                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 6, 2014
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 12-2048
 v.

 GLORIA PORTER,

       Defendant-Appellant.


                  Appeal from the United States District Court
                         for the District of New Mexico
                       (D.C. No. 2:10-CR-03404-RB-1)


Brock Benjamin, Benjamin Law Firm, El Paso, Texas, for Defendant-Appellant.

Jennifer M. Rozzoni (Kenneth J. Gonzales, former United States Attorney, with
her on the brief), Office of the United States Attorney, District of New Mexico,
Albuquerque, New Mexico, for Plaintiff-Appellee.


Before HOLMES, HOLLOWAY, and MURPHY, Circuit Judges.


HOLMES, Circuit Judge.


      Following a jury trial, Defendant-Appellant Gloria Porter was convicted of

105 counts of wire fraud, one count of mail fraud, and one count of identity theft.

Ms. Porter appeals her convictions, claiming that the district court incorrectly
instructed the jury with respect to aggravated identity theft and that the evidence

was insufficient to support her convictions for wire fraud and mail fraud. We

affirm Ms. Porter’s convictions.

                                         I

      The National Federation of Federal Employees (“NFFE”) is an independent

federal union that at material times represented approximately 115,000 federal

workers across the country. In 1999, the NFFE affiliated with the International

Association of Machinists (“IAM”). The NFFE is comprised of five councils,

which in turn are made up of approximately two hundred “locals.” Members of a

local pay their dues by permitting money to be withdrawn electronically from

their paychecks. The money is then transmitted to the NFFE national office. A

portion of the dues are then rebated back to the councils. Councils provide

rebates to locals to encourage them to enroll new members; they also provide

limited reimbursements to locals for office-equipment purchases and for training

expenditures. Money does not flow from locals to councils.

      Ms. Porter joined the NFFE in 1992. She began working at White Sands

Missile Range in New Mexico in 1999. Ms. Porter was a member of Local 2049

at White Sands and served as its president. She also served as secretary/treasurer

of the Armed Material Command (“AMC”) Council (one of the NFFE’s five

councils) and as national vice president of the NFFE. Ms. Porter was

secretary/treasurer of the AMC Council from 2002 to 2008, and was the only

                                         2
active signatory on the AMC Council’s bank account. An ATM/debit card for the

account was issued in her name as early as 2004.

      The AMC Council used an audit committee to ensure that financial records

were “kept in accordance with good financial procedures.” Aplt. App. at 358

(Trial Tr., dated June 27–30, 2011). Locals and councils only made expenditures

by check; those checks required two signatures. Expenditures had to be

authorized by the executive board or, in the case of large expenses, by all of the

locals comprising a council. Further, as of January 2, 2005, the IAM instituted a

policy forbidding members from using debit and credit cards. The policy applied

to the entire union, including locals.

      On December 20, 2010, a federal grand jury sitting in New Mexico returned

a 107-count indictment against Ms. Porter. Id. at 16–23 (Indictment, filed

Dec. 20, 2010). The indictment charged Ms. Porter with 105 counts of wire fraud

in violation of 18 U.S.C. § 1343 (Counts 1 through 105), one count of mail fraud

in violation of 18 U.S.C. § 1341 (Count 106), and one count of aggravated

identity theft in violation of 18 U.S.C. § 1028A (Count 107). Id.

      Ms. Porter was tried in the U.S. District Court for the District of New

Mexico. At trial, the evidence revealed that starting in August 2004 and

throughout her time as an NFFE officer, Ms. Porter created fraudulent bank

statements on her computer and sent them to NFFE officers, while having the

authentic bank statements sent to her home address. Ms. Porter continued to send

                                         3
fraudulent bank statements to NFFE officers through 2008. In May 2008, Ms.

Porter provided only the AMC Council’s check register to an audit committee,

despite being asked to provide bank statements, cancelled checks, and

corresponding receipts or invoices. After several more delays, in August 2008,

Ms. Porter mailed a packet of what was later determined to be fraudulent bank

statements to the AMC Council’s audit committee. Thereafter, the NFFE took

away Ms. Porter’s authority over the union’s bank account, and, after both the

NFFE and IAM conducted their own audits of their accounts, the matter was

turned over to the United States Department of Labor (“DOL”) for further

investigation.

      The Labor-Management Reporting and Disclosure Act of 1959 (the “Act”),

Pub. L. No. 86-257, 73 Stat. 519 (codified as amended in scattered sections of 29

U.S.C.), covers all unions with private sector employees, federal employees, and

postal service employees. The DOL’s Office of Labor Management Standards

(“OLMS”) has enforcement authority regarding the Act. The Act requires unions

to submit so-called “LM” reports to ensure fiscal and financial reporting. The

DOL has a legal duty to collect and publish those reports. Of particular relevance

to this case, LM-3 reports cover labor unions with receipts of between $10,000

and $250,000 per fiscal year. At trial, Exhibits 74 through 79 were admitted;

these were LM reports filed with the DOL on behalf of the NFFE’s AMC Council.

In the ordinary course of business, the reports would be received and stamped by

                                        4
the DOL’s OLMS in Denver, Colorado, and then mailed to the DOL’s national

OLMS in Washington, D.C., where the reports would receive a second stamp.

      Exhibit 79 is a report that was filed on behalf of the AMC Council for

2006. Ms. Porter’s name and address appear on the front page of the document.

In addition to Ms. Porter’s signature, the report contains what appears to be the

signature of Sandra Moilanen—then president of the AMC Council. Ms.

Moilanen denied receiving or signing this report. Ms. Porter testified that she

signed all of the LM reports presented at trial, and sent them off to someone else

for additional signatures.

      Christiane Abendroth, a DOL investigator, analyzed the financial

statements from Wells Fargo Bank for the AMC Council and Local 2049 and

summarized the financial losses to both entities. Ms. Abendroth’s investigation

revealed that the AMC Council received income of $151,276 between 2001 and

2008. A total of $7,925 was intended for Local 2049, but was diverted to the

AMC Council’s account. Additionally, $8,600 was transferred from the Local

2049 account to the AMC Council’s account, even though funds were not

supposed to flow from the locals to the councils. Ms. Porter allegedly raided the

AMC Council’s account in perpetrating her fraud.

      Ms. Abendroth testified that she examined each purchase reflected on the

AMC Council’s bank statements and determined whether it was authorized or

unauthorized. She confirmed that all of the purchases had been effected through

                                         5
wire communications that crossed state lines, for purposes of the wire fraud

charges. At trial, multiple witnesses who were associated with businesses that

appeared as payees on the AMC Council’s bank statements—including a beauty

salon, a day spa, and a home-improvement store—testified that Ms. Porter made

payments with the AMC Council’s visa debit card. Indeed, according to the

testimony, one item purchased with the debit card—a refrigerator from Lowe’s, a

home-improvement store—was delivered to Ms. Porter’s home address.

      At the close of trial, Ms. Porter moved for a judgment of acquittal pursuant

to Federal Rule of Criminal Procedure 29 with respect to certain wire fraud

counts—specifically, Counts 3–17, 20, 21, 26, 27, 28, 54, 55—and also with

regard to the mail fraud count (Count 106) and the aggravated identity theft count

(Count 107). The district court denied Ms. Porter’s motion, and the jury returned

guilty verdicts on all 107 counts of the indictment.

       Ms. Porter raises two issues on appeal: first, whether the district court

erred by instructing the jury that a signature is a “means of identification” for

purposes of the aggravated identity theft offense; and second, whether the

evidence was sufficient to support her convictions for mail fraud and wire fraud.

