Wednesday, February 22, 2017

Stalking, the State Trooper and Ineffectiveness of Counsel

This post examines a recent opinion from the Court of Appeals of Wisconsin:  State v. Grover, 2017 WL 663207 (2017).  The court begins the opinion by explaining that
Vickie M. Grover was convicted of stalking S.W., a Wisconsin State Patrol trooper. On appeal, Grover challenges the sufficiency of the evidence and the effectiveness of trial counsel. She also asks this court to order a new trial in the interest of justice. 
State v. Grover, supra.
It goes on to explain that
S.W. first met Grover when she approached him at a gas station and asked him a question about her damaged windshield. S.W. worked the overnight shift, and he generally began his shift by getting gasoline for his squad car at a Sun Prairie gas station. Grover drove a white Nissan Cube, a `distinct’ vehicle. S.W. testified that after that initial encounter, he started noticing Grover's car frequently, with Grover following him to whatever gas station he happened to visit. Grover would engage him in `one-sided’ conversation `[a]lmost every night.’

S.W. testified that he became `concerned’ about seeing Grover so often and he `started changing [his] patterns’ regarding where he got gas and the route he would take to the interstate. S.W. began noticing Grover's car driving past the DeForest State Patrol headquarters. Grover would pass him on the interstate and wave. These encounters took place between the start of S.W.'s shift until 3:00 to 4:00 a.m. S.W. testified that, on several occasions, Grover followed his squad into Columbia County. At some point, S.W. ran Grover's license plate and learned her name.
State v. Grover, supra.
The opinion goes on to explain that
S.W. often parked his squad in front of his Sun Prairie house when not working. He testified that one night, in January 2011, he went out to the squad at the start of his shift when Grover drove up and stopped in front of his driveway. S.W. described the incident as follows:

`After a second or two I was kind of like sitting there in shock a little bit, like this can't be happening. She exited the vehicle. I still was in my vehicle. I opened the driver's side door and she walked to the driver's side door of my vehicle.’
State v. Grover, supra.
The opinion then provides more details of this encounter:
When asked how he felt, S.W. testified:
`I felt violated. I had a rush of emotions going through me. I had my wife inside who was pregnant, about to have a baby. I'd never had this happen before so I was—I was a little concerned to say the least.’
. . . .
. . . `I guess I felt threatened. I had no idea what her intentions were.’
S.W. testified that he was `pretty sure’ he spoke first, asking Grover, `what the hell she was doing’ at his house. S.W. was `upset’ and `probably more authoritative’ than in prior encounters. Grover told S.W. that she wanted to give him some gifts—a University of Wisconsin Rose Bowl hat and some pens and paper from her employer. Grover was dressed in Wisconsin clothes and colors, looking like she had just come from a football game. S.W. told Grover he could not accept the items, that he was married, and that this was `inappropriate.’
State v. Grover, supra.
The court then goes on to explain that S.W.
testified that he thought that Grover learned where he lived by following him when he returned to his house. S.W. testified that at the end of the incident, he was `emotionally drained’ and `couldn't believe it had happened.’ S.W. `felt threatened, . . . an unwanted person [was] coming to my house.’ S.W. testified he was `mentally and physically and emotionally drained’ after the incident and his `anxiety was through the roof.’
State v. Grover, supra.
The opinion then explains that
[a]fter that incident, S.W. spoke with a sergeant, his wife, and ultimately, the Sun Prairie police department. The discussion with a police officer led to the issuance of a `no stalking’ letter from the police to Grover. Officer Raymond Thompson testified that he served Grover with the letter on March 29, 2011, and read and explained the letter to her. The letter advised Grover that her behavior towards S.W. could be interpreted as stalking, as defined by Wisconsin Statutes §940.32 (2015-16). The letter further advised Grover that “future stalking behavior” towards S.W. `could result in [her] arrest.’ Thompson testified that Grover agreed to not have any further contact with S.W.

S.W. testified that after the letter was served, he continued to see Grover in the Sun Prairie area, including in his neighborhood. In April, while S.W. was on duty, he was buying lunch at a grocery store. Grover approached him and started talking to him. Grover told S.W. she was sorry, that she `wasn't trying to pick [him] up,’ and that she followed him because she felt safe around him. S.W. told Grover that her conduct was inappropriate and she should not be talking to him.

