does not
exist in federal criminal procedure.” United States v. Sampson, 898 F.3d 270,
282 (2d Cir. 2018). “Unless the government has made what can fairly be
described as a full proffer of the evidence it intends to present at trial . . . ,
38
the sufficiency of the evidence is not appropriately addressed on a pretrial
motion to dismiss an indictment.” Alfonso, 143 F.3d at 776-77. The district
court must give the Government an opportunity to “make a detailed
presentation of the entirety of the evidence before . . . dismiss[ing] an
indictment on sufficiency grounds,” and the district court lacks the
authority “to require the government, before trial, to make such a
presentation” as this “could effectively force a summary judgment-like
motion on the government.” Sampson, 898 F.3d at 282 (internal quotation
marks omitted).
In this case, the Government never purported to make “a full proffer
of the evidence it intend[ed] to present at trial.” Alfonso, 143 F.3d at 776.
Accordingly, there is no merit in Wedd’s argument that the district court
should have looked beyond the four corners of the Indictment to evaluate
the adequacy of its aggravated identity theft pleading. We hold that the
district court properly denied Wedd’s motion to dismiss the Indictment as
to the Section 1028A counts.
39
2. The Government properly proved aggravated identity
theft.
After the conclusion of evidence, Wedd moved for a judgment of
acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on
the theory that, because the consumers’ phone numbers originally came to
Mobile Messenger’s database legitimately, subsequent charges resulting
from auto-subscribing could not constitute “use[]” of those numbers for
purposes of Section 1028A. The district court denied the motion, concluding
there was a sufficient basis for the jury to determine that aggravated identity
theft had been proven beyond a reasonable doubt.
We construe this challenge on appeal as one based on sufficiency of
the evidence. This Court reviews de novo “a challenge to the sufficiency of
evidence supporting a criminal conviction,” United States v. Geibel, 369 F.3d
682, 689 (2d Cir. 2004), and will affirm if, ”after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Aquart, 912
40
F.3d 1, 17 (2d Cir. 2018). De novo review similarly applies to “district court
interpretations of . . . federal statutes.” United States v. Henry, 888 F.3d 589,
602 (2d Cir. 2018).
Wedd argues once again that the offense conduct as proved at trial—
that is, a scheme to defraud by means of auto-subscribing unknowing
consumers—cannot constitute a “use[]” of “a means of identification” for
purposes of Section 1028A. Wedd does not dispute that consumers’ phone
numbers—which the fraudsters entered into the auto-subscribing computer
program—are “means of identification,” so the only issue is whether the
fraudsters “use[d]” the numbers within the meaning of the aggravated
identity theft statute. 10
The Government contends that “use[]” ought to be given its ordinary
meaning. See Smith v. United States, 508 U.S. 223, 228 (1993) (“When a word
10See United States v. Dumitru, No. 19-1486-CR, 2021 WL 1080833, at *4 (2d Cir. Mar. 22,
2021) (“We have not had occasion to determine the precise bounds of the aggravated
identity theft statute, and we need not do so here because [the defendant’s] actions would
fall within those bounds even under a narrow view of the proscribed conduct. “).
41
is not defined by statute, we normally construe it in accord with its ordinary
or natural meaning.”).
We agree. Our analysis begins with the text of the statute. See, e.g.,
United States v. Al Kassar, 660 F.3d 108, 124 (2d Cir. 2011). Section 1028A
proscribes the “knowingly transfer[,] possess[ion,] or use[,] without lawful
authority, [of] a means of identification of another person,” in connection
with certain predicate crimes. 18 U.S.C. § 1028A. In interpreting a statute,
this Court gives “the statutory terms their ordinary or natural meaning.”
United States v. Lockhart, 749 F.3d 148, 152 (2d Cir. 2014) (internal quotation
marks omitted). The dictionary definition of “use” is, in relevant part, “to
put into action or service,” “to avail oneself of,” or to “employ.” See
Definition of Use, MERRIAM WEBSTER, https://www.merriam-
webster.com/dictionary/use; Oxford English Dictionary Online (2020) (“The
act of putting something to work, or employing or applying a thing, for any
. . . purpose”); see also Black's Law Dictionary (11th ed. 2019) (defining “use”
as “[t]o employ for the accomplishment of a purpose; to avail oneself of”).