We take up these issues in turn.

                                         II

      The aggravated identity theft statute provides: “Whoever, during and in

relation to any felony violation enumerated in subsection (c), knowingly transfers,

                                          6
possesses, or uses, without lawful authority, a means of identification of another

person shall, in addition to the punishment provided for such felony, be sentenced

to a term of imprisonment of 2 years.” 1 18 U.S.C. § 1028A(a)(1) (emphasis

added). The statutory phrase “means of identification” is defined in another

provision, 18 U.S.C. § 1028(d)(7).

      Ms. Porter claims that the district court erred in instructing the jury on the

aggravated identity theft charge. The jury instruction for aggravated identity theft

read, in pertinent part: “A person’s signature is a ‘means of identification.’”

Aplt. App. at 47 (Jury Instruction No. 14, filed June 30, 2011). Specifically, Ms.

Porter argues that the word “signature” is not expressly mentioned in the statutory

definition of “means of identification” found in § 1028(d)(7) and a signature

should not be viewed as a form of a “name”—a term that does appear in that

definition. She suggests that equating a signature to a “name” is “quite a jump.”

Aplt. Opening Br. at 11. Ms. Porter further submits that the district court’s

interpretation of the statutory definition—which seemingly was based upon the



      1
              In this case, mail fraud serves as the underlying felony for Ms.
Porter’s aggravated identity theft conviction. See 18 U.S.C. § 1028A(c)(5)
(defining “felony violation enumerated in subsection (c)” to include “mail, bank,
and wire fraud”). We note that while wire fraud may generally serve as a basis
for an aggravated identity theft charge, in Ms. Porter’s case, she was only charged
with transferring, possessing, or using the identity of another in relation to mail
fraud. Cf. Aplee. Br. at 2 n.2 (conceding that we must vacate the aggravated
identity theft conviction if the evidence is insufficient to support the mail fraud
conviction).

                                          7
Ninth Circuit’s decision in United States v. Blixt, 548 F.3d 882 (9th Cir.

2008) 2—sweeps too broadly.

      “We review questions of statutory interpretation de novo.” United States v.

Nacchio, 573 F.3d 1062, 1087 (10th Cir. 2009). To the extent that Ms. Porter

presents a challenge to the district court’s instruction because the court allegedly

failed to accurately give the jury the correct law, we likewise review this

challenge de novo. See United States v. Sturm, 672 F.3d 891, 897 (10th Cir.

2012) (en banc).

      We begin by setting forth § 1028(d)(7)’s definition of “means of

identification” and examining the Ninth Circuit’s decision in Blixt, which we

ultimately find persuasive insofar as it holds that a signature is a form of a

“name”—a term that is expressly included in the definition of “means of

identification.” We then address Ms. Porter’s arguments to the contrary and

conclude that none of her arguments alters our conclusion.



      2
              The district court noted: “In regard to the [aggravated identity theft]
instructions, I had read a 9th Circuit case in regard to the use of a signature and
whether that, as a matter of law, constitutes aggravated identity theft, and I agree
with the analysis of the 9th Circuit, and I think a plain reading of the statute . . .
would likewise support that, so that would be the instruction that I will give.”
Aplt. App. at 794. Although the district court did not identify the name of the
Ninth Circuit case, we can reasonably infer—based on the context of the district
court’s statement and the substance of the Blixt case—that the district court was
referring to Blixt. However, given our obligation to independently interpret the
statute in assessing the merits of Ms. Porter’s challenge, the outcome here does
not turn on whether our inference is correct.

                                           8
                                         A

      Congress has defined the term “means of identification” as

            any name or number that may be used, alone or in conjunction
            with any other information, to identify a specific individual,
            including any—

            (A) name, social security number, date of birth, official State or
            government issued driver’s license or identification number, alien
            registration number, government passport number, employer or
            taxpayer identification number;

            (B) unique biometric data, such as fingerprint, voice print, retina
            or iris image, or other unique physical representation;

            (C) unique electronic identification number, address, or routing
            code; or

            (D) telecommunication identifying information or access device.

18 U.S.C. § 1028(d)(7) (emphases added). Notably, a “name” may conceivably

constitute a “means of identification” in two ways under the statute. Standing

“alone” it may constitute a “means of identification.” And, pursuant to

subsection (A), a “name” may constitute a “means of identification” because it

constitutes one species of “any other information” that, “in conjunction with”

“any name or number,” “may be used . . . to identify a specific individual.”

      In Blixt, the Ninth Circuit expressly made what Ms. Porter labels a “jump.”

Like Ms. Porter, Ms. Blixt was charged with using “a means of identification of

another person” to commit mail fraud (specifically, forging signatures on checks).

See 548 F.3d at 884, 887. When Blixt was decided, “[w]hether the use of


                                         9
another’s signature constitute[d] a ‘means of identification’ for purposes of the

Aggravated Identity Theft statute ha[d] not yet been resolved by [the Ninth

Circuit] or any other circuit.” Id. at 886. The Ninth Circuit “h[e]ld as a matter of

first impression that forging another’s signature constitutes the use of that

person’s name and thus qualifies as a ‘means of identification’ under 18 U.S.C.

§ 1028A.” 3 Id.

      The Ninth Circuit reasoned that the definition

             includes the use of a name, alone or in conjunction with any
             other information, as constituting the use of a means of
             identification so long as the information taken as a whole
             identifies a specific individual. There is nothing in the language
             of the statute that suggests the use of another’s name in the form
             of a signature is somehow excluded from the definition of
             “means of identification.”

Id. at 887. The court went on to reason that “[b]y using the word ‘any’ to qualify

the term ‘name,’ the statute reflects Congress’s intention to construct an

expansive definition.” Id. Thus, if it had found that signatures were categorically

not names and thus not included within the definition, it would have disregarded

the “settled principle of statutory construction that we must give effect, if

possible, to every word of the statute.” Id. (quoting Bowsher v. Merck & Co., 460

U.S. 824, 833 (1983)) (internal quotation marks omitted).



      3
             Here, the district court did not instruct the jury that a signature was
specifically a “name” within the meaning of § 1028A. Nonetheless, the district
court appears to have been influenced by the Ninth Circuit in Blixt, which so held.

                                          10
      According to Blixt, “[c]ategorically carving out a signature from this

definition, although a signature is commonly understood to be the written form of

a person’s name, would impermissibly narrow the definition of ‘name’ in the

statute.” 4 Id. (footnote omitted); see also id. at 887 n.1 (“Black’s Law Dictionary

defines the term ‘signature’ to mean ‘[a] person’s name or mark written by that

person or at that person’s direction.’” (alteration in original) (quoting Black’s

Law Dictionary (8th ed. 2004)). Blixt concluded that the legislative history

“strongly supports a conclusion that . . . forgery of . . . signature[s] constitutes the

use of a ‘means of identification’ because it conforms precisely to the conduct

Congress sought to proscribe—wrongfully obtaining and using [another person’s]

signature for [one’s] own economic gain.” Id. at 888.

      Panels of at least two of our sister circuits have expressly endorsed in

unpublished (i.e., non-precedential) decisions the holding of Blixt. See United

States v. Williams, --- F. App’x ----, 2014 WL 278432, at *1 (6th Cir. Jan. 27,

2014) (“[A]nother’s name in the form of a signature is [included in] the definition

of means of identification.” (alterations in original) (quoting Blixt, 548 F.3d at

887)) (internal quotation marks omitted); United States v. Little, --- F. App’x ----,

2014 WL 155775, at *2 (11th Cir. Jan. 16, 2014) (per curiam) (citing Blixt, and

      4
             Even if no one could decipher a name from a signature, the Ninth
Circuit found that a “signature was meant to be a particularized rendering of [a]
name” and that a “signature, however illegible, was thus nothing more than [a]
name written in a particular way and meant to identify [a person], specifically.”
Blixt, 548 F.3d at 888.

