First-Degree Murder, the Cell Site Simulator and the Fourth Amendment

This post examines an opinion from the Court of Special Appeals of Maryland: State v. Andrews, 134 A.3d 324 (2016). The court begins the opinion by explaining that

[t]his case presents a Fourth Amendment issue of first impression in this State: whether a cell phone—a piece of technology so ubiquitous as to be on the person of practically every citizen—may be transformed into a real-time tracking device by the government without a warrant.

On the evening of May 5, 2014, the Baltimore City Police Department (BPD) used an active cell site simulator, without a warrant, to locate Appellee Kerron Andrews who was wanted on charges of attempted murder. The cell site simulator, known under the brand name `Hailstorm,’ forced Andrews's cell phone into transmitting signals that allowed the police to track it to a precise location inside a residence located at 5032 Clifton Avenue in Baltimore City. The officers found Andrews sitting on the couch in the living room and arrested him pursuant to a valid arrest warrant. The cell phone was in his pants pocket. After obtaining a warrant to search the residence, the police found a gun in the cushions of the couch.

State v. Andrews, supra.

The opinion goes on to note that

[i]n the Circuit Court for Baltimore City, Andrews successfully argued that the warrantless use of the Hailstorm device was an unreasonable search under the Fourth Amendment of the United States Constitution. The court suppressed all evidence obtained by the police from the residence as fruit of the poisonous tree. The State, pursuant to Maryland Code (1973, 2013 Repl.Vol., 2015 Supp.), Courts and Judicial Proceedings Article (`CJP’), § 12–302(c)(4), now appeals the court's decision to suppress that evidence.

State v. Andrews, supra. The Baltimore Sun news story you can find here puts the issue of law enforcement’s use of cell site simulators into an empirical context.  And the news story you can find here provides a little more information about the investigation in which the issue arose. 

The opinion goes on to note that the appeal, as argued by the State of Maryland, involved four related issues, the first of which is the focus of this post: “Did the motions court err in finding that the use of a cellular tracking device to locate Andrews's phone violated the Fourth Amendment?” State v. Andrews, supra.

The opinion went on to outline how the cell site simulator was used in this case, which the opinion refers to as “Cell Phone in a Hailstorm”:

As soon as Det. Spinnato obtained the pen register\trap & trace order on May 5, he sent a copy to the BPD's Advanced Technical Team (the `ATT’). The ATT then issued a form request to the service provider (Sprint) for the following: subscriber information; historical cell site location information (`CSLI’) for the period from April 5 to May 5, 2014; pen register data for 60 days; and precision GPS data from Andrews's phone.  An additional request followed for `GPS Precise Locations and email.’

Later on the same day—May 5—Det. Spinnato began receiving emails from ATT with GPS coordinates for Andrews's cell phone (within a range of a 200 to 1600 meter radius). Det. Spinnato and officers from the Warrant Apprehension Task Force (`WATF’) proceeded to the general area and waited until they received information from ATT that the cell phone was in the area of 5000 Clifton Avenue, Baltimore City. They proceeded to an area where there were approximately 30 to 35 apartments around a U-shaped sidewalk. Detective John Haley from ATT arrived and, using a cell site simulator known by the brand name `Hailstorm,’ was able to pinpoint the location of the cell phone as being inside the residence at 5032 Clifton Avenue.

Det. Spinnato knocked on the door and, after obtaining the consent of the woman who answered, entered the residence along with several other officers. They found Andrews seated on the couch in the living room with the cell phone in his pants pocket. Det. Spinnato arrested Andrews and secured the location until a search warrant could be obtained. Once they had the warrant, the BPD searched the home and found a gun in the couch cushions.

State v. Andrews, supra.

While the Court of Special Appeals went on to outline a detailed analysis of the applicable law and the facts in the case, it essentially articulated its holding in the case early in the opinion:

We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information. Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.

We hold that BPD's use of Hailstorm was not supported by a warrant or an order requiring a showing of probable cause and reasonable limitations on the scope and manner of the search. Once the constitutionally tainted information, obtained through the use of Hailstorm, was excised from the subsequently issued search warrant for 5032 Clifton Avenue, what remained was insufficient to establish probable cause for a search of that residence. Because the antecedent Fourth Amendment violation by police provided the only information relied upon to establish probable cause in their warrant application, those same officers cannot find shelter in the good faith exception, and the evidence seized in that search withers as fruit of the poisoned tree. We affirm.

