U.S. v. Delva
| Decision Date | 29 April 2019 |
| Docket Number | No. 16-12947,16-12947 |
| Citation | 922 F.3d 1228 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bechir DELVA, Dan Kenny Delva, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Brandy Brentari Galler, U.S. Attorney's Office, WEST PALM BEACH, FL, John Richard Byrne, Leon Cosgrove, LLP, CORAL GABLES, FL, Daren Grove, Tonya R. Long, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, for Plaintiff-Appellee
Richard Lawrence Rosenbaum, Richard Rosenbaum, PA, FORT LAUDERDALE, FL, for Defendant-Appellant
Before MARCUS, GRANT and HULL, Circuit Judges.
Defendants Bechir Delva and Dan "Kenny" Delva are brothers who were convicted of seven crimes arising out of their identity theft and tax fraud operations. After a joint jury trial, the Delvas appeal their convictions and sentences for conspiracy to possess 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
On appeal, Bechir and Kenny raise separate and joint challenges to their convictions and sentences. First, Bechir attacks his convictions on the ground that the district court erred in denying his motion to suppress the evidence found during a warrantless search of his vehicle. Second, Kenny challenges the sufficiency of the evidence supporting each of his convictions. Together, Bechir and Kenny argue that: (1) the district court erred by admitting at trial the government’s expert testimony as to the terminology and jargon used in identity theft and tax fraud crimes; and (2) the district court’s errors singularly and cumulatively violated their constitutional rights to a fair trial and due process of law.
As to their sentences, Bechir and Kenny argue that the district court erred in applying an enhancement for possession of a firearm in connection with their offenses. Lastly, Kenny contends that his total 84-month sentence is substantively unreasonable.
After careful review of the record and the parties’ briefs, and with the benefit of oral argument, we affirm both Delvas’ convictions and sentences.
We describe the government’s June 9, 2014, undercover investigation into the Delvas’ fraud operations, including the federal agents’ search of Bechir’s vehicle and the townhouse where the fraud was conducted. This investigation and the evidence seized from the car and townhouse formed the basis of the federal prosecution of this case. Our description is based on the evidence presented at trial, as well as testimony during a pre-trial suppression hearing.
A cooperating source, McKenzie Francois, told federal agents that Bechir and Kenny Delva were conducting identity theft and tax fraud operations out of a townhouse located within a gated community complex in Miramar, Florida. Acting on this information, the Agents set up an undercover operation with Francois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin Deslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security Investigations and Special Agent Brad Cohen from the Internal Revenue Service ("IRS") met with Francois at a staging location. The Agents equipped Francois with a video and audio recording device in a backpack and followed him to the townhouse in question. One Agent parked his car with a view of the townhouse’s front door, while other Agents parked where they could observe the building’s rear.
At approximately 12:05 p.m., Francois entered the townhouse and stayed for about an hour. Bechir, Kenny, and others were present in the townhouse at that time. While inside, Francois took several pictures with his cell phone and texted them to the Agents. The pictures showed: (1) individuals sitting on a couch using laptops; (2) a money counter; (3) a white shoebox lid flipped upside down with numerous debit cards and papers containing personal identifying information inside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall. Generally, the personal identifying information included individuals’ names, dates of birth, and Social Security numbers, which we collectively refer to as "PII."
Consistent with these photographs, the video recording covertly captured by Francois depicted papers listing PII and debit cards visible on the ottoman and a rifle leaning against a wall. Kenny and Bechir could be heard speaking on the recording. Bechir was sitting on a couch facing the ottoman where the debit cards and papers were located. At one point on the video, Kenny is holding papers and a laptop power cord. The video also showed that, soon after Francois arrived, the individuals discovered a government Agent surveilling the townhouse. This prompted a discussion about whether the Agent could "pick up" on who was "sending things" over the internet. They also talked about packing up, "cleaning up" the townhouse, and leaving to "work" at a hotel. Kenny, in particular, talked about leaving the townhouse and going to a hotel where it would be safer to work. Around this time, someone else accused Kenny of looking scared, and Bechir referenced someone going to jail.