                                          11
commenting that “we have no cause to depart from the plain meaning of the

statute, under which a person’s name on a check qualifies as a means of

identification under § 1028A”); see also United States v. Lewis, 443 F. App’x

493, 496 (11th Cir. 2011) (per curiam) (citing Blixt and noting that “[a]s the

signature of an individual’s name specifically identifies that individual, we

conclude that forging another’s signature constitutes the use of a ‘means of

identification’”), cert. denied, --- U.S. ----, 132 S. Ct. 2742 (2012).

      We also view Blixt favorably, concluding that its reasoning is persuasive.

In reaching that conclusion, we are mindful that Blixt’s reasoning and result

accord with the plain meaning of the term “signature.” See Webster’s Third New

International Dictionary 2116 (2002) (defining “signature” as, among other

things, “the name of a person written with his own hand to signify that the writing

which precedes accords with his wishes or intentions” or “the act of signing one’s

name”). And Blixt’s reasoning and result are also fully congruent with well-worn

principles of statutory construction. In addition to the principle that Blixt

expressly relied on—the so-called “surplusage canon,” Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“The

surplusage canon holds that it is no more the court’s function to revise by

subtraction than by addition.”); see Bryan A. Garner, A Dictionary of Modern

Legal Usage 860 (2d ed. 1995) (“Courts often recite the canon of construction

that prevents them from reading statutory or contractual language in a way that

                                          12
renders part of it surplusage.”); see also William N. Eskridge, Jr., et al.,

Legislation and Statutory Interpretation 275 (2d ed. 2006) (noting “the

presumption that every statutory term adds something to a law’s regulatory

impact”)—it is also notable that Blixt relied on another statutory-construction

principle that we believe is quite apposite here.

      Specifically, Blixt tacitly relied on the so-called “general-terms canon” that

holds that “[g]eneral terms are to be given their general meaning.” Scalia &

Garner, supra, at 101 (boldface omitted). We agree with Blixt that, when

Congress used the general term “any” to modify the term “name,” it meant to give

that term an “expansive” meaning. Blixt, 548 F.3d at 887; see, e.g., Nat’l Credit

Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 727 F.3d 1246, 1267 (10th

Cir. 2013) (“Read naturally, the word ‘any’ has an expansive meaning . . . .”

(quoting Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219 (2008)) (internal

quotation marks omitted)), pet. for cert. filed, 82 U.S.L.W. 3307 (U.S. Nov. 8,

2013) (13-576); United States v. S. Half of Lot 7 & 8, Block 14, Kountze’s 3rd

Addition to the City of Omaha, 910 F.2d 488, 489 (8th Cir. 1990) (en banc)

(“Congress’s use of the word ‘any’ to describe property ‘undercuts a narrow[er]

construction.’” (alteration in original) (quoting United States v. James, 478 U.S.

597, 605 (1986))).

      Accordingly, guided in substantial part by Blixt, we hold that a signature is

a form of “name” for purposes of § 1028(d)(7)’s definition of “means of

                                          13
identification.” Moreover, even though as noted supra a “name” functions as a

“means of identification” in two distinct ways under the statute, we see no

principled reason to accord the term a different meaning and scope in its two

statutory iterations—especially since the term “name” is repeated in the same

independent clause. See Miss. ex rel. Hood v. AU Optronics Corp., --- U.S. ----,

134 S. Ct. 736, 743 (2014) (noting that “the presumption that a given term is used

to mean the same thing throughout a statute is at its most vigorous when a term is

repeated within a given sentence” (quoting Brown v. Gardner, 513 U.S. 115, 118

(1994)) (internal quotation marks omitted)); Nat’l Credit Union Admin. v. First

Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998) (discussing “the established

canon of construction that similar language contained within the same section of a

statute must be accorded a consistent meaning”); Sorenson v. Sec’y of Treasury,

475 U.S. 851, 860 (1986) (noting that “[t]he normal rule of statutory construction

assumes that identical words used in different parts of the same act are intended

to have the same meaning” (internal quotation marks omitted)).

      Both iterations of the term “name” are qualified by the term “any,” which

as noted suggests Congress’s intent that the term be construed broadly. And, in

each instance in which the term is used, its core attribute is the same: it “may be

used . . . to identify a specific individual.” 18 U.S.C. § 1028(d)(7). These

observations support our view that the term “name” should be construed

consistently. Cf. First Nat’l Bank of Durango v. Woods (In re Woods), --- F.3d --

                                          14
--, 2014 WL 630470, at *7 (10th Cir. 2014) (declining to definitively opine—that

is, “to say”—that the statutory phrase “arise out of a farming operation” has

precisely the same meaning in the two places it appears in a statutory sentence,

principally because “the phrase as found in the [principal-residence-debt]

exception has a different—in some respects more narrow—point of focus than the

phrase as found in the [fifty-percent-farm-debt] rule”); Scalia & Garner, supra, at

171 (noting that “the presumption [of consistent usage] makes sense when applied

. . . pragmatically”). Moreover, the analysis of § 1028(d)(7) found in the

published and unpublished opinions of our sister circuits (at the very least tacitly)

accepts the premise that the term “name” has the same meaning in the

introductory clause of § 1028(d)(7) and in subsection (A). See United States v.

Alexander, 725 F.3d 1117, 1120–21 (9th Cir. 2013); Lewis, 443 F. App’x at

495–96. Accordingly, we are comfortable concluding that there is no principled

reason to accord the term “name” a different meaning and scope in its two

iterations in § 1028(d)(7). Thus, with the full text of the definition in mind, we

hold that a signature is a form of a “name”; consequently, it is a “means of

identification” under § 1028(d)(7). In other words, because a “name” is expressly

included in the definition of “means of identification,” so is a signature, because

it is a form of a “name.” Therefore, the district court did not err in instructing the

jury that “[a] person’s signature is a ‘means of identification.’” Aplt. App. at 47.




                                          15
                                         B

      Having concluded that the district court’s challenged instruction concerning

a “means of identification” was not erroneous, we now specifically address and

reject Ms. Porter’s arguments to the contrary.

                                         1

      Ms. Porter asserts that Application Note 9(C)(iii)(II) to § 2B1.1 of the U.S.

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) is the “clearest contradiction

of a signature as being a means of identification.” Aplt. Opening Br. at 13.

Subsection 2B1.1(b)(11)(C)(i) of the Guidelines provides: “If the offense

involved . . . the unauthorized transfer or use of any means of identification

unlawfully to produce or obtain any other means of identification . . . increase by

2 levels.” U.S.S.G. § 2B1.1(b)(11)(C)(i) (2012) (emphasis added). 5 Application

      5
              The Guidelines language and citations that Ms. Porter references
suggest that she makes her arguments with reference to the edition of the
Guidelines in effect in March 2012, when she was sentenced. See U.S.S.G.
§ 1B1.11(a) (2012) (“The court shall use the Guidelines Manual in effect on the
date that the defendant is sentenced.”). In framing its responsive arguments, the
government follows Ms. Porter’s lead, apparently relying on the 2012 edition of
the Guidelines. However, citing ex post facto concerns, in its Presentence Report
(“PSR”), the U.S. Probation Office actually computed Ms. Porter’s sentence using
the 2010 version of the Guidelines. See Aplee. Supp. App. at 19 (PSR, dated
Sept. 23, 2011) (“In order to avoid violating the ex post facto clause of the United
States Constitution, . . . . in accordance with U.S.S.G. § 1B1.11, the 2010 edition
of the guideline manual was applied in determining the computations . . . .”).
Guidelines § 2B1.1 was substantially revised in the 2011 and 2012 editions,
including a re-numbering of certain subsections. See U.S.S.G. App. C, Vol. III,
amend. 749 (effective Nov. 1, 2011); U.S.S.G. Supp. App. C, amend. 761
                                                                       (continued...)