After that incident, S.W. continued to see Grover but did not have any direct contact with her until August 2012. S.W. testified that on August 9, 2012, a package was found in his home mailbox. The package had no return address, several stamps, but no postmark. S.W. and his wife discussed whether to open the package. S.W.'s wife was `very concerned and upset with [S.W.],’ questioning him about whether he had a girlfriend. Eventually, they surmised that the package might have been sent by Grover. S.W.'s wife opened the package. Inside the package were several wax candles in the shape of Roman numerals and a birthday card, signed, `me.’ S.W. testified that he felt `[t]hreatened’ by the incident. S.W. explained that he `was very concerned’ and `afraid for [his] family’ because he still did not know anything about Grover beyond her name.
State v. Grover, supra.
The Court of Appeals concluded the initial section of its opinion, which sets out the facts and the legal proceedings below:
Officer Timothy Lingle testified that he spoke with Grover after the package incident. Grover admitted mailing the package to S.W. Lingle testified that Grover told him that S.W's `body language’ indicated that he `liked her but [he] was too shy to let her know.’ Grover admitted receiving the `no-stalking’ letter but said she was unsure whether she was supposed to still have contact with S.W. after the letter.

            Grover did not testify at trial and the defense did not present any witnesses.
State v. Grover, supra.
The Court of Appeals then began its analysis of the two issues Grover raised in her appeal: One was whether the evidence presented at trial was sufficient to support the jury’s verdict; the other was whether her defense attorney was “ineffective.” State v. Grover, supra. This post examines each, in that order.
The Court of Appeals began it analysis of the first issue by explaining that
We first set out the familiar standard of review. When reviewing a challenge to the sufficiency of the evidence, we employ a highly deferential standard of review. See Morden v. Continental AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659. We will not overturn a verdict if there is any credible evidence, under any reasonable view, that leads to an inference supporting the verdict, and we consider the evidence in the light most favorable to the verdict. Id., ¶¶38-39. We may not substitute our judgment for that of the jury `unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force’ that no reasonable jury `could have found guilt beyond a reasonable doubt.’ State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We will uphold the verdict if any possibility exists that the jury could have drawn the inference of guilt from the evidence. See id. at 507. It is the jury's province to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. See id. at 506. If more than one inference can be drawn from the evidence, the inference which supports the jury's finding must be accepted unless the testimony was incredible as a matter of law. See State v. Witkowski, 143 Wis. 2d 216, 223, 420 N.W.2d 420 (Ct. App. 1988).
State v. Grover, supra.
The Court of Appeals then outlined what the prosecution had to prove to convict Grover of stalking.  It explained that the elements of stalking are set forth in in Wis. Stat. § 940.32(2)(a)-(c): 
(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

Wisconsin Stat. § 940.32(1) defines `course of conduct’ in pertinent part as:
(a) `Course of conduct’ means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:
1. Maintaining a visual or physical proximity to the victim.
2. Approaching or confronting the victim.
3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.
4. Appearing at the victim's home or contacting the victim's neighbors.
. . . .
7. Sending material by any means to the victim . . . .
8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.
`Serious emotional distress’ is defined as `to feel terrified, intimidated, threatened, harassed, or tormented.’ Section 940.32(1)(d).
State v. Grover, supra.
The court then began its analysis of Grover’s argument that the evidence presented at trial was not sufficient to support her conviction:
The State established the requisite `course of conduct.’ Grover saw S.W. nearly every night, often following him into whatever gas station he entered. See Wis. Stat. §940.32(1)(a)1. She followed his squad car into another county and waved at him when passing on the interstate. See § 940.32(1)(a) 1 and 3. Grover went to S.W.'s house, uninvited, to give him gifts. See § 940.32(1)(a)4. After receiving a formal letter telling her that S.W. considered her contact to be stalking and advising her not to have further contact with him, she approached him and talked with him at the grocery store. See § 940.32(1)(a)2. Also after receiving the letter, Grover sent a package to S.W.'s house. See § 940.32(1)(a)7. and 8.

