USA v. Lenin Novas

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 9, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-12584
Non-Argument Calendar
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D. C. Docket No. 1:09-cr-20865-ASG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LENIN NOVAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 9, 2012)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
Lenin Novas appeals his convictions of two counts of aggravated identity

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theft. 18 U.S.C. § 1028A. Novas argues that he was entitled to an acquittal
because the United States failed to prove that he knew that the data encoded on his
counterfeit credit cards belonged to a real person. Novas also challenges, for the
first time, a jury instruction that the United States could rely on circumstantial
evidence involving misuse of a credit card to prove that Novas knew the credit
cards belonged to another person. We affirm.
I. BACKGROUND
Agents of the Secret Service placed Novas under surveillance after he visited
the home of Carlos Rodriguez, who was a suspect in an ongoing investigation
involving credit card fraud. On August 26, 2009, Novas used a credit card to
purchase goods at a Walmart store in Florida City, Florida. Agent Jacob Ellis
obtained a receipt of the transaction, which showed that Novas charged his
purchases to a credit card with an account number of 0924 and signed the receipt
as “J. Baez.” Ellis discovered that Capital One had established account 0924 for
“D.D.,” and that Novas was using a counterfeit credit card encoded with data about
D.D.’s account. When Novas was unsuccessful in using the counterfeit credit card
later at a different Walmart store, he charged his purchases to a second credit card
with an account number of 6509 and signed the receipt as “J. Baez.” Ellis
investigated the second transaction and discovered that Novas was using a
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counterfeit credit card encoded with data about account 6509 that First Citizens
Bank had established for “H.B.” After further investigation, Ellis discovered that
Novas had used the two counterfeit credit cards repeatedly.
Novas consented to an interview with Ellis, during which Novas admitted to
using counterfeit credit cards and associating with Rodriguez. Novas confessed
that he had signed receipts for the two counterfeit cards using the false name “J.
Baez” and that he had a fraudulent driver’s license identifying him as “J. Baez.”
Novas admitted that, for three months, he had been using counterfeit credit cards
provided by Richard Jerez. Novas stated that Jarez provided bundles of 5 to 10
cards that he would deliver in person or mail from New York. Novas knew that
Rodriguez was involved with counterfeit credit cards, but Novas disclaimed any
knowledge about Rodriguez’s illegal business. Ellis arrested Novas and seized
from Novas three credit cards that he had obtained from BankAmericard, Chase,
and Bank Atlantic.
Novas was charged with two counts of using a counterfeit access device, id.
§ 1029(a)(1), and two counts of aggravated identity theft for stealing the identities
of “D.D.” using his means of identification ending in number “0924” and of
“H.B.” using his means of identification ending in number “6509,” id.
§ 1028A(a)(1). In April 2010, a jury found Novas guilty of the two counts
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involving an access device. The jury failed to return verdicts on the two counts of
identity theft, and the district court declared a mistrial on the two counts.
Before Novas’s second trial, the United States submitted a proposed jury
instruction about aggravated identity theft. See Eleventh Circuit Pattern Jury
Instructions (Criminal Cases), Trial Instruction 40.3. The proposed instruction
stated that to determine “whether the Defendant knew that the means of
identification . . . belonged to an actual person” the jury could “consider evidence
that the means of identification was used successfully by the Defendant.” Novas
moved to strike the phrase “used successfully” and argued that the phrase as used
in our decisions in United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), and
United States v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010), pertained solely to
the theft of personal identity documents. The district court disagreed and denied
Novas’s motion. Novas did not object to the statement in the proposed instruction
that “[t]he Government can also rely on circumstantial evidence about an
offender’s misuse of a victim’s means of identification to prove the offender knew
the means of identification belonged to a real person.”