                                         16
Note 9 discusses how this subsection should be applied. Generally, it provides

that the subsection “applies in a case in which a means of identification of an

individual other than the defendant . . . is used without that individual’s

authorization unlawfully to produce or obtain another means of identification.”

U.S.S.G. § 2B1.1 cmt. n.9(C)(i). In other words, the subsection applies—and thus

an upward adjustment is appropriate—when the defendant uses one “means of

identification” of someone else without authorization to unlawfully produce or

obtain another “means of identification.”

      The note provides examples of when the subsection applies. For instance,

it applies when




      5
        (...continued)
(effective Nov. 1, 2012). Nevertheless, the rationale for the Probation Office’s
selection of the 2010 edition rather than the 2008 edition is not patent; ordinarily,
when ex post facto concerns arise, the Guidelines edition that was in effect when
the offense conduct occurred governs, and Ms. Porter’s offense conduct
terminated in 2008, not 2010. See U.S.S.G. § 1B1.11(b)(1) (2012) (“If the court
determines that use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto clause of the United States
Constitution, the court shall use the Guidelines Manual in effect on the date that
the offense of conviction was committed.”). However, we find no evidence in the
record that the parties objected to Probation’s choice of the 2010 edition.
Ultimately, we need not delve further into this imbroglio. Focusing on the task at
hand, we note that the language of the Guidelines implicated by Ms. Porter’s
argument here does not appear to have changed between the 2010 edition
(actually applied) and the (otherwise applicable) 2012 edition. Therefore, for the
limited purpose of addressing Ms. Porter’s argument here, we follow the parties’
apparent approach. Accordingly, all further references to the Guidelines are to
the 2012 edition.

                                          17
            [a] defendant obtains an individual’s name and social security
            number from a source (e.g., from a piece of mail taken from
            the individual’s mailbox) and obtains a bank loan in that
            individual’s name. In this example, the account number of the
            bank loan is the other means of identification that has been
            obtained unlawfully.

U.S.S.G. § 2B1.1 cmt. n.9(C)(ii)(I). 6

      More relevant to Ms. Porter’s argument, the note also provides examples of

when § 2B1.1(b)(11)(C)(i) does not apply. Of considerable importance, in Ms.

Porter’s view, the note provides that the subsection does not apply where “[a]

defendant forges another individual’s signature to cash a stolen check. Forging

another individual’s signature is not producing another means of identification.”

U.S.S.G. § 2B1.1 cmt. n.9(C)(iii)(II) (emphasis added). Ms. Porter contends that,

while the Guidelines are advisory and not controlling legal authority here, “they

are certainly illustrative” of Congress’s intent. Aplt. Opening Br. at 13. In her




      6
             According to the Guidelines, the subsection also applies in the
following situation:

            A defendant obtains an individual’s name and address from a
            source (e.g., from a driver’s license in a stolen wallet) and
            applies for, obtains, and subsequently uses a credit card in that
            individual’s name. In this example, the credit card is the other
            means of identification that has been obtained unlawfully.


U.S.S.G. § 2B1.1 cmt. n.9(C)(ii)(II).



                                         18
view, this forged-signature example suggests that Congress intended a signature

not be considered a “means of identification.” We are not persuaded.

      Putting aside for the moment our reasonable concern regarding the

relevancy of the forged-signature example of Application Note 9(C)(iii)(II) to

these facts—given that the example relates to a stolen check, and these facts

involve no such thing 7—we conclude that Ms. Porter’s reliance on the Guidelines

note is misguided. Far from providing Ms. Porter succor, it bolsters the

conclusion that we reach here.

      Subsection (b)(11)(C)(i) is focused on the unlawful use of one “means of

identification” to produce or obtain another. And, naturally, this is also the

concern of Application Note 9(C), which serves to explain the subsection’s scope.

See U.S.S.G. § 2B1.1 cmt. n.9(C)(i). Implicit in this focus on the unlawful use of

a “means of identification”—say, a hypothetical means A—to produce or obtain

another “means of identification”—a hypothetical means B—must be the view

that both A and B are in fact “means of identification.” This view applies as well

to the forged-signature example. As the government puts it: “Were the forged



      7
             Recall that the document upon which the jury found Ms. Porter
forged a signature was not a check, as contemplated by the Application Note, but
rather was an LM report sent to the DOL. See Aplt. App. at 832–34 (reflecting
Ms. Porter’s testimony that she signed all of the LM reports for the AMC Council
presented by the government at trial); Aplt. Ex. 79 (AMC’s LM Report ostensibly
containing Ms. Moilanen’s signature); Aplt. App. at 525–27 (testimony of Ms.
Moilanen denying that she received or signed the report).

                                         19
signature not a ‘means of identification,’ there would be no potential for a

defendant to obtain ‘another means of identification’ . . . . Without this basic

premise, the application note would make little sense.” Aplee. Br. at 19

(emphasis added).

      What causes subsection (b)(11)(C)(i) to be inapplicable in the situation of

the unlawful use of a forged signature to cash a stolen check is not that the forged

signature is not a “means of identification”; rather, it is that the forged signature

produces or obtains cash, not another “means of identification.” 8 See United

States v. Shanks, 452 F. App’x 922, 926 (11th Cir.) (per curiam) (“Although the

commentary for U.S.S.G. § 2B1.1 does exclude forging a signature on a check

from the meaning of ‘producing another means of identification,’ it does not

similarly disqualify forging a signature from constituting a means of

identification. As there has been no allegation that [Defendant] produced another


      8
               This point is reinforced by examining the other instance when
Application Note 9(C) says the subsection does not apply: “A defendant uses a
credit card from a stolen wallet only to make a purchase. In such a case, the
defendant has not used the stolen credit card to obtain another means of
identification.” See U.S.S.G. § 2B1.1 cmt. n.9(C)(iii)(I). It is beyond
peradventure that the “credit card” in this example is “a means of identification,”
see, e.g., id. cmt. n.9(C)(ii)(II) (“In this example, the credit card is the other
means of identification that has been obtained unlawfully.”); no concern about
this fact causes the subsection not to apply. The reason that the subsection does
not apply is that the credit card is being unlawfully used “only to make a
purchase,” not to produce or obtain another “means of identification.” The
Guidelines drafters applied the same reasoning to exclude a forged signature on a
stolen check that was used only to produce or obtain cash, not another means of
identification.

                                          20
means of identification by forging [the victim’s] signature, this commentary has

no bearing on this case.” (citation omitted)), cert. denied, --- U.S. ----, 132 S. Ct.

2696 (2012). Thus, we conclude that Ms. Porter’s reliance on Application Note

9(C)(iii)(II), to establish that a signature is not a “means of identification” for

purposes of § 1028(d)(7) is misplaced; if it is relevant at all, that note actually

reinforces the converse view that we endorse here (i.e., a signature is a “means of

identification”).