Grover argues that the State failed to prove that S.W. suffered serious emotional distress. She emphasizes that she never threatened S.W. and her conduct was not illegal. Grover characterizes her conduct as merely `annoying or frustrating.’
State v. Grover, supra.
The Court then begins its analysis of Grover’s argument, explaining that
S.W. testified repeatedly that he felt threatened by Grover's conduct. S.W. had no way of knowing Grover's true motivations. From S.W.'s perspective, a person he did not know was purposely seeing him nearly every day and obviously following him as he worked his shift for unknown reasons. Grover then amplified S.W.'s fear and apprehension when she came to his house. When Grover sent S.W. the package in August 2012, S.W. again felt threatened, concerned, and scared for his safety and the safety of his family. Grover sent the package despite the `no-stalking’ letter's express direction to stop contacting S.W. The State presented sufficient evidence that S.W. suffered serious emotional distress. See Wis. Stat. §940.32(1)(d) (victim feeling `threatened’ defined as serious emotional distress).

Grover contends that the State did not prove that she knew or should have known that her conduct was causing S.W. serious emotional distress. Grover contends that there was no `overt act’ showing her awareness `that she could create such a serious level of emotional distress.’ That argument fails largely on the strength of the `no-stalking’ letter. Even if Grover was wholly ignorant that S.W. felt threatened by her conduct before the letter, such ignorance was conclusively refuted by the letter formally advising Grover that her conduct had caused S.W. serious emotional distress. After receiving the letter, Grover continued to see S.W. in the Sun Prairie area, approached him in the grocery store, and sent the anonymous package to his home.

Lastly, Grover contends that the State failed to show that a reasonable person would have suffered serious emotional distress. See Wis. Stat. § 940.32(2)(a). Grover emphasizes that she never directly contacted S.W.'s family and that the number of contacts with S.W. had decreased over time. Grover characterizes S.W.'s fears as `unreasonable’ fears of `some unknown risk’ in his `imagined vision of the world.’

We disagree. Although Grover's dismissive description of her conduct and criticism of S.W.'s reactions are possible inferences that the jury could have drawn from the evidence, the alternative inference—that S.W.'s fear was reasonable under the circumstances—was also available to the jury. We must accept the inference chosen by the jury. See Witkowski, 143 Wis. 2d at 223.
State v. Grover, supra.
The Court of Appeals then took up Grover’s second argument, which she raised in what is called a “postconviction motion.” State v. Grover, supra. The motion argued that Grover’s "defense attorney
 was ineffective in representing her.” State v. Grover, supra. More precisely, she argued that
her trial attorney was ineffective in several respects: (1) improper advice on the question of whether she should testify; (2) inadequate investigation; and (3) inadequate presentation of exculpatory evidence. The trial court denied the motion without a hearing, stating only that there was `no basis given’ for a hearing.
State v. Grover, supra.
The court began its analysis of Grover’s ineffective assistance of counsel argument by explaining that
[a] postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel. See Machner, 92 Wis. 2d at 804. However, a defendant's claim that counsel provided ineffective assistance does not automatically trigger a right to an evidentiary hearing. See State v. Curtis, 218 Wis. 2d 550, 555 n.3, 582 N.W.2d 409 (Ct. App. 1998). A circuit court may deny a postconviction motion without a hearing `if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.’ State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. Whether a motion alleges sufficient material facts that, if true, would entitle a defendant to an evidentiary hearing presents a legal issue that we review de novo. See id. In determining whether Grover is entitled to an evidentiary hearing, we accept as true the facts alleged in the postconviction motion. See State v. Bentley, 201 Wis. 2d 303, 309, 548 N.W.2d 50 (1996).

In her postconviction brief, Grover asserts that she wanted to testify but she `felt compelled to follow her trial attorney's advice’ not to testify. She contends that trial counsel's ineffectiveness rendered invalid her waiver of the right to testify. Grover claims that counsel decided she would not testify and told her that if she did testify, she would be found guilty and he would no longer represent her.
State v. Grover, supra.
The opinion then goes on to explain that Grover
filed several exhibits with her postconviction motion: a lengthy history of S.W.'s gasoline purchases for his squad car from June 2009 until August 2012; records from the Department of Motor Vehicles showing the number of white Nissan Cubes registered in Dane County during that time period; the bill of sale from Grover's September 2009 purchase of a Cube; Google maps showing travel routes from Grover's house to her job; and evidence that Grover had won a $1000 gift card to a Sun Prairie gas station in December 2010.