After leaving the townhouse, Francois met with the Agents again and confirmed that individuals in the townhouse were conducting fraud activities. Francois also told the Agents that the individuals noticed a law enforcement officer outside the townhouse and were worried that they were being surveilled. As such, they talked about "cleaning" the townhouse and getting rid of any illicit materials as soon as possible. The Agents then did the following: Agent Eustice returned to the gated community to watch the townhouse; Agent Deslauriers took the video equipment back to his office for review; and Agent Goodwin went to secure a federal search warrant.
At about 2:00 p.m., Agent Eustice returned to the townhouse and saw several vehicles lined up in front of the residence. Agent Eustice first saw an unidentified male put a bag into the back of a white Camry and drive away from the townhouse. Agent Eustice tried to follow the car, but lost it at the front gate. Agent Eustice then saw another male, later identified as Bechir, walk down a hallway to the townhouse door. Bechir left the townhouse carrying three white shoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle. Bechir then departed the townhouse (Unit 105, Building 2492) and drove along the main Centergate Drive. After driving around a curve in the road, Bechir got off that main drag and turned into one of the other apartment communities within the complex. Bechir parked and began walking away from the car.
By this time, two other Agents had joined Agent Eustice at the scene, and they approached Bechir together. When asked, Bechir denied owning the Mercedes and refused to provide the officers with any identification. The Agents then handcuffed Bechir and eventually placed him in the back of a police car. Looking in the windows of the parked Mercedes, Agent Eustice saw the three shoeboxes that Bechir had loaded into the car. He noticed that one box was ajar and appeared to have credit cards inside.
At approximately 4:15 p.m., Agent Deslauriers returned to the scene after watching the undercover video. Although part of the recorded conversation was in Haitian Creole, which Agent Deslauriers did not understand, he noticed a "heightened sense of urgency at the end" of the video, which corroborated what Francois had told them.
When Agent Deslauriers arrived, Agent Eustice fully briefed him on what had transpired with Bechir. Agent Deslauriers recognized Bechir from the undercover video. When he looked in the back of the Mercedes, he also saw the boxes. The boxes looked similar to the box lid Agent Deslauriers saw in Francois’s pictures and on the undercover video. Additionally, one of the boxes was slightly ajar, and Agent Deslauriers could see what looked like credit cards inside.
Based on the video, the pictures, and the information provided by Francois, Agent Deslauriers believed there was PII and fraudulent credit cards in the box. Agent Deslauriers then opened the Mercedes door, did a cursory search of the boxes, and found stacks of credit cards and papers listing PII. He took a few photographs and then replaced everything.
Meanwhile, Agent Goodwin secured a search warrant and returned to the townhouse around 8:30 p.m. The Agents then conducted a thorough search of the Mercedes and the townhouse. Within the three boxes in the Mercedes, the Agents found (1) hundreds of prepaid debit cards, (2) Bechir’s T-Mobile bill, (3) a bill addressed to Kenny, and (4) scores of documents containing PII, including notebooks, handwritten lists, and Excel spreadsheets. The documents with the PII listed the names, birthdates, and Social Security numbers of hundreds of individuals. In the black backpack, the Agents found a laptop computer, as well as additional papers with PII.
In the townhouse, the Agents discovered a safe with $ 29,000 inside, two money counters, and even more credit cards and more documents listing PII. The Agents also found (1) tax guidelines from Republic Bank and Trust Company, (2) documents listing an electronic filing identification number ("EFIN") for Gustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a Playhouse Gentleman’s Club VIP card in Bechir’s name, and (5) a letter to Kenny from the IRS. The Agents also found two rifles and a handgun, with multiple corresponding magazines and rounds of ammunition, and receipts showing that Kenny had purchased the firearms.
In the townhouse garage, Agents found Bechir’s Haitian passport, Kenny’s Audi service contract, Kenny’s insurance...
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