                                           2

      Ms. Porter contends that, if Congress had meant to include signature as a

“means of identification,” then it would have expressly used that word in

§ 1028(d)(7). She states that “the statute is not short on elements that can be

considered to be ‘a means of identification.’” Aplt. Opening Br. at 11. This

argument is unavailing. 9 There is no indication in the statute that Congress


      9
              Although her argument is far from pellucid, Ms. Porter attempts to
bolster her conclusion that the omission of the term “signature” from the
definition of “means of identification” reflects a deliberate congressional choice,
by referencing snippets of the legislative history of 18 U.S.C. §§ 1028 and
1028A. Stripped to its essentials, Ms. Porter’s argument appears to be that, given
the seriousness of Congress’s concern with the problem of identity
theft—purportedly reflected in the cited legislative history—and also Congress’s
directives to the Sentencing Commission to respond to its concern, one would
expect to find the term “signature” included in a statutory or Guidelines definition
of “means of identification,” if that were actually Congress’s intent; but it is not
present in either context. Ms. Porter’s argument, however, is built on two
premises: first, that a signature is not already included in the statutory definition
of “means of identification” of § 1028(d)(7), even though that provision explicitly
                                                                         (continued...)

                                           21
intended to exclude signature from the definition of a “means of identification.”

Quite to the contrary, under the view that we adopt here, Congress contemplated

that a signature was included within the definition of “means of identification” by

virtue of the statute’s express inclusion in that definition of the term “name.” As

the Ninth Circuit reasoned in Blixt, “[b]y using the word ‘any’ to qualify the term

‘name,’ [§ 1028(d)(7)] reflects Congress’s intention to construct an expansive

definition.” 548 F.3d at 887.

      At bottom, we recognize that, by endeavoring to have us infer that

Congress meant to exclude a signature from the definition of “means of

identification” because it did not expressly use the term “signature,” in effect,

Ms. Porter seeks to have us apply a version of the “negative-implication canon”

of statutory construction. See Scalia & Garner, supra, at 107. The Latin name

for this canon is expressio unius est exclusio alterius. It provides that “to express

or include one thing implies the exclusion of the other, or of the alternative.”

Black’s Law Dictionary 661 (9th ed. 2009); see William D. Popkin, A Dictionary

of Statutory Interpretation 88 (2007) (“The ‘expressio unius’ canon means that

the expression of one thing excludes any inference—based on statutory text,



      9
        (...continued)
includes the term “name”; and second, that the Guidelines do not in fact
contemplate that a signature is a “means of identification.” Both premises are
false—as we establish, respectively, in Part II.A, supra, and this subpart, and in
Part II.B.1, supra.

                                         22
structure, or purpose—that other similar items are included in the statute.”).

However, “[v]irtually all the authorities who discuss the negative-implication

canon emphasize that it must be applied with great caution, since its application

depends so much on context. . . . Context establishes the conditions for applying

the canon . . . .” Scalia & Garner, supra, at 107. And “[c]ommon sense often

suggests” when the context calls for its application. Id.

      Here, “common sense” clearly indicates the inappropriateness of applying

the negative-inference canon. This is because, far from expressing through the

statute’s text and structure, that the definition of “means of identification” is an

exhaustive, or a comprehensive, expression of intended means—which ordinarily

would inferentially exclude other means—Congress, by its use of the term

“including,” signaled precisely the obverse intent. See, e.g., Fed. Land Bank of

St. Paul v. Bismark Lumber Co., 314 U.S. 95, 100 (1941) (noting that “the term

‘including’ is not one of all-embracing definition, but connotes simply an

illustrative application of the general principle”); Scalia & Garner, supra, at 132

(noting that “the word include does not ordinarily introduce an exhaustive list”).

More specifically, as commentators have stated: “When a definitional section says

that a word ‘includes’ certain things, that is usually taken to mean that it may

include other things as well.” Scalia & Garner, supra, at 226.




                                          23
      And courts have held as much in construing § 1028(d)(7). See Alexander,

725 F.3d at 1120 (“[S]ubsections (A) through (D) [of § 1028(d)(7)] are preceded

by the word ‘including,’ which suggests that the list is illustrative rather than

exhaustive.”); see also United States v. Foster, 740 F.3d 1202, 1207 (8th Cir.

2014) (“The section [i.e., § 1028(d)(7)] then lists several examples of the type of

information that may help to specify an individual, including, but not limited to, a

social security number, date of birth, driver’s license number, or taxpayer

identification number.” (emphases added)). The breadth of the definition of

“means of identification” is further underscored by the use of the term “any”

before the term “including”; the term “any,” as we have seen, “reflects Congress’s

intention to construct an expansive definition.” Blixt, 548 F.3d at 887. In sum,

for the foregoing reasons, we reject Ms. Porter’s contention that, if Congress had

meant to include signature as a “means of identification,” then it would have

expressly used that word in § 1028(d)(7).

                                           3

      Lastly, Ms. Porter urges us to follow the district court’s decision in United

States v. Griffiths, No. 4:10-CR-3-SPM/WCS-1, 2010 WL 2652341 (N.D.

Fla. July 1, 2010). See Aplt. Opening Br. at 16. In that case, the court granted

Mr. Griffiths’s motion for judgment of acquittal and acquitted Mr. Griffiths of

aggravated identity theft. See 2010 WL 2652341, at *1. “The issue [was]



                                          24
whether the passing of checks stolen from the mails constitutes aggravated

identity theft under 18 U.S.C. § 1028A.” Id. Specifically, Mr. Griffiths, an

employee of the U.S. Postal Service, stole checks from the mail prior to their

delivery to the intended recipients; then, he deposited the checks, forged with the

signatures of the individuals named on the checks. Id. In one count, he was

charged with “identity theft for passing the check, and thereby using the ‘means

of identification’ presented on the check.” Id. The court held that “where the

name, account number, and routing number provided on the check are not used

separately and independently from the transaction by paper instrument, that is, the

passing of the check itself—there is no identity theft under [§ 1028A].” Id. at *4.

      Proceeding to our analysis, at the outset, we state the obvious: Griffiths is

not binding on us and amounts to no more than one voice from a Florida district

court in the Eleventh Circuit. Furthermore, even when we pause to assess its

merits, we find Ms. Porter’s reliance on Griffiths to be misguided. The principal

issue there was whether passing a check constituted use of an “access device”

under § 1028(d)(7)(D). See id. at *1–2. Section 1028(d)(7)(D) expressly

includes the term “access device”; that term is defined in 18 U.S.C. § 1029(e)(1),

which specifically excludes, by way of a parenthetical, “transfer[s] originated

solely by paper instrument.” 10 18 U.S.C. § 1029(e)(1). This was the language


      10
             In full, the subsection provides:
                                                                        (continued...)

                                         25
that the Griffiths court relied on in concluding that “the conduct of falsifying a

signature on a stolen check and passing said stolen check does not constitute the

use of an access device.” 2010 WL 2652341, at *2.

      Ms. Porter hangs her hat on the statutory analysis in Griffiths. She suggests

that we follow the Griffiths court’s view that “under basic statutory interpretation,

a general term should not override a specific term.” Aplt. Opening Br. at 16.