42
We recently relied on the “ordinary, natural, everyday meaning” of
“use” in defining “use of physical force,” reasoning that “‘use’ requires only
that a person make use of the violent force, convert such force to one’s
service, employ it, avail oneself of it, utilize it, carry out a purpose or action
by means of it, or derive service from it.” United States v. Scott, 2021 WL
786632, at *8 (2d Cir. Mar. 2, 2021) (en banc) (internal quotation marks and
alterations omitted). We observed that the definition of “use” is
“expansive” and that, “when Congress employs the word ‘use’ in a statute,
its intent is to sweep broadly and not to cabin legislation only to those uses
that most immediately come to mind or that manifest a defendant’s active,
i.e., physical, use.” Id. (internal quotation marks and alterations omitted).
Drawing upon the ordinary and natural meaning of the statutory text, as
well as our recent decision in Scott, we conclude that to “use” a means of
identification in this setting is to employ or to avail oneself of a means of
identification for a particular purpose.
43
We think the statutory context supports this interpretation of “use”
as it pertains to a “means of identification” for unlawful purposes. Section
1028A(a)(1) criminalizes the knowing and unauthorized use of a means of
identification “during and in relation to” certain enumerated felonies. The
language “during and in relation to” connotes causation. “The salient
point,” as the Sixth Circuit has put it, “is whether the defendant used the
means of identification to further or facilitate the . . . fraud.” United States v.
Michael, 882 F.3d 624, 628 (6th Cir. 2018); see also United States v. Munksgard,
913 F.3d 1327, 1334–35 (11th Cir. 2019) (citing Michael to conclude the same).
Here, the evidence presented at trial proved that Wedd and others
schemed to employ consumers’ phone numbers and, through the auto-
subscribing program, to cause them to pay for text message services without
their knowledge or consent. The victim consumers’ phone numbers plainly
facilitated the fraudulent schemes in which Wedd participated. Put another
way, Wedd employed the phone numbers during and in relation to the
predicate schemes to defraud by means of auto-subscribing. Wedd’s
44
conduct thus falls within this ordinary and natural meaning of the term
“use,” particularly when understood in its statutory context and in the light
of relevant precedent and caselaw. In sum, Wedd unlawfully “use[d]” the
telephone numbers of victims within the meaning of Section 1028A(a)(1). 11
In arguing for a more restrictive definition of the term “use” (the
precise contours of which Wedd does not elucidate), Wedd cites First and
Sixth Circuit decisions concluding that, to “use[]” a person’s “means of
identification” under Section 1028A, a defendant must make some effort to
impersonate the person in question. See United States v. Berroa, 856 F.3d 141,
156 (1st Cir. 2017) (“[W]e read the term ‘use’ to require that the defendant
attempt to pass him or herself off as another person or purport to take some
11Our conclusion that Wedd’s participation in the auto-subscribing schemes falls within
the ordinary and natural construction of “use” is consistent with the application of Section
1028A to similar conduct in another case (although the statutory construction was not
expressly at issue). See United States v. Greenberg, 835 F.3d 295 (2d Cir. 2016). In Greenberg,
the victim customers’ credit card information was retained after they made a purchase
and they were charged for joining a frequent shopper club, even though they had never
joined such a club or had never received promotion emails or other communications
concerning such a club. Id. at 298–99. The district court’s application of Section 1028A in
that case was unquestioned on appeal.
45
other action on another person’s behalf.” (footnote omitted)); United States
v. Miller, 734 F.3d 530, 541-42 (6th Cir. 2013) (finding “reasonable” the
defendant’s argument that his “conduct does not constitute ‘use’ of [other
people’s] names because he did not steal or possess their identities,
impersonate them or pass himself off as one of them, act on their behalf, or
obtain anything of value in one of their names”(footnote omitted)).
We decline to adopt such a restrictive definition of “use.” As we
explain above, the text, the ordinary and natural meaning, and the statutory
context do not support a construction of “use” that requires impersonation.
Further, insofar as Wedd relies on Miller to argue for this restrictive
definition (upon which the First Circuit’s decision in Berroa likewise relies),
his reliance is misplaced. In Miller, the Sixth Circuit considered whether
“signing a document in [the defendant’s] own name which falsely stated
that [other people] gave him authority, as [an LLC’s] managing member, to
act on behalf of [the LLC] and pledge its property” constituted the “use” of
a means of identification within the meaning of Section 1028A. Id. at 542.