At trial, victims D.D. and H.B. testified that Novas had made unauthorized
charges to their credit card accounts. D.D. testified that he lived in California; had
received a credit card from Capital One with an account number of 0924; and had
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not authorized four charges that Novas made to D.D.’s credit card account in
Miami and Florida City, Florida, on August 26, 2009. H.B. testified that he lived
in North Carolina; had received a company credit card from First Citizens Bank
with an account number of 6509; and had not authorized eight charges that Novas
made to that credit card account in Miami, Florida, between August 25 and 27,
2009. Both D.D. and H.B. testified that they never had shared their cards with
another person and were unaware a person had misappropriated data about their
credit card accounts.
Cristy Dufour, a security officer with Capital One, and Gustavo Schmidt, a
security officer with First Citizens Bank, testified about the process used to
determine whether a credit card is valid and the process by which their companies
authenticated credit cards. Dufour and Schmidt testified that their companies
verified the identity of an applicant before issuing a credit card and determined that
an account number was valid before approving any transaction. Dufour and
Schmidt explained that credit card transactions involve a three-step process: the
customer swipes a credit card in a card reader; the data encoded in the magnetic
strip on the back of the card is transferred to the issuing company; and the issuing
company examines the data and either approves or denies the transaction. Dufour
stated that Capital One would approve a transaction if it had issued the account
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number and the account was valid, and Schmidt testified that First Citizens would
approve a transaction if the account was valid, credit was available, and the card
had not expired. Dufour and Schmidt explained that the credit cards used by
Novas had been encoded with data to charge to the accounts that Capital One and
First Citizens had established for D.D. and H.B., but the name of the cardholders
had been modified to “J. Baez.”
Two employees of Walmart and an employee of Publix testified that their
stores would complete a transaction only if a credit card company transmitted to
the stores a code that approved the charge. All three employees testified that they
knew a credit card had a valid account number if its issuing company approved the
transaction. The Walmart employees also testified that they had never heard of a
person fabricating a valid 16-digit account number.
Agent Ellis testified about his investigation, Novas’s admissions, and how
data is modified to create counterfeit credit cards. Ellis explained that a person
steals the account data encoded on an original credit card and changes the name of
the cardholder. The minor modification does not impede access to the credit card
account because the issuing company verifies the account number instead of the
name of the cardholder in determining whether to approve or deny a transaction.
Ellis also explained that a person cannot select successfully 16 random numbers for
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a credit card because the account number is connected to a specific expiration date
and security code.
After the United States rested its case, Novas moved for a judgment of
acquittal. Novas argued that the evidence about his repeated use of the two
counterfeit credit cards was insufficient to prove that he knew the data on those
cards belonged to a real person. The district court denied Novas’s motion.
The district court gave its jury instructions and submitted the case to the
jury. The district court modified the jury instruction proposed by the United States
and instructed the jury as follows: “In determining whether the defendant knew
that the means of identification at issue belonged to an actual person, the
government can rely on circumstantial evidence about an offender’s misuse of a
victim’s means of identification.” The jury found Novas guilty of stealing the
means of identification of D.D. and H.B. The district court sentenced Novas to
two concurrent terms of 24 months of imprisonment.
II. STANDARDS OF REVIEW
We apply two standards of review in this appeal. We review de novo the
denial of a motion for a judgment of acquittal and “consider the evidence ‘in the
light most favorable to the government, with all inferences and credibility choices
drawn in the government’s favor,’” United States v. DuBose, 598 F.3d 726, 729
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(11th Cir. 2010) (quoting United States v. LeCroy, 441 F.3d 914, 924 (11th Cir.
2006)), “‘whether the evidence is direct or circumstantial,’” United States v. Doe,
661 F.3d 550, 560 (11th Cir. 2011) (quoting United States v. Mieres–Borges, 919
F.2d 652, 656–57 (11th Cir. 1990)). When a defendant fails to object to a jury
instruction, we review for plain error to determine whether an error occurred, if it
was plain, and whether it affected substantial rights. United States v. Barrington,
648 F.3d 1178, 1190 (11th Cir. 2011).
III. DISCUSSION
Novas admits that he used counterfeit credit cards containing data used to
identify and access the credit accounts of D.D. and H.B., but Novas argues that the
United States failed to prove that he knew that the data encoded on the counterfeit
cards belonged to other persons. Novas argues that an allegedly erroneous
instruction to the jury relieved the United States of its burden to prove that Novas
knew the data was a means of identification for D.D. and H.B. We resolved
questions about the type and quantity of evidence required to prove knowledge in
Holmes, 595 F.3d 1255, Gomez-Castro, 605 F.3d 1245, and Doe, 661 F.3d 550.