Specifically, in Griffiths, the government argued that, while a check may not

constitute an “access device” for purposes of subsection (D) of § 1028(d)(7), it

may still satisfy the broader definition of “means of identification.” See 2010 WL

2652341, at *3 (“[T]he Government argues that because the term ‘means of

identification’ is described so broadly under 18 U.S.C. § 1028(d)(7), the four

included categories following the definition are illustrative examples which are

not intended to be exhaustive . . . .”). The Griffiths court was not persuaded.


      10
           (...continued)

                the term “access device” means any card, plate, code, account
                number, electronic serial number, mobile identification number,
                personal identification number, or other telecommunications
                service, equipment, or instrument identifier, or other means of
                account access that can be used, alone or in conjunction with
                another access device, to obtain money, goods, services, or any
                other thing of value, or that can be used to initiate a transfer of
                funds (other than a transfer originated solely by paper
                instrument)[.]


18 U.S.C. § 1029(e)(1) (emphasis added).

                                            26
Observing that “the term ‘access device’ under subsection D [of § 1028(d)(7)]

specifically excludes solely paper transactions,” the court reasoned that “the more

general phrase, ‘means of identification,’ should not be interpreted as

encompassing those transactions specifically excluded by the subsequent, specific

provision.” Id.

      However, we are hard-pressed to square Griffiths’s rationale with the

broad, non-exhaustive language of § 1028(d)(7), which we examined at length

supra. And we are not alone in reaching this conclusion. The operating premise

of Griffiths—that the terms of subsection (D) should be read as restricting the

scope of the expansive language that constitutes the remainder of

§ 1028(d)(7)—has been expressly repudiated in an unpublished decision by a

panel of the Eleventh Circuit, the circuit in which the Griffiths court sits.

Specifically, Griffiths’s premise was forcefully rejected by the Eleventh Circuit in

Lewis:

             [Defendant] contends that, because the statutory definition of
             “access device” excludes “transfer[s] originated solely by paper
             instrument,” the conduct of falsifying a signature on a stolen
             check and cashing the check does not constitute the knowing
             transfer, possession, or use, without lawful authority, of “a means
             of identification of another person.”


                   The flaw in [Defendant’s] argument is that an “access
             device” is only one of several items that Congress listed, in the
             disjunctive, as a “means of identification.” 18 U.S.C.
             § 1028(d)(7). Thus, simply failing to satisfy the definition of
             “access device” does not end the analysis with respect to whether

                                              27
             a signature on a stolen check is a “means of identification.” Any
             name that may be used to identify a specific individual, including
             the individual’s “name,” will satisfy the definition of “means of
             identification,” even if it does not satisfy the definition of
             “access device.” Id. As the signature of an individual’s name
             specifically identifies that individual, we conclude that forging
             another’s signature constitutes the use of a “means of
             identification.”


443 F. App’x at 495–96 (second alteration in original) (footnote omitted).

      Another pronouncement (in an unpublished decision) from an Eleventh

Circuit panel has also effectively eroded the foundation of Griffiths’s premise, by

stressing the broad, non-exhaustive nature of the “means of identification”

definition of § 1028(d)(7). See Little, 2014 WL 155775, at *1–2 (rejecting

Defendant’s argument that “because every check necessarily includes a name,

applying the check exclusion [of subsection D] only to access devices renders the

exclusion meaningless” and finding to the contrary “no cause to depart from the

plain meaning of the statute, under which a person’s name on a check qualifies as

a means of identification under § 1028A”).

      Furthermore, in a precedential decision, the Ninth Circuit rejected a similar

argument based on subsection D. See Alexander, 725 F.3d at 1119–20 (rejecting

as a “grossly atextual reading of the statute” Defendant’s argument that “by

incorporating the access-device definition from § 1029(e)(1) into

§ 1028(d)(7)(D), Congress excluded check forgery from the crime of aggravated

identity theft” and noting in support that “subsections (A) through (D) are

                                         28
preceded by the word ‘including,’ which suggests that the list is illustrative rather

than exhaustive . . . . Thus, whether [Defendant’s] counterfeit check was an

‘access device’ does not answer the question whether the names and banking

numbers on his counterfeit check were a ‘means of identification.’”).

       Like Griffiths itself, the foregoing decisions of our sister circuits

(unpublished and published) are not binding on us. However, they clearly and

cogently reveal fatal flaws in Griffiths’s analysis. To be sure, the Griffiths court

purported to rest its decision on the settled statutory-construction canon relating

to the specific overriding the general. See, e.g., Scalia & Garner, supra, at 183

(“If there is a conflict between a general provision and a specific provision, the

specific provision prevails . . . .” (boldface omitted)). However, we harbor

considerable doubt about whether the court properly applied that canon.

      “[T]he general/specific canon does not mean that the existence of a

contradictory specific provision voids the general provision. Only its application

to cases covered by the specific provision is suspended; it continues to govern all

other cases.” Scalia & Garner, supra, at 184. In other words, the canon works to

ensure that “[w]here there is no clear intention otherwise, a specific statute will

not be controlled or nullified by a general one.” Morton v. Mancari, 417 U.S.

535, 550–51 (1974); see Radzanower v. Touche Ross & Co., 426 U.S. 148, 153

(1976) (“It is a basic principle of statutory construction that a statute dealing with



                                          29
a narrow, precise, and specific subject is not submerged by a later enacted statute

covering a more generalized spectrum.”); see also Eskridge et al., supra, at

283–84 (“This rule of construction [i.e., the general-specific canon] is justified on

republican grounds; the focused language suggests that Congress probably

deliberated on the issue and developed a specific intent.”).

      Therefore, if the general-specific canon were applicable to subsection D at

all, it ordinarily would operate to ensure that the broad definitional language of

the remainder of § 1028(d)(7) did not negate or impair the effect of subsection D;

however, that broad language, including subsections (A) through (C), would

“govern all other cases.” Scalia & Garner, supra, at 184. In purporting to apply

the general-specific canon, Griffiths seemingly turned the canon on its head.

Rather than applying the general-specific canon to preserve the operation of the

specific provision (i.e., subsection D), it applied the canon to restrict the broad

language of the remainder of § 1028(d)(7)—specifically, to wholly exclude from

the definition of “means of identification” a forged signature that had been used

to cash a check. The court equated that check-cashing transaction with “a transfer

originated solely by paper instrument,” § 1029(e)(1). In other words, Griffiths

effectively applied the “contradictory specific provision [to] void[] the general

provision,” Scalia & Garner, supra, at 184, as it relates to forged signatures on

checks (and logically other documents as well). We are hard-pressed to conclude

that such analysis constitutes a proper application of the general-specific canon.

                                          30
Put another way, we believe that Griffiths’s statutory analysis is dubious at best.

      In sum, based on the foregoing, the district court decision in Griffiths is

wholly unpersuasive. Ms. Porter’s reliance on Griffiths is misplaced.

                                         III

      We turn now to Ms. Porter’s challenges to the sufficiency of the evidence

supporting her convictions for mail fraud and wire fraud. As explicated below,

we conclude that the evidence was sufficient as to all of the counts at issue.

                                          A

      We review challenges to the sufficiency of the evidence and denials of

motions for judgment of acquittal de novo. United States v. Cooper, 654 F.3d

1104, 1115 (10th Cir. 2011). In doing so, we must examine “whether[,] viewing

the evidence in the light most favorable to the Government, any rational trier of

fact could have found the defendant guilty of the crime beyond a reasonable

doubt.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004)

(citation omitted) (internal quotation marks omitted). “[W]e do not weigh

conflicting evidence or consider witness credibility, and the fact that prosecution

and defense witnesses presented conflicting or differing accounts at trial does not

necessarily render the evidence insufficient.” Cooper, 654 F.3d at 1115 (citations

omitted).