Grover argues that the evidence of S.W.'s gasoline purchases would have contradicted his testimony that he changed his habits in response to Grover's conduct. She contends that evidence of the number of white Nissan Cubes registered in Dane County would have undercut S.W.'s claim that the car was distinctive and that any time he saw such a car Grover was the driver. Grover also faults trial counsel for not calling her father, Richard Grover, as a witness. Grover claims that her father would have testified that she `habitually’ came home from work between 11:00 p.m. and midnight, contrary to S.W.'s testimony that he saw her frequently between 3:00 a.m. and 4:00 a.m. Lastly, Grover argues that her counsel should have presented testimony of the manager of a video store in Sun Prairie who would have testified that she was a regular customer dating back to 2004, giving credence to the argument that her presence in the same areas as S.W. was purely coincidental.

The question is whether Grover has alleged facts, which if true, would entitle her to relief. See Bentley,  201 Wis. 2d at 310. We conclude that Grover's motion was sufficient to warrant an evidentiary hearing. Grover claims inadequate pretrial investigation and she has shown `”with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.”’ State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343 (Wisconsin Court of Appeals 1994) (quoted source omitted). Grover claims that her trial counsel threatened to not represent her if she chose to testify, thus calling into question the validity of her waiver of her right to testify. Given those assertions, a postconviction evidentiary hearing is an appropriate next step to ensure that a defendant acted knowingly, voluntarily, and intelligently. See State v. Denson, 2011 WI 70, ¶68, 335 Wis. 2d 681, 799 N.W.2d 831 (discussing a defendant's claim of an invalid waiver to the right not to testify). We emphasize that we are not deciding that Grover has established that her waiver was invalid or that she received ineffective assistance of counsel, only that her motion was sufficient to require an evidentiary hearing on those questions.
State v. Grover, supra.
The Court of Appeals therefore held that “sufficient evidence supports the jury's verdict and we decline to order a new trial in the interest of justice.”  State v. Grover, supra. And it concluded the opinion by explaining that
[a]s to Grover's claim that her trial counsel was ineffective, we conclude that the circuit court erred in denying the postconviction motion without a hearing. Accordingly, we reverse the postconviction order and remand for an evidentiary hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).  
State v. Grover, supra.
The Court of Appeals appended a footnote to the last sentence in the paragraph immediately above in which it explained that 
            We affirm the judgment of conviction at this time because Grover has not established 
            that it should be reversed. If the circuit court determines after the hearing that Grover 
            did receive ineffective assistance of counsel, the judgment would, of course, be 
            reversed at that time.

State v. Grover, supra.

Friday, February 17, 2017

Aggravated Identity Theft, the Driver’s License and the “Real Person”

This post examines a recent opinion from the U.S. Court of Appeals for the 9th Circuit: U.S. v Doe, 842 F.3d 1117 (2016).  The court begins the opinion by explaining that
Appellant John Doe appeals from his convictions of aggravated identity theft under 18 U.S. Code § 1028A, for knowingly possessing and using the name, birth date, and social security number of another person when he applied to renew a Nevada driver's license and when he submitted a Form I-9 Employment Eligibility Verification form to his employer.

Doe contends that the Government failed to prove an element of the offense—specifically that he knew that the false identity he used belonged to a real person. He also challenges the reasonableness of his 78-month sentence.
U.S. v Doe, supra.
The court went on to explain how, and why, the prosecution arose:
The victim of Doe's identity theft, referred to herein as `V,’ was born in San Jose, California in 1963 and, in or about 1977, was assigned a social security number and card. No later than 1987, V's uncle sold V's birth certificate and provided his social security number to a man, not identified at trial. In 1987, someone, most likely Doe, used V's birth certificate, name, and social security number to obtain a `replacement’ social security card from the Social Security Administration. For some 27 years, until Doe's arrest in 2014, V's identification was used without his authorization, most likely by Doe. In this regard, V received notices from the Social Security Administration (approximately every three years) that his name and social security number were being used in connection with multiple jobs in different places, including Nevada, with which V had no connection.