State v. Andrews, supra.

The detailed factual and legal analysis the court outlines in the later sections of the opinion is very thoughtful and very carefully crafted.  Unfortunately, the extent of the detail prevents me from doing a detailed summary of the analysis. But if you would like to read the full opinion, you can find it here: http://www.mdcourts.gov/opinions/cosa/2016/1496s15.pdf

Toward the end of its detailed opinion, the Court of Special Appeals explains that

[w]e determine that cell phone users have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement. We hold, therefore, that the use of a cell site simulator, such as Hailstorm, by the government, requires a search warrant based on probable cause and describing with particularity the object and manner of the search, unless an established exception to the warrant requirement applies.

State v. Andrews, supra.

The references to a search warrant based on probable cause and particularly describing the nature and manner of the search in the paragraph above is, of course, an invocation of the requirements the Fourth Amendment to the U.S. Constitution imposes on “searches” that are conducted by law enforcement and/or other state agents. This Wikipedia entry explains how the term “search” is defined for the purposes of applying this provision of the Fourth Amendment.  And this Wikipedia entry does the same thing for the other Fourth Amendment “event, i.e., a “seizure” of a person or of property.

The very detailed opinion goes on to reject the government’s argument that the evidence should not be excluded, pursuant to the exclusionary rule, because the information then available to the officers investigating Andrews was not sufficient to establish “probable cause” which would have supported the applicability of the exceptions to the Fourth Amendment’s default requirement that officers obtain a search and seizure warrant before they embark on either or both.

And as I noted above, you can, if you find this case interesting, read the full, detailed opinion at the link I included above and repeat here:

http://www.mdcourts.gov/opinions/cosa/2016/1496s15.pdf

You might want to check the opinion, if only because it goes into the technical aspects of the use of the cell site simulator and its implications for Constitutional privacy.

“Use of a Minor in Nudity-Oriented Material,” the Search Warrant and Search Protocols

This post examines an opinion from the Court of Appeals of Ohio – 5th District, Ashland County: State v. Gornall, 2016 WL 6575173 (2016).  The opinion begins by explaining that

Elliot T. Gornall appeals a judgment of the Ashland County Common Pleas Court convicting him of sixty-six counts of illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2907.323(A)(1)), six counts of attempted illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2923.02(A), (Ohio Revised Code 2907.323(A)(1)), fifty-five counts of pandering obscenity involving a minor (Ohio Revised Code 2907.321(A)(5)), forty-five counts of illegal use of a minor in nudity-oriented material or performance (Ohio Revised Code 2907.323(A)(3)), two counts of aggravated possession of drugs (Ohio Revised Code 2925.11(A), possession of marijuana (Ohio Revised Code 2925.11(A)), and receiving stolen property (Ohio Revised Code 2913.51(A)). Appellee is the State of Ohio.

State v. Gornall, supra.

The article you can find on this site outlines the provisions of the Ohio statutes that target the use of children in obscenity, nudity-oriented material and most of the other offenses outlined above. As the title suggests, this post examines arguments Gornall raised in a motion to suppress evidence in which he alleged that the investigation of the crime included certain failures to abide by the requirements of the Fourth Amendment to the U.S. Constitution.

The Court of Appeals’ opinion goes on to explain that

[o]n November 4, 2014, the Loudonville Police Department was contacted by the U.S. Department of Homeland Security in San Diego, California. The U.S. Customs and Border Protection facility in San Diego had intercepted a package from overseas containing narcotics. The package was addressed to appellant, who was employed as a kindergarten teacher by the Loudonville–Perrysville School District. Capt. James Coey of the Loudonville police contacted the U.S. Postal Service to arrange a controlled delivery of the parcel, and obtained an anticipatory search warrant for appellant's residence.

On November 13, 2014, Capt. Coey surveilled the residence along with other detectives while a postal inspector delivered the package. Appellant retrieved the parcel and took it inside his residence. Police entered shortly thereafter to conduct the search. The detectives found marijuana, a marijuana smoking pipe, a firearm, the delivered parcel of narcotics, and another parcel containing narcotics. In addition to the evidence of drug activity, they found fourteen pairs of little girls' panties and some soiled tissues next to appellant's bed. Inside a trunk behind his couch, detectives found a copy of a book titled `Show Me,' containing graphic images of nude small children.