                                          B


                                         31
      Ms. Porter was charged with mail fraud in Count 106 of the indictment.

“The elements of federal mail fraud as defined in 18 U.S.C. § 1341 are (1) a

scheme or artifice to defraud or obtain property by means of false or fraudulent

pretenses, representations, or promises, (2) an intent to defraud, and (3) use of the

mails to execute the scheme.” Id. at 1116 (quoting United States v. Welch, 327

F.3d 1081, 1104 (10th Cir. 2003)) (internal quotation marks omitted). Ms. Porter

only takes issue with the third prong of mail fraud: specifically, she claims that

the government failed to prove, directly or otherwise, that she used the United

States mails to execute her scheme. The underlying document for the mail fraud

charge was the Form LM-3 Labor Organization Annual Report for 2006 (the

“2006 LM Report”). Aplt. Ex. 79 (2006 LM Report, signed July 24, 2007). As

charged in the indictment, the government’s theory was that Ms. Porter

“knowingly caused to be delivered by mail the AMC LM-3 form for fiscal year

2006 to the [DOL, OLMS], 1999 Broadway, Suite 2435, Denver CO 80202.”

Aplt. App. at 22; see id. at 19 (noting that Ms. Porter “submitted the fiscal year

2006 AMC LM-3 form to the [DOL] office located in Denver, Colorado using the

U.S. Postal Service”). There is no dispute that the 2006 LM report was actually

received in Denver by the DOL’s OLMS. However, Ms. Porter argues that

“[m]ost of th[e] times” that the 2006 LM Report was referenced at trial related to

“the purpose and use of a[n] LM report.” Aplt. Opening Br. at 19. In other

words, she contends that the primary focus of the testimony regarding the LM

                                         32
report at trial related to its purpose and use. She asserts that “[n]one [of the

references] provide evidence of how the report was delivered to Denver.” Id.

Further, she argues that the 2006 LM Report itself does not indicate “how or

when” it was delivered. Id.

       We have held, when considering the sufficiency of the evidence for mail

fraud, that “[p]roof of mailing by showing an established business practice to use

the mails is sufficient circumstantial evidence to require submission of the

mailing issue to a jury.” United States v. Dunning, 929 F.2d 579, 580 (10th Cir.

1991). Here, in our view, it is determinative that Ms. Porter’s own testimony

indicates that the routine practice was to submit the LM reports by mail. See

Aplt. App. at 828 (“Q. What would be the normal process whenever you prepared

the reports for getting both signatures on them? A. The normal procedure would

be . . . . I would fill it out, sign it and give it to her [Genevieve Trujillo, then the

AMC Council’s treasurer] to sign it and then mail it off.” (emphasis added)); id.

at 829 (“Q. So your testimony is, then, that you prepared the report [i.e., the LM

report regarding fiscal year 2005], you gave it to Ms. Trujillo? A. Yes. And all

she had to do was sign it and mail it. That was it.” (emphasis added)).

       To be sure, exercising commendable candor, the government acknowledges

that the evidence revealed “a conflict as to whether [Ms. Porter] mailed the

reports directly to the [DOL] or to another officer for signature.” Aplee. Br.



                                            33
at 25. However, any such conflict is legally immaterial. The government had no

obligation to prove that Ms. Porter directly mailed the 2006 LM Report to

Denver. As the indictment charged, it was enough that Ms. Porter “knowingly

caused” the 2006 Report “to be delivered by mail.” Aplt. App. at 22; see, e.g.,

Pereira v. United States, 347 U.S. 1, 8 (1954) (“[I]t is not necessary to show that

petitioners actually mailed or transported anything themselves; it is sufficient if

they caused it to be done.”); United States v. Weiss, 630 F.3d 1263, 1269 (10th

Cir. 2010) (“[T]here is no requirement that the perpetrator personally effect the

mailing.”). And a rational findfinder could conclude based on Ms. Porter’s own

testimony that the last act in the routine process of submitting an LM report was

to “mail it off” and that Ms. Porter was well aware of this process. Consequently,

as to Count 106, the jury could have rationally found that—whether she directly

mailed it or not—Ms. Porter knowingly caused the 2006 LM Report to be

delivered by mail to the DOL in Denver. See, e.g., United States v. Pisciotta, 469

F.2d 329, 331 (10th Cir. 1972) (“A defendant causes the mails to be used when he

does an act with knowledge that the use of the mails will follow in the ordinary

course of business, or where such use can be reasonably foreseen, even though

not actually intended.”); see also United States v. Gamble, 737 F.2d 853, 855

(10th Cir. 1984) (collecting cases). Accordingly, we conclude that Ms. Porter’s

challenge to her mail fraud conviction is without merit.




                                          34
                                          C

      “To convict a defendant of wire fraud under 18 U.S.C. § 1343, the

government must show (1) a scheme or artifice to defraud or obtain property by

means of false or fraudulent pretenses, representations, or promises, (2) an intent

to defraud, and (3) . . . use of interstate wire . . . communications to execute the

scheme.” 11 United States v. Caldwell, 560 F.3d 1202, 1207 (10th Cir. 2009)

(omissions in original) (quoting United States v. Gallant, 537 F.3d 1202, 1228

(10th Cir. 2008)) (internal quotation marks omitted).

      Ms. Porter challenges the sufficiency of the wire fraud evidence for Counts

1–17, 20–24, 26–28, 30, 32–39, 41, 43–45, 48–70, 72–74, 76–78, 80–82, 84–85,

87, 90–91, 93–94, 96, 99–100, and 102–105. We review Ms. Porter’s challenges

to Counts 3–17, 20, 21, 26–28, 54, and 55 de novo because she raised objections

to these counts before the district court. Doing so, we conclude that her

challenges are without merit and must fail.




      11
             The wire fraud statute, 18 U.S.C. § 1343, provides in relevant part:

             Whoever, having devised or intending to devise any scheme or
             artifice to defraud, or for obtaining money or property by means
             of false or fraudulent pretenses, representations, or promises,
             transmits or causes to be transmitted by means of wire . . .
             communication in interstate . . . commerce, any writings . . . for
             the purpose of executing such scheme or artifice, shall be fined
             under this title or imprisoned not more than 20 years, or both.

                                          35
       On the other hand, Ms. Porter failed to preserve her objections to the

remaining counts. Ordinarily, Ms. Porter “could not prevail unless [s]he could

successfully run the gauntlet created by our rigorous plain-error standard of

review.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012); see

United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (discussing the

elements of the plain-error standard). 12 However, because even under a de novo

standard of review—one that is more favorable to Ms. Porter—her challenges to

these wire fraud counts clearly fail, we accept the government’s tacit invitation to

forego a separate plain-error analysis. See Aplee. Br. at 24 (“In her opening brief

. . . [Ms. Porter] attempts to challenge the sufficiency of the evidence as to counts

1 through 106. Nonetheless, even under a de novo standard of review, including

those counts that she did not specifically object to, Porter’s insufficiency claim

fails in its entirety.”).

       Ms. Porter claims that the evidence was insufficient to sustain a conviction

for the challenged wire fraud counts because there was generally no evidence that

demonstrated the unauthorized nature of the transactions covered by those counts.

Ms. Porter raises specific arguments only with respect to certain counts; we


       12
              Specifically, to obtain relief under plain-error review, Ms. Porter
would need to show “(1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Flonnory, 630 F.3d 1280, 1288 (10th
Cir. 2011) (quoting United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th
Cir. 2009)) (internal quotation marks omitted).