The evidence establishes that Doe's use of V's identity began no later than 2002 when Doe obtained a driver's license upon an application to the Nevada Department of Motor Vehicles (`DMV’) that contained Doe's photograph but V's name and birth date. Doe renewed this license multiple times by resubmitting V's identifying information and had such a license in his possession when arrested in 2014.
U.S. v Doe, supra.
The opinion goes on to explain that
[o]n or around May 15, 2013, Doe submitted such a driver's license together with a social security card with V's number to Doe's employer with a Form I-9 Employment Eligibility Verification.

The unauthorized use of V's identity caused him problems for approximately three decades. In the 1990s, his driver's license was suspended twice—including once while he was employed as a truck driver—because of DUIs committed in a different state by another person using his social security number. Tax refund checks due to him from the IRS were sent to a person in Nevada using his social security number. His wages were garnished three times to pay child support for children that were not his. More likely than not, these problems were caused by Doe's misuse of V's identity. In any event, it is clear that in 2013 V's unemployment benefits were halted because of child support payments owed (and not made) by Doe. V contacted Doe's employer to notify it that an employee was unlawfully using his identity.
U.S. v Doe, supra.
The court’s description of the facts and developments below goes on to explain that on
or around June 4, 2014, Doe was arrested in connection with a fraud investigation conducted by the Nevada DMV and the Department of Homeland Security. At that time, he was found to be in possession of a Nevada driver's license bearing his photo and V's identification information.

In this case, Doe was charged with two counts of aggravated identity theft under 18 U.S. Code § 1028A, unlawful production of an identification document under 18 U.S. Code § 1028(a)(1), and false attestation in an immigration matter in violation of 18 U.S. Code § 1546(b)(3). At trial, he was convicted on all charges. The district court sentenced Doe to 78 months of incarceration.

Doe appeals, challenging (1) the sufficiency of the evidence upon which his aggravated identity theft convictions were based, and (2) the reasonableness of his sentence.
U.S. v Doe, supra.
The Court of Appeals began its analysis of the arguments Doe made on appeal with the first issue he raised, i.e., the sufficiency of the evidence to support his convictions for aggravated identity theft. U.S. v Doe, supra. It began the analysis by explaining the “standard of review” it applies to such arguments, explaining that
[t]his Court reviews the sufficiency of evidence supporting a defendant's conviction de novo. We must construe the evidence `in the light most favorable to the prosecution’ and must affirm the conviction if `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ United States v. Nevils, 598 F.3d 1158, 1161 (U.S. Court of Appeals for the 9th Circuit 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,319 (1979)).
U.S. v Doe, supra (emphasis in the original).
The court then began its analysis of Doe’s argument, explaining that
Title 18 U.S.C. § 1028(A) provides that a person who `knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person’ in connection with an enumerated felony shall be sentenced to two years imprisonment. 18 U.S.C. § 1028A (2012).

To prove a violation of § 1028A, the Government must prove beyond a reasonable doubt that:

1. The defendant knowingly transferred or used a means of identification of another person without legal authority;
2. The defendant knew the means of identification belonged to a real person; and
3. The defendant did so in relation to one of the crimes enumerated in 18 U.S. Code § 1028A(c). See Flores–Figueroa v. United States, 556 U.S. 646, 647, 655–56 (2009); United States v. Miranda–Lopez, 532 F.3d 1034, 1037, 1040 (9th Cir. 2008).
U.S. v Doe, supra.
The court then began its analysis of Doe’s argument about the sufficiency of the evidence presented by the prosecution at his trial, noting that
Doe does not debate the Government's proof of the first and third elements. Doe was proven to have used V's means of identification without legal authority. And the use was proven to be in relation to crimes enumerated in 18 U.S.C. § 1028A(c), i.e., the violations of 18 U.S. Code §§ 1028(a)(1) and 1546(b)(3) for which he was convicted in the instant case.

Doe acknowledges that the Government proved that V was a real person. Doe contends however, that, without direct proof of his knowledge (such as proof that he knew V or had any connection to the sale of V's birth certificate and identifying information), the evidence was insufficient to establish his knowledge that V was a real person. The Court does not agree.

