United States v. Kiza

• Decision Date: 01 May 2017
• Docket Number: No. 16-4165,16-4165
• Citation: 855 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcel KIZA, a/k/a Amuri Ntambwe Kiza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

855 F.3d 596

UNITED STATES of America, Plaintiff-Appellee,

v.Marcel KIZA, a/k/a Amuri Ntambwe Kiza, Defendant-Appellant.

No. 16-4165

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2017

Decided: May 1, 2017

ARGUED: Melissa Jane Warner, LAW OFFICE OF MELISSA J. WARNER, Glen Allen, Virginia, for Appellant. Heather Hart Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before DUNCAN, AGEE, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Agee and Judge Keenan joined.

DUNCAN, Circuit Judge:

Marcel Kiza, a.k.a. Amuri Ntambwe Kiza ("Defendant"), was convicted of theft of government property in violation of 18 U.S.C. § 641. Defendant appeals, arguing primarily that social security survivors' benefits are not a thing of value within the meaning of § 641. For the reasons that follow, we affirm.

I.

In light of the somewhat intricate facts before us, we begin with an overview of the statutory context. We then turn to Defendant's particular circumstances.

A.

The benefits at issue in this case are survivors' benefits—that is, benefits paid to eligible surviving spouses and children. Those benefits come from the Federal Old-Age and Survivors Insurance Trust Fund (the "Trust Fund"), one of several trust funds Congress established to manage benefits programs. See 42 U.S.C. § 401(a).¹ The Trust Fund is funded by designated appropriations "from the general fund in the Treasury" based on actual payroll taxes. Id. In addition to appropriations, the Trust Fund also controls "other assets," including "gifts and bequests." Id. ; see also id. § 401(i).

To oversee the Trust Fund, Congress created a Board of Trustees, composed of four government officials and two members of the public nominated by the President.

Id. § 401(c). The Board of Trustees holds the Trust Fund, reports to Congress on its operation and "actuarial status," recommends improvements to its administration, and notifies Congress when the amounts in the fund are "unduly small." Id. As to its operation, Congress stipulated that the Trust Fund would reimburse the Treasury's general fund for certain administrative costs related to benefits programs paid out of the Treasury's general fund. See id. § 401(g).

B.

Defendant immigrated to the United States in 1991 and soon thereafter applied for permanent residence using the name Ntambwe Kiza Amuri. The government granted his application, assigning him an Alien Registration Number ending in 21. On December 9, 1991, Defendant applied for a social security number using the name Amuri Ntambwe Kiza. The government assigned him a social security number ending in 53.

As Amuri Ntambwe Kiza, Defendant applied for social security benefits twice, first on November 18, 2005, and again on February 22, 2007, but the government denied both applications. On at least one of those applications, Defendant represented that his children were G.K. and N.K., that he was married to Afia Bubanji Kiza, and that his social security number ended in 53.

In 2007, Defendant applied for naturalization under the name Ntambwe Kiza Amuri using his Alien Registration Number ending in 21 and social security number ending in 53. Again, he listed his children as G.K. and N.K. Defendant also indicated that he would like to change his name at the time of naturalization to Marcel Joshua Kiza. That name change became effective with his naturalization on April 18, 2007.

On August 29, 2007, Defendant, as Marcel Joshua Kiza, applied for another social security number, using as proof of his eligibility two documents: his naturalization certificate and Alien Registration Number ending in 21. On the application, Defendant falsely stated that he had never filed for or received a social security number card. He received a new social security number ending in 31.

Using the identity Marcel J. Kiza, in late 2010 Defendant applied for social security survivors' benefits for minors G.K. and N.K. On that application, Defendant represented that Amuri Ntambwe Kiza, assigned social security number ending in 53, had died on August 30, 2010, and that therefore G.K. and N.K. were entitled to benefits. The Social Security Administration ("SSA") approved benefits and assigned Defendant as the representative payee for the children. Defendant completed payee reports to account for the monies he received. From 2011 until August 2013, as the representative payee for G.K. and N.K., Defendant received survivors' benefits totaling $51,860.

C.

On March 18, 2015, a grand jury indicted Defendant of one count of theft of government property, in violation of 18 U.S.C. § 641. The trial began on October 5, 2015. Because Defendant chose not to testify and presented no evidence at trial, all of the witnesses and exhibits came from the government.