Appellant told Capt. Coey that he ordered the drugs online from the Philippines, and he had ordered drugs from South Africa and other countries online as well. He later admitted that he had a sexual fetish for children's panties, and used them to masturbate. Officers seized appellant's computers and other electronic devices.

Police obtained a second search warrant on November 26, 2014, to search the contents of the seized computers for evidence related to trafficking in drugs and pandering obscenity involving a minor. Agents of the Bureau of Criminal Identification & Investigation (BCI & I) conducted the search of the hard drive of appellant's computer using forensic software. Nicholas Jenkins began by searching for evidence of narcotics activity. The search revealed that pictures were stored in the image files. While looking through the image files for evidence of drug activity, Jenkins found images and videos of nude children performing sexual acts, and also found videos of small children using the restroom.

After the search, the Ohio Supreme Court published its decision in State v. Castagnola, 145 Ohio St.3d 1, 46 N.E.3d 638, 2015–Ohio–1565, 46 N.E.3d 638. After reviewing the case, the State obtained a third search warrant to insulate the search of the computers in light of that decision. The third warrant was obtained on June 10, 2015, and yielded the same results as the November 26, 2014 search warrant.

Further investigation revealed that appellant had placed a hidden camera in the private restroom of his kindergarten classroom, and surreptitiously videotaped his students using the restroom, exposing their genitalia to the hidden camera.

State v. Gornall, supra.

After being convicted, Gornall appealed, arguing, among other things, that the trial judge “erred in denying defendant's motion to suppress evidence, in derogation of defendant's rights under the Fourth Amendment to the United States Constitution and article i, section 14 of the Ohio constitution.” State v. Gornall, supra. More precisely, Gornall argued that

the trial court erred in overruling his motion to suppress evidence of child pornography taken from his computer, as the warrant was issued pursuant to an affidavit which failed to set forth probable cause that such evidence would be located on his computer. 

State v. Gornall, supra. The article you can find here outlines the process, and the legal requirements, an officer uses in obtaining a search warrant. As it notes, one requirement is that the officer submit information to the Magistrate Judge from he or she seeks the warrant that establishes there is “probable cause” to believe evidence of a specific crime or crimes will be found at a specific place. As the article explains, officers often do this by submitting an affidavit, i.e., “sworn statements made under oath” to outline the facts and inferences that establish probable cause for the issuance of a warrant. That is what the officers did in this case.
 The court goes on to explain that after the

officers searched his computer pursuant to the warrant and found evidence that was later used to prosecute, and convict, Gornall, he filed the motion to suppress noted above.  State v. Gornall, supra. The Court of Appeal was not persuaded, explaining that

[Gornall] does not argue that the affidavit lacked probable cause to search the computer for evidence of narcotics activity. The trial court found that in searching for evidence of narcotics activity, evidence of child pornography would have been inevitably discovered, and did not address the issue of whether the affidavit was sufficient to provide probable cause to search the computer for evidence of child pornography.

State v. Gornall, supra.

The court went on to explain that

[p]ursuant to the inevitable discovery doctrine, illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. State v. Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763 (1985), citing Nix v. Williams, 467 U.S. 431 (1984). The inevitable discovery doctrine is applied only in limited circumstances where the state can show by a preponderance of the evidence that, despite the constitutional violation, discovery of the evidence was, in fact, inevitable. Id. at 766–767.

Nicholas Jenkins of BCI & I testified that he began by searching for evidence of narcotics activity in the web history, and for images of drug paraphernalia or pictures of drugs. Supp. Tr. 34. He found two images depicting drug activity. Supp. Tr. 34–35. In searching in the image files for the pictures of narcotics, images of child pornography showed up. Supp. Tr. 35. He could not look for evidence probative of drug activity without finding the images of child pornography. Supp. Tr. 35. Although the warrant specified that he was looking for evidence of child pornography or pandering obscenity involving a minor, he began first searching for evidence of drug activity. Supp. Tr. 43. The evidence he found of child pornography was in the files he would have been looking through to find evidence of drug activity. Supp. Tr. 44. Based on Jenkins's testimony, the trial court did not err in finding that discovery of the evidence of child pornography and pandering obscenity involving a minor was inevitable.

State v. Gornall, supra.