46
The Sixth Circuit concluded this conduct did not constitute a “use,”
reasoning that “[n]othing inherent in the term ‘uses,’ its placement in the
text of § 1028A, or the statute’s legislative history clearly and definitely
indicates that the term, as applied to the names of persons, is broad enough
to reach the mere act of saying that the persons did something they in fact did not
do.” Id. (emphasis added).
But, unlike the defendant in Miller, Wedd was not charged with the
“mere act of saying that the persons did something they in fact did not do.”
Id. Rather, the schemes to defraud in which Wedd participated involved
enrolling victims, without their consent or knowledge, for paid text message
services by means of auto-subscribing.
Moreover, the Sixth Circuit itself subsequently made clear that Miller
did not establish a requirement “that a defendant impersonate someone
else. . . .” United States v. Michael, 882 F.3d 624, 628 (6th Cir. 2018). In that
later case, the Sixth Circuit gave “use” a “fairly straightforward”
construction, as we have done here, holding that “[t]o ‘use’ a means of
47
identification in this setting is ‘[t]o convert to one’s service’ or ‘to employ’
the means of identification.” Id. at 626 (citing a number of dictionaries). 12 In
so holding, the Sixth Circuit expressly rejected the defendant’s argument
that “that the statutory object of the sentence, using a ‘means of
identification’ for fraudulent purposes, . . . confines the coverage of the law
only to impersonations.” Id. at 627.
Accordingly, insofar as Wedd’s challenge to his convictions for
Counts Three and Seven is based on the sufficiency of the evidence, we reject
it. There was more than sufficient evidence for a rational factfinder to
conclude that Wedd was aware of, facilitated, and participated in the auto-
subscribing schemes and that he, in fact, received the proceeds from those
schemes over several years. In short, we hold that there was sufficient
12As the Sixth Circuit went on to explain, the language of Section 1028A “no doubt covers
impersonations, and impersonations may well have been one of the targets, perhaps even
the principal target, of this sentencing-enhancement statute. But it is not unusual for the
words of laws to go beyond the central, even the sole, motivation for enacting them.”
Michael, 882 F.3d at 627. “[O]nly the words of a law, not the motivations of its authors,
may cabin (or for that matter extend) its reach.” Id.
48
evidence for a rational jury to find Wedd guilty beyond a reasonable doubt
of violating Section 1028A.
Wedd argues that, in the alternative, if his conduct constitutes a
“use[]” under § 1028A, then the statute is unconstitutionally vague. But
Wedd’s case does not require the Court to define the outer limits of the term
“use[],” as Wedd’s conduct falls squarely within both the plain dictionary
definition of the term. And “a plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law as applied
to the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18-
19 (2010) (internal quotation marks and alteration omitted).
Accordingly, we hold that the district court properly denied Wedd’s
motion to enter a judgment of acquittal on the Section 1028A counts.
III. Conclusion
In sum, we hold as follows:
1. The district court did not err, much less plainly err, in not recusing
itself from Wedd’s retrial pursuant to 28 U.S.C. § 455(a). The district court’s
brief comment on Wedd’s relative culpability was based on information it
49
learned during the course of proceedings and therefore did not create an
appearance of partiality.
2. The district court properly instructed the jury on conscious
avoidance because sufficient trial evidence supported that theory of
criminal liability.
3. The district court properly denied the motion to dismiss Counts
Three and Seven. The Indictment adequately pled a violation of 18 U.S.C.
§ 1028A because it tracked the statutory text of the charged offense and
stated the approximate time and place of the alleged crime.
4. The district court properly denied the motion for a judgment of
acquittal on Counts Three and Seven. There was sufficient evidence for a
rational jury to conclude beyond a reasonable doubt that Wedd violated 18
U.S.C. § 1028A because, by employing victims’ phone numbers during and
in relation to the auto-subscribing schemes to subscribe them to text
message services without their knowledge or consent, Wedd “use[d],
without lawful authority, a means of identification of another person.”
50
We therefore AFFIRM the judgment of the district court.
51