USA v. Emelys Gonzalez

Filing

Opinion issued by court as to Appellant Emelys Gonzalez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 12/21/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12937
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20672-KMW-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMELYS GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 21, 2016)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Emelys Gonzalez appeals her conviction for aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1). After careful review, we affirm.
I.
A grand jury indicted Gonzalez on five counts, charging her with: (1) one
count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349; (2)
three counts of bank fraud in violation of 18 U.S.C. § 1344; and (3) one count of
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Because
Gonzalez challenges only her conviction for aggravated identity theft on appeal,
we summarize only the evidence relevant to that count.
On December 8, 2015, the government produced Amy Headley as a witness
at Gonzalez’s trial. Headley testified that she was previously known as “Amy
Elannan” because of an earlier marriage, but had used the name “Headley” since
1998. She also said she lived in Hialeah, Florida twenty years earlier. The
government then asked Headley to examine a check that was dated May 4, 2014.
Headley testified that her former name and Hialeah address were printed on the
top-left corner of the check. Although the name on the signature line of the check
read “Amy M. Elannan,” Headley stated that it was not her signature, and that she
had not “used that signature in years.” She observed that the check was made out
to an “Evelyn Gonzalez” for $4,000, but said she did not know anyone who went
by that name or by “Emelys Gonzalez.” Headley also testified that she did not
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know the defendant and never authorized the defendant or anyone else to use her
name and signature for this particular check. Victoria Spivey, an investigator for
Bank of America, also testified for the government. She stated there was a $4,000
deposit to Gonzalez’s Bank of America account on May 4, 2014 via an automated
teller machine in North Hialeah.
After the government finished presenting its evidence, Gonzalez moved for
a judgment of acquittal on all counts pursuant to Federal Rule of Criminal
Procedure 29. With regard to the aggravated identity theft count, she argued there
was not enough evidence to establish that “Amy M. Elannan” was a name that
belonged to a specific person. She also asserted acquittal was appropriate under
United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008). The district court denied
Gonzalez’s Rule 29 motion as to the aggravated identity theft count, noting
Headley’s testimony that she previously lived at the address listed on the check and
went by the name “Amy Elannan.” The jury later found Gonzalez guilty on all
five counts. The district court sentenced her to a total of 25-months imprisonment.
II.
On appeal, Gonzalez argues the district court erred when it denied her
motion for judgment of acquittal because the government failed to prove the name
she used to commit her offense (“Amy Elannan”) belonged to a specific person.
Put another way, Gonzalez asserts the government presented identifying
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information that was too general to identify a specific person. “We review de novo
the denial of a defendant’s properly-preserved motion for judgment of acquittal.”
United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016). Such a denial will
be upheld if, viewing all facts and inferences in the light most favorable to the
government, “a reasonable trier of fact could conclude that the evidence establishes
the defendant’s guilt beyond a reasonable doubt.” Id. (quotation omitted).
To sustain a conviction for aggravated identity theft under 18 U.S.C.
§ 1028A(a)(1), the government “must establish that the defendant (1) knowingly
transferred, possessed, or used; (2) the means of identification of another person;
(3) without lawful authority; (4) during and in relation to a felony enumerated in
§ 1028A(c),” which includes bank fraud. United States v. Barrington, 648 F.3d
1178, 1192 (11th Cir. 2011) (quotation omitted); 18 U.S.C. § 1028A(c)(5). The
statute defines a “means of identification” as “any name or number that may be
used, alone or in conjunction with any other information, to identify a specific
individual.” 18 U.S.C. § 1028(d)(7) (emphasis added).
Gonzalez argues the government failed to meet its burden because the name
and signature of “Amy Elannan” are not sufficiently unique to identify a specific
person under Mitchell. Mitchell is a Fourth Circuit case holding that under
§ 1028A, “a bare name . . . is not likely to be sufficiently unique . . . to identify a
specific person.” 518 F.3d at 235. It also concluded that a false driver’s license
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with a first and last name (“Marcus Jackson”), city of residence, and birth year that
all matched a specific person was not sufficient to tie the false license to that
person. Id. at 235–36. Even if Mitchell was binding precedent in this Circuit, it
would not help Gonzalez here. The government’s evidence showed Gonzalez used
not only Headley’s former name and signature, but also Headley’s previous
address, to commit bank fraud. At trial, Headley said she was previously known as
“Amy Elannan” and used to live at the address listed on the check. She also
testified that the “Amy M. Elannan” signature on the check was not hers, and that
she never gave anyone permission to use her name and signature for the check.
Viewing these facts in the light most favorable to the government, a reasonable
jury could conclude that Gonzalez used the “means of identification” of a specific
person—Amy Headley—to commit bank fraud. In other words, a check with a
first name, last name, and address that all match a specific person’s previous
identification information contains sufficiently unique identifiers to tie the check to
that person.
Gonzalez also argues the government failed to prove the name “Amy
Elannan” belonged to a specific person because Headley stopped using the name
“Elannan” more than sixteen years before the issuance of the check and eight years
before the account associated with the check was opened in 2006. She also notes
that Headley had not lived at the Hialeah address listed on the check for over
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twenty years and was not living there when the account was opened. However,
nothing in the relevant statute requires the “means of identification” to be
contemporary or up-to-date. See 18 U.S.C. § 1028(d)(7). The identifying
information need only be sufficiently unique “to identify a specific individual.” Id.
In this case, Headley’s former name and address taken together are sufficiently
unique for a reasonable jury to conclude Gonzalez committed bank fraud using
identifying information that belonged to a specific person.
AFFIRMED.

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