The court then took up Gornall’s argument that

the discovery of the evidence could not be `inevitable’ because the search warrant specifically allowed Jenkins to search for evidence of child pornography and pandering. However, Jenkins testified that he began his search with a search for evidence of narcotics activity, and discovered the pornography in the files he was looking at to find evidence of drug activity.

State v. Gornall, supra. It went on to explain that Gornall

also argues that the discovery could not be `inevitable’ because Jenkins searched the entire computer, in violation of the Ohio State Supreme Court's decision in State v. Castagnola, 145 Ohio St.3d 1, 46 N.E.3d 638, 2015–Ohio–1565, 46 N.E.3d 638.

State v. Gornall, supra.

The opinion goes on to explain that

[i]n Castagnola, the affidavit provided to obtain the search warrant stated that the defendant said he found the victim's address `online in the clerk of courts.’ Execution of the warrant led to the seizure of two computers. A search of the contents of the computers revealed over a thousand videos and images of child pornography. The Ohio Supreme Court ultimately found the search warrant for the computers was not supported by probable cause to believe a computer in the defendant's residence was used in furtherance of the alleged crimes, as the defendant did not actually use the word `online’ in his interview with the detective concerning where he found the victim's address. Id. at ¶ 10, 46 N.E.3d 638.

The court then went on to address the particularity requirement of the Fourth Amendment as it pertains to the search of files on a computer. The warrant described the objects subject to seizure from the defendant's home as `[r]ecords and documents either stored on computers, ledgers, or any other electronic recording device.’ A separate section states that if found, said items will be used as evidence in the prosecution of retaliation, criminal trespassing, criminal damaging, and possession of criminal tools.

In finding the warrant was not sufficiently particular, the court noted first that the warrant did not guide or control the analyst's discretion as to what was to be seized on the computer, allowing her to look at all the evidence on the hard drive to determine what to seize. Id. at ¶ 83, 46 N.E.3d 638. Second, the broad language clearly included items that were not subject to seizure. Id. at ¶ 84, 46 N.E.3d 638. The state argued that nothing in the record suggested that the police knew ahead of time precisely where the items were stored. The court held that the particularity issue did not relate to where the information was stored, but rather `what’ evidence the detective had a fair probability of believing was on the computer. Id. at ¶ 85, 46 N.E.3d 638.

State v. Gornall, supra.

The court goes on to note that in the Castagnola case,

the detective believed the defendant found the victim's address online, and that evidence of the online search would be useful in the prosecution of the offenses. He testified that in addition to a general Google search or online-white-pages search, he believed the defendant might have searched the clerk of courts' website for information about the victim. The detective testified that from his previous experience, he knew that an online search would create a cookie. Under the Fourth Amendment, these details should have been included in the warrant to guide and control the searcher, and sufficiently narrow the category of records subject to seizure. Id. at ¶ 87, 46 N.E.3d 638.

State v. Gornall, supra.

The Court of Appeals then took up the issue of search protocols in digital searches, explaining that the Castagnola court

rejected the contention that the Fourth Amendment requires the warrant to specify restrictive search protocols:

`In urging this court to find that the search warrant sufficiently particularized the items to be searched for, the state provides a breadth of authority rejecting the notion that a search warrant must contain a restrictive protocol, methodology, or other strategy for conducting the search in order to satisfy the Fourth Amendment. We agree that the Fourth Amendment does not require a search warrant to specify restrictive search protocols, but we also recognize that the Fourth Amendment does prohibit a `sweeping comprehensive search of a computer’s hard drive.” Walser, 275 F.3d at 986. The logical balance of these principles leads to the conclusion that officers must describe what they believe will be found on a computer with as much specificity as possible under the circumstances. This will enable the searcher to narrow his or her search to only the items to be seized. Adherence to this requirement is especially important when, as here, the person conducting the search is not the affiant. See generally United States v. Gahagan, 865 F.2d 1490, 1498–1499 (U.S. Court of Appeals for the 6th Circuit1989).’

State v. Gornall, supra (quoting State v. Castagnola, supra).