We explained that, because “[g]uilty knowledge can rarely be established by direct
evidence,” United States v. Suba, 132 F.3d 662, 673 (11th Cir. 1998) (mail fraud),
the United States may rely on “[e]vidence of surrounding circumstances,” United
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States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (possession with intent to
distribute), to establish that a defendant knows the means of identification he uses
belongs to a real person. Holmes, 595 F.3d at 1258; Gomez-Castro, 605 F.3d at
1248; Doe, 661 F.3d at 563–64. In the light of these decisions, Novas’s challenges
to his convictions fail.
“Both the circumstances in which an offender obtain[s] a victim’s identity
and the offender’s later misuse of that identity can shed light on the offender’s
knowledge about that identity,” Gomez-Castro, 605 F.3d at 1248, and the
circumstances in which Novas acquired and used repeatedly the two counterfeit
credit cards allowed the jury to infer reasonably that Novas knew the cards
belonged to other persons. Novas acquired the two counterfeit cards from a
supplier who had already proved reliable by providing several counterfeit credit
cards in the preceding three months. Novas, an experienced fraudster, ensured that
the two counterfeit cards were encoded with a fictitious name that he could verify
using a fraudulent identification card. See id. at 1249. The United States
introduced evidence about the verification process used by credit card companies
to eliminate the use of fraudulent cards, and Novas’s experience with and
successful use of other counterfeit credit cards proved that he was familiar with
and confident that the two counterfeit cards could withstand the verification
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process. See Doe, 661 F.3d at 563; Holmes, 595 F.3d at 1258.
“[K]nowledge can be inferred reasonably based on ordinary human
experience,” Gomez-Castro, 605 F.3d at 1249, and Novas’s possession of three
credit cards in his name established that he had undergone the application process
that credit card companies use to establish accounts. Based on that experience, a
jury could reasonably infer that Novas knew that the approval of transactions for
the two counterfeit cards meant that they contained data for other persons. Novas’s
“repeated and successful testing of the authenticity of [the] victim[s’] identifying
information [that had been encoded on the counterfeit credit cards] . . . [also
provided] powerful circumstantial evidence that [he] knew the identifying
information belonged to a real person as opposed to a fictitious one.” Doe, 661
F.3d at 562–63; see, e.g., Gomez-Castro, 605 F.3d at 1249; Holmes, 595 F.3d at
1258. The district court did not err when it denied Novas’s motion for a judgment
of acquittal.
Because “misuse of [an] identity can shed light on the offender’s knowledge
about that identity,” Gomez-Castro, 605 F.3d at 1248, the district court did not err
by instructing the jury that the United States “can rely on circumstantial evidence
about [Novas’s] misuse of [the] victim[s’] means of identification . . . [i]n
determining whether [he] knew that the means of identification . . . belonged to a
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real person.” Novas argues that the instruction violated his right of due process
under the Fifth Amendment by conveying to the jury that it was required to
presume from Novas’s use of the counterfeit cards that he knew the cards belonged
to a real person, but we disagree. The district court instructed the jury that the
United States can rely on the circumstantial evidence of misuse. Use of the
permissive word “can” instead of a mandatory term, such as “shall” or “must,”
allows the jury to draw a reasonable inference about whether a defendant knew that
the data encoded on counterfeit credit cards belonged to a real person. See United
States v. Dean, 517 F.3d 1224, 1231 (11th Cir. 2008). The district court did not
plainly err in instructing the jury.
IV. CONCLUSION
Novas’s convictions for aggravated identity theft are AFFIRMED.
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