U.S. v. Hurtado, 07-11138 Non-Argument Calendar.

• Decision Date: 21 November 2007
• Docket Number: No. 07-11138 Non-Argument Calendar.,07-11138 Non-Argument Calendar.
• Citation: 508 F.3d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jairo Roberto HURTADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

508 F.3d 603

UNITED STATES of America, Plaintiff-Appellee, v. Jairo Roberto HURTADO, Defendant-Appellant.

No. 07-11138 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

November 21, 2007.

Brian L. Stekloff, Vincent P. Farina, Asst. Fed. Pub. Defenders, Miami, FL, for Hurtado.

Sally M. Richardson, Anne R. Schultz, Asst. U.S. Atty., Dawn Bowen, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After a jury trial, Jairo Roberto Hurtado appeals his two convictions for knowingly possessing and using, without lawful authority, the means of identification of another person during and in relation to the commission of another enumerated felony, in violation of 18 U.S.C. § 1028A(a)(1). Hurtado's appeal presents two issues of first impression regarding the statutory interpretation of § 1028A(a)(1), namely whether § 1028A(a)(1) requires the government to prove (1) that Hurtado stole the identification of another person, in order to show the possession or use was "without lawful authority," and (2) that Hurtado knew that the identification in the name of Marcos Alexis Martinez Colon, which he was using, belonged to another actual person. After review, we affirm Hurtado's § 1028A(a)(1) convictions.

I. BACKGROUND

The indictment against Hurtado contained these six counts: (1) one count of knowingly making false statements in a passport application, in violation of 18 U.S.C. § 1542; (2) one count of knowingly making false statements and misrepresentations of material facts, in violation of 18 U.S.C. § 1001(a)(2); (3) two counts of knowingly possessing and using the means of identification of another during and in relation to the commission of another enumerated felony (here the §§ 1542 and 1001(a)(2) felonies), in violation of 18 U.S.C. § 1028A(a)(1), and (4) two counts of falsely representing himself as a United States citizen, in violation of 18 U.S.C. § 911.

At trial, the government presented evidence that, in August 2006, Hurtado submitted a passport application in the name of Marcos Alexis Martinez Colon. As supporting identification documents, Hurtado used a birth certificate and driver's license in the same name of Marcos Alexis Martinez Colon.

Daniella Virues is a clerk employed by Miami-Dade County in the facility where Hurtado filed the passport application. At trial, Virues identified the documents that Hurtado filed. Virues further testified that her facility requires all passport applicants, such as Hurtado, to sign the passport application in front of the clerk and take an oath certifying that everything in the application is true to the best of their knowledge.

Noel Medina is a passport specialist for the United States Passport Agency. Medina testified that he reviewed Hurtado's passport application at the time it was submitted and noted several indications of fraud in the application and supporting identification documents. Among other things, Medina noticed that (1) the ages of the applicant's parents were written instead of the requested dates of birth, (2) the supporting driver's license was issued shortly before the passport application was submitted, and (3) the signature was printed with the surname Martinez misspelled. However, Medina did think that the Puerto Rican birth certificate submitted with the application was authentic.

After Medina's review, Hurtado's passport application was assigned to Aaron Wilson, a supervisory special agent with the Diplomatic Security Service, a government agency that investigates passport fraud. Wilson verified that Colon's driver's license, birth certificate, and social security number, all used by Hurtado, were in fact authentic. However, Wilson noticed a discrepancy of four inches between the height listed on the passport application and the driver's license. Agent Wilson contacted the individual claiming to be the applicant Colon (who, in fact, was Hurtado) and set up a meeting to review the passport application.

On October 19, 2006, Hurtado, posing as Colon, met with Wilson, Special Agent Christopher Dowling, and Passport Specialist Michelle Vega. The agents initially questioned Hurtado in English. After Hurtado appeared to have trouble understanding some of the questions, Vega served as a Spanish interpreter. At first, Hurtado persisted that he was Colon and that all the information in his passport application was accurate, including the fact that he was from Puerto Rico and was a United States citizen.

