Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used in that district.”

This result is dictated by the language of § 1028A itself, which makes it a crime to commit identity theft “during and in relation to any” enumerated felony offense. Indeed, the Supreme Court has held that the nearly identical language of 18 U.S.C. § 924(c)(1), which makes it a crime to use or carry a firearm “during and in relation to any crime of violence,” allows venue to lie in any district in which venue is appropriate for the underlying crime of violence.

The same outcome is required here. The underlying bank fraud was “committed in all of the places that any part of it took place. Thus, for venue purposes it does not matter that" Barrie only committed identity theft in other districts. He did so “during and in relation to” a bank fraud that took place in the Southern District, and that was sufficient.

Citizen Feign

United States v. Tureseo, No. 07-2933-cr (2d Cir. May 14, 2009)(Miner, Cabranes, CJJ, Berman, DJ)

Juan Tureseo was deported in 1997, after an assault conviction. Immigration agents found him in the United States in 2006, at which time he insisted he was a United States citizen named Danny Ortega. When the agents warned him that it was a crime to lie to them, he admitted the truth.

Tureseo was originally charged only with illegal reentry. As that case wore on, however, he again insisted that he was Danny Ortega, a United States citizen. His wife provided Ortega’s birth certificate to his counsel, who passed it on to the government, asserting that it belonged to his client. As a consequence, the government obtained a superseding indictment charging Tureseo with falsely claiming United States citizenship and aggravated identity theft. Tureseo, now with new attorneys, was convicted after a jury trial.

The Defendant’s Absence

On the second day of the jury charge, with just two short instructions left to give, the defendant was not present. In the jury’s absence, the judge explained that, the defendant had refused to come to court that morning and that the lead defense attorney, after calling chambers, had gone to the jail to prod Tureseo to get moving. The judge waited an hour for them to arrive, then concluded the charge without them, instructing the jury to disregard the fact that Tureseo and one of his attorneys were missing.

Shortly thereafter, lead counsel and Tureseo came to court. Counsel explained that Tureseo’s absence was the fault of a marshal who refused to cuff him, and moved for a mistrial based on the court’s decision to proceed in their absence.

The circuit found that the district court violated Tureseo’s right to be present. The record was unclear as to whether Tureseo knowingly and voluntarily absented himself from the trial. Beyond hearing counsel’s explanation, the district court did not conduct an inquiry into the circumstances of Tureseo’s absence, and whatever inquiry the court had earlier undertaken did not take place on the record. On these facts, the decision to continue the trial in Tureseo’s absence was error.

The error, however, was harmless. The jury was permitted to return to court later to examine Tureseo’s features - a disputed issue in the case - and there was “overwhelming evidence of Tureseo’s guilt” such that there was “no possibility of prejudice.”

Aggravated Identity Theft

Tureseo requested that the court instruct the jury that, for the aggravated identity theft count, the government was required to prove that he knew that the means of identity he used to falsely claim United States citizenship belonged to an actual person. The district court refused, which was error under Flores-Figueroa v. United States, __U.S___, 2009 WL 1174852 (May 4, 2009). Moreover, the error was not harmless: while there was “substantial evidence” that Tureseo knew that Ortega was an actual person at the time he used Ortega’s birth certificate to assert United States citizenship, the evidence “d[id] not all flow in one direction.” Ortega testified that he did not know Tureseo, which suggested that Tureseo did not know of Ortega’s existence, either.