While direct evidence of the knowledge element is often presented in § 1028A prosecutions, this Court has recognized that the element can be proven by circumstantial evidenceSee Miranda–Lopez, 532 F.3d at 1040 (citing United States v. Villanueva–Sotelo, 515 F.3d 1234, 1249 (D.C. Cir. 2008) (`[P]roving the defendant knew the stolen identification belonged to another person should present no major obstacle, as such knowledge will often be demonstrated by the circumstances of the case.’)). Thus, the issue here presented is whether the circumstantial evidence was sufficient to establish Doe's knowledge that the identity of V was that of a real person.

When `determining the sufficiency of circumstantial evidence, the question is not whether the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion.’ Nevils, 598 F.3d at 1165 (quoting United States v. Eaglin, 571 F.2d 1069, 1076 (1977)).
U.S. v Doe, supra.
The court then began the process of outlining its analysis of Doe’s first issue and the resolution it would ultimately reach on that issue:
The Government presented ample circumstantial evidence to establish Doe's knowledge that V was a real person. Most persuasive was proof of Doe's repeated success in obtaining renewed Nevada driver's licenses bearing Doe's photograph and V's name, date of birth, and social security number. In this regard, the Government introduced copies of applications to the DMV for Nevada driver's licenses and state identity cards in V's name. The `image history’ associated with the applications dating back to 2002 showed photographs of Doe taken when he applied for reissuances of the driver's license and/or identity cards in V's name. Denise Riggleman, a DMV Compliance Enforcement Investigator, described the process involved in obtaining a new license or identity card through the Nevada DMV. Ms. Riggleman testified that new applicants must present proof of identity documents, such as a social security card or birth certificate, along with their applications to a DMV technician in person. This information is input into the DMV computer system, and the actual license is mailed to the applicant seven to ten days later.

In addition, the Government proved that Doe had submitted such a Nevada driver's license and a social security card in V's name as proof of identity in connection with an I-9 Employment Verification Form that he submitted to his employer.
U.S. v Doe, supra.
The opinion then goes on to explain that,
[i]n regard to the knowledge element of the § 1028A charge, the district court instructed the jury:

`Repeated and successful testing of the authenticity of a victim's identifying information by submitting it to a government agency, bank or other lender is circumstantial evidence that you may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one. It is up to you to decide whether to consider any such evidence and how much weight to give it.’

The jury found Doe guilty on both § 1028A charges.
U.S. v Doe, supra.
The court went on to analyze, and rule on, this issue:
 [t]his Court holds that the evidence of Doe's repeated successful use of V's identity in applications subject to scrutiny was sufficient to permit the jury to find that he knew that V was a real person. The Court's holding is consistent with decisions issued by its sister Circuits. E.g., United States v. Valerio, 676 F.3d 237, 244–45 (1st Cir. 2012) (`”[W]illingness to subject [a] social security number repeatedly to government scrutiny” is evidence that allows a reasonable jury to find that a defendant knew that a stolen identity belonged to a real person.’); United States v. Doe, 661 F.3d 550, 562–63 (11th Cir. 2011) (`[A] defendant's repeated and successful testing of the authenticity of a victim's identifying information prior to the crime at issue is powerful circumstantial evidence that the defendant knew the identifying information belonged to a real person as opposed to a fictitious one.’); United States v. Gomez–Castro, 605 F.3d 1245, 1249 (11th Cir. 2010) (concluding that `repeatedly and successfully test[ing] the authenticity of the birth certificate and social security card’ to obtain a license, benefit card, and passport was sufficient to show that the identity belonged to a real person); United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (`A reasonable jury also could have found that Holmes's willingness to subject the social security card repeatedly to government scrutiny established that she knew, all along, that the social security card belonged to a real person and was not a forgery.’); United States v. Foster, 740 F.3d 1202, 1207 (8th Cir. 2014) (`[R]epeated subjection of [a victim's] identity to a lender's scrutiny provides strong circumstantial evidence that the [defendant] knew the identity was real.’).
U.S. v Doe, supra.
The court then explained that
Doe, asserting that he is a Mexican national, contends that it was unreasonable for the jury to find that he knew how U.S. government agencies and their verification procedures worked. His not being a citizen, although a resident, of the United States is a fact that the jury could have considered relevant but does not render the jury's finding unreasonable. As stated in Gomez–Castro, 605 F.3d at 1249 (affirming the conviction of a citizen of the Dominican Republic), `[K]nowledge [of verification processes] can be inferred reasonably based on ordinary human experience for which no special proof is required; a trier of fact can rely on common sense.’ See also Holmes, 595 F.3d at 1258 (concluding that a reasonable jury could infer that a defendant (not a United States citizen) knew that the government `requested and sometimes retained for many weeks’ the submitted personal information to verify authenticity).