                                          36
discuss those counts below. But, with respect to the balance of the counts, by

failing to offer us specific arguments or citations to legal authority or the record,

Ms. Porter has waived our review of her sufficiency challenges. See, e.g., United

States v. Bader, 678 F.3d 858, 894 (10th Cir.) (holding that Defendant’s

“remaining two claims” were “waived on account of his utter failure to explain or

in any way substantiate his allegations, including with citation to legal

authority”), cert. denied, --- U.S. ----, 133 S. Ct. 355 (2012); Cooper, 654 F.3d at

1128 (holding that “[a]s [Defendant] provides no other argument or authority in

support of this claim, he has insufficiently raised it on appeal”).

      As for counts she challenges, Ms. Porter attacks the sufficiency of the

evidence on Counts 3–17, 20–21, 26–28, and 54–55. See Aplt. Opening Br.

at 20–21. She argues that “[t]he only evidence entered on these counts [was]

bank records in exhibit 148”—which is a summary of the AMC Council’s bank

account statements from April 2001 through December 2008—and that the case

agent, Ms. Abendroth, did not mention these items until asked about them on

cross examination. Id. at 20.

      Contrary to Ms. Porter’s assertions, however, Ms. Abendroth testified

regarding Exhibit 148 on direct examination. After moving to admit Exhibit 148,

the government’s counsel briefly deviated to a different line of questioning, as the

records were gathered. See Aplt. App. at 774 (“The Court: 148 will be admitted.



                                          37
. . . Q. Ma’am, I’m going to move to a different topic briefly while we gather

those records.”). Government’s counsel eventually returned to Exhibit 148. See

id. at 781. At that point, Ms. Abendroth testified specifically regarding a

February 15, 2008 purchase made by Ms. Porter at Touch Discount Day Spa, id.

at 782, a March 22, 2007 purchase made by Ms. Porter at Northeast Family

Dental, id. at 783–84, and a Lowe’s purchase made on an unspecified date, id.

at 784. With respect to each of these purchases, Ms. Abendroth was able to

connect receipts bearing Ms. Porter’s signature to the bank statements contained

in Exhibit 148. Id. at 782–84. Ms. Abendroth also testified to a purchase made at

“MSCN,” or Musician’s Friend, for $816.09. Id. at 785.

      Ms. Abendroth confirmed that “there [was] a correlation between those

records found on Ms. Porter’s computers and the charges in the bank

statements[.]” Id. at 785–86. She also confirmed that this was “the kind of

analysis [she] did to make sure that [she was] bringing charges against the right

person”—she “tried to match up those purchases found in the bank statements

[contained in Exhibit 148] to personal records associated with [Ms. Porter],” and

she “contacted the various vendors to obtain information about the charges that

appear on the bank statements.” Id. at 786; see also id. at 773 (reflecting the

testimony of Ms. Abendroth to the effect that she “put a box around the charges

[listed in Exhibit 148] that are included in the indictment”).



                                          38
      Ms. Abendroth did not testify specifically as to each purchase forming each

count of wire fraud against Ms. Porter; however, her testimony spoke generally to

the unauthorized nature—that is, illegality—of the purchases reflected in all of

the counts. In that regard, Ms. Abendroth confirmed that she “looked at every

single one of those purchases to determine that they were unauthorized.” Id.

at 770. Viewing the evidence in the light most favorable to the verdicts, we

conclude that Ms. Abendroth’s testimony was sufficient for a rational factfinder

to determine that the purchases at issue in the counts were unauthorized.

      Ms. Porter lays down focused fire on two particular counts, but her

contentions do not alter our conclusion. Specifically, she challenges the

sufficiency of the evidence for Count 60, involving a charge for DBC Blick Art

Material, and Count 72, involving a charge for GAF Enterprises. See Aplt.

Opening Br. at 21–22. She speculates that DBC Blick Art Material “could be

anything under the sun,” that there was no evidence presented as to what GAF

Enterprises may be, and that the GAF Enterprises charge “could easily have been

a charge from a national convention for services connected with a hotel.” Id.

      However, Ms. Abendroth’s testimony reasonably suggests that the

government conservatively characterized ambiguous transactions as “authorized”

rather than “unauthorized.” When asked why her analysis differed from that of

William Dameron, the IAM’s auditor, Ms. Abendroth explained that “there were



                                         39
certain things that we did not include as unauthorized that he included in his chart

as unauthorized.” Aplt. App. at 765. “[F]or example, funds paid to the United

States Postal Service, we weren’t able to establish through our investigation that

those were not used for legitimate union business, so we included those in the

authorized section.” Id. And, as noted, Ms. Abendroth specifically testified that

she examined each purchase to determine whether it was unauthorized. Id.

at 770. A rational factfinder was entitled to take note of Ms. Abendroth’s

conservative approach to identifying unauthorized charges and credit her

testimony that all of the ones included in the indictment—including those

reflected in Counts 60 and 72—were unauthorized. It would be improper for us

to second-guess such a credibility determination, see, e.g., Cooper, 654 F.3d

at 1115, and Ms. Porter’s conjectural contentions do not even tempt us to do so.

      Even if Ms. Abendroth’s testimony were not sufficient to seal Ms. Porter’s

fate—that is, to support guilty verdicts on the challenged wire fraud counts—we

note that there was ample additional evidence, including the testimony of other

witnesses, that would have reinforced Ms. Abendroth’s testimony and permitted a

rational factfinder to adjudge Ms. Porter guilty of those counts. The evidence was

clear that the only permissible means for disbursing funds from the AMC Council

and Local 2049 was by check, with two authorizing signatures. In particular, as

of January 2, 2005, the IAM instituted a policy forbidding the use of debit and

credit cards by members. Yet, the jury was shown the AMC Council’s account

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summaries and Wells Fargo bank statements reflecting purchases using an ATM

debit card that had been issued in Ms. Porter’s name in 2004. Furthermore, the

evidence revealed to the jury that Ms. Porter sent fraudulent bank statements to

NFFE officers through 2008; it is beyond peradventure that such acts of

concealment point in the direction of guilt. See, e.g., United States v. Davis, 437

F.3d 989, 996 (10th Cir. 2006) (“[F]alse exculpatory statements . . . ‘are

admissible to prove circumstantially consciousness of guilt or unlawful intent.’”

(quoting United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982))); United

States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003) (noting that fraudulent

intent “may be inferred from evidence that the defendant attempted to conceal

activity” (quoting United States v. Prows, 118 F.3d 686, 692 (10th Cir. 1997))

(internal quotation marks omitted)); accord United States v. Sasso, 695 F.3d 25,

29 (1st Cir. 2012) (“[A]n attempt to cover up the commission of a crime implies

consciousness of guilt.”); United States v. Elashyi, 554 F.3d 480, 499 (5th Cir.

2008) (“[G]uilty knowledge can be inferred from false statements and attempted

coverups.”); United States v. Deutsch, 451 F.2d 98, 118 (2d Cir. 1971) (noting

that Defendant’s “insistence on the use of nominee names evinced a desire to

conceal the transaction, from which the jury could infer consciousness of guilt”).




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      In sum, we conclude, when viewing the totality of the evidence in the light

most favorable to the verdicts, that a rational trier of fact could have found Ms.

Porter guilty of the challenged wire fraud counts beyond a reasonable doubt.

                                         IV

      For the foregoing reasons, we AFFIRM Ms. Porter’s convictions and

uphold the district court’s resulting judgment.




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