To explain to the jury the nature of social security benefits, at trial the government called as a witness Gavi Simms, a special agent with SSA's Office of the Inspector General. Agent Simms testified that SSA is an agency of the United States and asserted that property dispersed by SSA is therefore property of the United States. He also explained that money paid by taxpayers goes into the Trust Fund, which is a government creation. SSA determines who is qualified to receive certain benefits. If SSA designates benefits to go to children under the age of 18, it appoints a representative payee to receive those benefits on behalf of the children. Agent Simms further explained that the money paid to recipients as benefits is issued from the U.S. Treasury. Referencing Defendant's application for social security survivors' benefits provided by the government, Agent Simms testified that Defendant applied for, and received as representative payee, social security survivors' benefits for G.K. and N.K.

The government also offered evidence and witnesses to show that Defendant created two identities and used those identities to perpetrate the fraud. Special Agent Henry Scott, also from SSA's Office of the Inspector General, testified that he interviewed Defendant at his home as part of SSA's investigation into his receipt of social security benefits. Defendant, identifying himself as Marcel Kiza, indicated that he was married to Afia Kiza and that they shared two children, G.K. and N.K. Agent Scott further testified that when he confronted Defendant with the identity of Amuri Kiza, "the story changed," and Defendant said that Amuri Kiza was the biological father of the children and had "died in a car accident in Congo in 2008." J.A. 53.

In addition to Defendant's conflicting statements at his interview, the government also introduced evidence at trial to show that Marcel Kiza and Amuri Kiza are the same person. A fingerprint examiner testified that the fingerprints taken from Marcel Joshua Kiza by the Virginia State Police and Amuri Ntambwe Kiza by U.S. Citizenship and Immigration Services belonged to the same person and that they also matched the fingerprints taken from Defendant at the time of his arrest. The government proffered photographs of driver's licenses Defendant obtained from the Virginia Department of Motor Vehicles under the identities of Amuri Ntambwe Kiza and Marcel Joshua Kiza.

To further confirm Defendant's double identities, the government called Jack Bubanji as a witness. Bubanji testified to knowing Defendant because Defendant had lived with him and his sister, Afia, for four years and that Bubanji called Defendant his brother-in-law. He said Defendant had two children with Afia, a daughter G. and a son N. Bubanji knew Defendant as Marcel Kiza, but said people asked for "Amuri Kiza Ntambwe, something like that," when they visited. J.A. 76. Bubanji never knew Defendant to have a twin brother.

During cross-examination Bubanji testified that Afia was not present in court, that he did not currently live with her, and that he did not know government agents had spoken with her. Defense counsel then inquired whether Bubanji was aware that the government had initiated deportation proceedings against Afia Kiza as part of the defense's strategy to impeach Bubanji as biased against Defendant. Defense counsel argued that Afia Kiza "would not have otherwise been on immigration radar except for th[e] investigation" into Defendant. J.A. 85. The government objected, and the district court sustained, finding that Bubanji's knowledge of deportation proceedings against his sister had only "very tenuated" relevance and risked confusing the jury by raising a speculative "sub issue" about why the government began deportation proceedings against Afia Kiza. J.A. 86.

At the end of the government's case, Defendant moved for a judgment of acquittal. The district court denied the motion.

On October 6, 2015, a jury found Defendant guilty of the single charge in the indictment: theft of government property in violation of 18 U.S.C. § 641. Defendant timely appealed.

II.

To obtain a conviction under 18 U.S.C. § 641, the government must establish beyond a reasonable doubt that: (1) the money or property described in the indictment is money or a thing of value of the United States (2) that the defendant stole, fraudulently received, or converted to his own use (3) with the intent to permanently or temporarily deprive the government of that money or thing of value. United States v. Hamilton , 699 F.3d 356, 363 (4th Cir. 2012). On appeal, Defendant argues that the government failed to prove each of these elements and the district court therefore erred in denying his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Defendant also argues that the district court erred by limiting his cross-examination of Bubanji, a government witness. We address each argument in turn.

A.

We review de novo both the essential statutory elements of a crime and a district court's...