In sum, the Court holds that the circumstantial evidence presented, establishing Doe's repeated successful use of V's identification information, sufficed to permit the jury to find that he knew that V was a real person. Hence, he was properly convicted  on two counts charging aggravated identity theft in violation of 18 U.S. Code § 1028A.
U.S. v Doe, supra.
The Court of Appeals then took up the other argument Doe made on appeal, i.e., the reasonableness of the sentence imposed on him.  U.S. v Doe, supra. It divided its analysis of, and ruling on, this issue into two issues: the “standard of review” to be applied to this issue and the “reasonableness of the sentence.” U.S. v Doe, supra.
As to the standard of review, the court explained that a
district court's sentencing determination—whether inside or outside of the determined Sentencing Guidelines range—is reviewed for abuse of discretion. A sentence will be set aside only if it is substantively unreasonable or the result of a procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Autery, 555 F.3d 864, 872–73 (9th Cir. 2009). In reviewing the substantive reasonableness of a sentence, we consider whether the district court identified the correct legal standard and whether its findings were illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009). Our review is deferential, and relief is appropriate only in rare cases when the appellate court possesses `a definite and firm conviction that the district court committed a clear error of judgment.’ United States v. Ressam, 679 F.3d 1069, 1087–88 (9th Cir.2012) (en banc) (quoting United States v. Amezcua–Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009)).
U.S. v Doe, supra.
The Court of Appeals then began its analysis of Doe’s challenge to his sentence as being
“unreasonable”.  U.S. v Doe, supra. In the federal criminal justice system, the process of determining the appropriate sentence for a given defendant’s crime or crimes proceeds under the U.S. Sentencing Guidelines. If you are interested in what the Guidelines are and how they function, you can find out a great deal about both issues in Wikipedia’s entry on the guidelines, which you can find here. 
Getting back to the opinion, the court began its analysis of the sentence the district court imposed on Doe by explaining that the District Court Judge
determined that Doe's Offense Level was 14 and his Criminal History Category was II, yielding a Guideline range of 18 to 24 months. However, the district court varied upward and imposed a sentence of 78 months.

Doe contends that his 78-month sentence is substantively unreasonable in light of the factors set forth in 18 U.S. Code § 3553(a). Specifically, he claims the sentence is of greater duration than necessary to comply with the purposes of sentencing and is unsupported by credible evidence.
U.S. v Doe, supra.
The went on to describe what the District Court Judge said in sentencing Doe:
At sentencing, the district court stated:

`The Guideline sentence, I think, does not adequately reflect the seriousness of the defendant's conduct in terms of the length, the nature of his conduct, and the profound effect on the victim. The defendant did not just steal the victim's identity and use it for a few years, he stole and utilized the victim's identity for about 27 years, which is more than half of the victim's life. . . . ‘

`And, as I noted, defendant didn't just live a normal, law-abiding life. He committed offenses under the victim's identity and further perpetuated the harm to the victim, having these offenses reflect under the victim's identity. And, as noted, defendant's conduct caused terrible disruptions to the victim and his family.’

The Court finds that the district court properly considered, and stated the reasons for, the upward variance to the sentence imposed. In particular, the district court emphasized the substantial harm done to V over many years, as well as the criminal offenses committed by Doe in V's name, as revealed by Nevada public records. The district court's decision was within a range of reasonableness. We hold that the district court's imposition of a 78-month sentence was neither illogical, implausible, nor without support in the record. Hinkson, 585 F.3d at 1251.

            For the foregoing reasons, we affirm Doe's convictions and sentence.
U.S. v Doe, supra.