Hurtado, however, failed to answer a number of the questions asked by the agents. Hurtado could not tell them the names of the schools he had attended. Hurtado also told the agents that he had never been married and did not have any siblings. However, the agents already had obtained information from Puerto Rico that showed Colon was married in 2003 and did have siblings. The agents then asked Hurtado a series of basic questions about Puerto Rican geography and culture that native Puerto Ricans likely could answer. Hurtado could not answer any of them, but tried to explain this by saying that his family had moved to Colombia when he was very young.

Agent Dowling, having grown suspicious by this point, told Hurtado that it was a crime to lie to federal agents and it was in his best interest to tell the truth. Agent Dowling asked Hurtado what his real name was, and Hurtado admitted that his real name was Jairo Hurtado, not Colon, and that he was from Medellin, Colombia. The agents arrested Hurtado, and Vega read him his Miranda¹ rights in Spanish.

Upon searching Hurtado's person, agents discovered a driver's license, a bank debit card, a library card, and a paycheck,² all of which were issued in Colon's name. A later search also revealed that Hurtado had registered and insured a car in Colon's name. The driver's license and bank debit card both had Hurtado's picture on them, even though they were issued in Colon's name. It appeared that Hurtado himself had been making deposits into the bank account linked to the Colon debit card.

When the interview continued, Marina Zapata, a secretary for the Diplomatic Security Service, again read the Miranda warnings to Hurtado in Spanish. Hurtado then was given a form with the Miranda rights written in Spanish. Hurtado read the form, said he understood the Miranda rights, and signed the line on the form indicating that he understood his rights.

Marcos Fernandez, a special agent with the Diplomatic Security Service, subsequently joined Agent Dowling in the interview. Fernandez is a native Spanish speaker. Fernandez again reviewed the Miranda rights with Hurtado in Spanish, and Hurtado said he understood his rights. Hurtado then signed a form waiving his Miranda rights and indicated that he wished to continue the interview. Hurtado repeated that his real name was Jairo Hurtado and said that he had paid $1500 to an individual in Boston known as "Orlando" for the birth certificate and social security card bearing Colon's name. Hurtado then wrote out and signed a statement in Spanish confessing that (1) he bought a visa in Colombia to come to the United States, and (2) he later bought identification papers from a friend in Boston so he could obtain a passport and visit his family in Colombia.

After the questioning ended and while Hurtado was waiting to be transferred to the federal detention center, Hurtado told Trey Terry, another special agent with the Diplomatic Security Service, that he bought a visa to come to the United States for $7000.

Juan Machado, an investigator for the Demographic Registry in Puerto Rico, also testified. Machado had reviewed the birth certificate in Colon's name that was used by Hurtado. Machado verified that the information on the birth certificate was accurate, including the fact that Colon was born in Puerto Rico. According to Machado, the Demographic Registry issued three birth certificates for Colon in 2005 and is the only agency authorized to issue Puerto Rican birth certificates. Only the individual named in the birth certificate, or someone with written authorization from that individual, can obtain a birth certificate from the Demographic Registry. Machado also testified that Colon himself requested two of the birth certificates and that a man named Luis Riserio requested the third birth certificate by presenting a letter of authorization. The Demographic Registry, however, did not contact Colon to verify the authenticity of the letter used by Riserio.

Javier Montero, a special agent with the Social Security Administration, testified that the United States Social Security Administration issued a social security number to Colon in 1985.

At trial, the government did not present any evidence as to how the real Colon's birth certificate and social security number had left his possession.³ There was also no evidence that Hurtado had any credit cards in Colon's name (as opposed to the bank debit card) or that Hurtado's use of Colon's name had negatively impacted the finances of the real Colon.

At the close of the government's case, Hurtado submitted a written motion for a judgment of acquittal on the two § 1028A(a)(1) counts. Orally denying the motion, the district court rejected Hurtado's argument that there was no identifiable victim and that he should be acquitted because there was no "theft" involved here, which, Hurtado argued, § 1028A(a)(1) was intended to deter. The district court also found that Colon was without legal authority to transfer the use of his identification documents to Hurtado in any event.

In closing argument, defense counsel conceded guilt on all of the counts except the two § 1028A(a)(1) counts. The jury found Hurtado guilty on all six counts of the indictment. The district court sentenced Hurtado to six months' imprisonment as to the counts under §§ 911, 1001(a)(2), and 1542, to be served concurrently, and 24 months'...