The court then explained that Gornall argued that

[t]he warrant in the instant case allowed the same sweeping comprehensive search of the hard drive as the warrant in Castagnola. We disagree. Appellant argues the warrant and affidavit should have narrowed the search to files where evidence of his drug trafficking activity could be found, such as internet search history and bookmarks, and payment programs such as Quicken and excel. However, Castagnola specifically states that

`the Fourth Amendment does not require a search warrant to specify restrictive search protocols. Further, unlike the detective in Castagnola who testified specifically as to where he expected evidence of the search for the address to be, the record in the instant case does not support a conclusion that the officers possessed any more specificity as to the location of computer files concerning appellant's drug activity than set forth in the affidavit. The warrant provided sufficient guidance to the analyst to search for only the items to be seized: evidence of possession of drugs and trafficking in drugs, and/or pandering obscenity involving a minor.’

Jenkins testified that because of the way computer systems work, you can put things anywhere, `safe’ files anywhere. Supp. Tr. 35–36. He testified that he does not search all the files on the computer, and tries to limit the search to what is pertinent in the case. Supp. Tr. 41. For example, they do not look at the pre-installed Windows files that come with the operating system. Supp. Tr. 41. He further testified that it is necessary to look at the content of the files because file names don't necessarily represent what the files are. Supp. Tr. 44. In the instant case, evidence of drug possession or trafficking activity concerning appellant's admitted online purchases of narcotics could have been `hidden’ almost anywhere on the computer. The instant case is distinguishable from Castagnola, where the only evidence regarding the use of the defendant's computer in furtherance of the crime was an inference drawn by the police officer that he might have found the victim's address through an online search. Under the circumstances of the instant case, the warrant set forth what the officers believed would be found on the computer with as much specificity as possible. 

State v. Gornall, supra.

The Court of Appeals therefore rejected Gornall’s first argument on appeal.  State v. Gornall, supra. It also rejected the other arguments he made on appeal, e.g., that the “aggregate sentence of 56 years” which the trial judge imposed on him “was disproportionate to his crimes” and that the fine of $15,700 that the trial judge also imposed on him was not an abuse of the judge’s discretion. State v. Gornall, supra.

Aggravated identity theft, Repeated Use of a Person's Identity 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 by explaining that

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.

This case presents the question, not previously addressed by this Court, of whether evidence of a defendant's repeated submission of false identifying information as part of successful applications to a government agency is sufficient to permit a reasonable jury to find that the defendant knew that the information belonged to a real person.

U.S. v. Doe, supra. This post only examines Doe’s challenge to the government’s having proved an essential element of the offense; it does not examine his argument regarding his sentence.

The Court of Appeals appended this footnote to the first mention of “John Doe” in its opinion: “To the date of this writing the Defendant, who has refused to provide his name, has not been affirmatively identified and is referred to as `John Doe.’” U.S. v. Doe, supra.

The court goes 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.

On 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.

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.

U.S. v. Doe, supra.

The Court of Appeals then takes up the legal issue involved in this appeal:

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. This post only examines Doe’s challenge to the sufficiency of the evidence; it does not examine the sentence.

The Court of Appeals analyzed the arguments Doe made on appeal in the order in which they are set out above. U.S. v. Doe, supra. It began by outlining the standard of review it employ in reviewing a conviction:

This 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 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443U.S. 307, 319 (1979)).

U.S. v. Doe, supra (emphasis in the original).

The went on to find that the “evidence was sufficient”. U.S. v. Doe, supra. And it explained that

Title 18 U.S. Code § 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. Code § 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 the issue in the case, 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.Code § 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 evidence. See Miranda–Lopez, 532 F.3d at 1040 (citing United States v. Villanueva–Sotelo, 515 F.3d 1234, 1249 (U.S. Court of Appeals for the D.C. Circuit 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.

U.S. v. Doe, supra.

The court then noted that

[w]hen `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.’ United States v. Nevils, supra (quoting United States v. Eaglin, 571 F.2d 1069, 1076 (1977)).

U.S. v. Doe, supra.

It went on to explain that

[t]he 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 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 of Appeals therefore held 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 (U.S. Court of Appeals for the 1st Circuit 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 (U.S. Court of Appeals for the 11th Circuit 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 (U.S. Court of Appeals for the 11^th Circuit 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 (U.S. Court of Appeals for the 11<sup>th</sup> Circuit 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 (U.S. Court of Appeals for the 8^th Circuit 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 of Appeals also noted 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.

(And if you are wondering, the Court of Appeals affirmed Doe’s conviction and his sentence. U.S. v. Doe, supra.)