United States v. John Doe ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4338
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DOE, a/k/a Cheyenne Moody Davis,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:17-cr-00054-ELH-1)
Submitted: January 30, 2019 Decided: February 15, 2019
Before FLOYD, THACKER, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joanna Silver, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland; Nita Rao, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellant. Robert K. Hur, United States Attorney, Zachary A.
Myers, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant appeals from his convictions for passport fraud, social security number
fraud, aggravated identity theft, and voter fraud. On appeal, he challenges the jury
instructions on the “lawful authority” element of aggravated identity theft. He also
asserts that the district court erred by failing to further define “reasonable doubt” after the
jury asked for a legal definition. We affirm.
“‘The decision to give or not to give a jury instruction is reviewed for an abuse of
discretion.’” United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting United
States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)). “‘We review a jury
instruction to determine whether, taken as a whole, the instruction fairly states the
controlling law.’” Id. (quoting Moye, 454 F.3d at 398). We apply “‘harmless-error
analysis to cases involving improper instructions.’” United States v. White, 810 F.3d 212,
221 (4th Cir. 2016) (quoting Neder v. United States, 527 U.S. 1, 9 (1999)). An error is
harmless if “it is ‘clear beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error.’” Id. (quoting Neder, 527 U.S. at 18 (brackets
omitted)).
Appellant does not dispute that the challenged instruction correctly stated the
controlling law. Instead, he argues that the portion of the court’s instruction stating that
consent does not convey legal authority was improper, because there was no evidence to
support a conclusion that Appellant acquired an identity with consent. Thus, Appellant
contends that the court’s instruction improperly injected a possible fact.
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However, in Moye, we specifically distinguished between an instruction that
misstates the law and one that presents a theory of conviction not supported by the
evidence. 454 F.3d at 400. We noted that, although “[j]urors are not generally equipped
to determine whether a particular theory of conviction . . . is contrary to the law,” jurors
are “well equipped to analyze the evidence” and recognize factually inadequate theories.
Id. Thus, we found the specific error in Moye – an aiding and abetting instruction that
was not supported by the evidence – to be harmless, as it was “extremely doubtful,”
given the instructions as a whole, that the jury would have based its verdict on an aiding
and abetting theory in the absence of factual support. Id. at 402.
Here, the evidence showed that Appellant first used another’s identity around the
same time that that person lost his identification paperwork. Thus, the jury could
reasonably infer that Appellant obtained the identification around that time. However,
there is no evidence as to whether Appellant found or stole the identification, whether
someone else found or stole the identification and transferred it to Appellant, or whether
there was some other scenario. Accordingly, the court was appropriately concerned that
the jury might draw improper conclusions about the lack of evidence as to how Appellant
acquired another person’s identity. The instruction correctly informed the jury that
evidence of theft or misappropriation was not required and that even consent from the
“real” person would not constitute “lawful authority.” See United States v.
Ozuna-Cabrera, 663 F.3d 496, 500 (1st Cir. 2011). Given the inferences a reasonable
juror might make from the evidence, or the lack thereof, we find that the instruction was
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not an abuse of discretion. Moreover, even if there was error, we find that any error was
harmless beyond a reasonable doubt.
Appellant next contends that, although this court has held that district courts need
not and should not define reasonable doubt, the district court should have defined the
term for the jury, after the jury requested further instruction. We have held that “district
court[s] [are] not required to define reasonable doubt to the jury so long as the jury was
instructed that the defendant’s guilt must be proven beyond a reasonable doubt,” because
“attempting to explain the words ‘beyond a reasonable doubt’ is more dangerous than
leaving a jury to wrestle with only the words themselves.” United States v. Hornsby, 666
F.3d 296, 310-11 (4th Cir. 2012). Further, where the Supreme Court has not ruled on an
issue, a panel of this court is bound by its own precedent. See United States v. Bullard,
645 F.3d 237, 246 (4th Cir. 2011).
Accordingly, we affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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