           Case: 14-14915   Date Filed: 02/09/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 14-14915
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:14-cr-00016-MHT-SRW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


NINA MCKINNIE MACENA,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (February 9, 2016)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      After a jury trial, Nina M. Macena appeals her convictions for wire fraud, in

violation of 18 U.S.C. § 1343, aggravated identity theft, in violation of 18 U.S.C.

§§ 1028A and 2, and conspiring to file false claims, in violation of 18 U.S.C.

§ 286. Defendant Macena’s convictions arise out of a tax fraud scheme using the

stolen personal information of inmates at the Dothan City Jail. According to the

trial evidence, Defendant Macena acted as a go-between in the scheme. In this

role, Defendant Macena obtained Dothan City Jail docket sheets from Roderick

Neal, a bail bondsman who stole them from his employer. The docket sheets

contained personal information, such as dates of birth and social security numbers.

Defendant Macena then gave the docket sheets to Ivory Bolen, who used the

personal information on them to prepare and electronically file fraudulent tax

returns.

      On appeal, Macena argues that the district court erred by denying Macena’s

motion for a judgment of acquittal. Defendant Macena contends that the

government failed to prove that she knew what Bolen was doing with the docket

sheets or that Macena herself was involved in filing the fraudulent tax returns.

Defendant Macena contends that the trial testimony of Bolen and Neal about

Macena’s knowledge of the scheme was not credible. After review, we affirm.




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                 I. RULE 29(a) JUDGMENT OF AQUITTAL

      Under Federal Rule of Criminal Procedure 29(a), the district court “on the

defendant’s motion[,] must enter a judgment of acquittal of any offense for which

the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). We

review both the denial of a motion for a judgment of acquittal and the sufficiency

of the evidence de novo, viewing the evidence in the light most favorable to the

government and drawing all reasonable inferences in favor of the jury’s verdict.

United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). We will affirm a

conviction “if there is any reasonable construction of the evidence that would have

allowed the jury to find the defendant guilty beyond a reasonable doubt.” Id.

(quotation marks and alteration omitted).

                 II. ELEMENTS OF MACENA’S OFFENSES

      To convict a defendant of a false claims conspiracy to defraud the

government under 18 U.S.C. § 286, the government must prove “the existence of

an agreement to achieve an unlawful objective, the defendant’s knowing and

voluntary participation in the conspiracy, and the commission of an overt act in

furtherance of it.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014)

(quotation marks omitted), cert. denied, 135 S. Ct. 1882 (2015). The unlawful

objective of a § 286 conspiracy is to defraud the federal government “by obtaining

or aiding to obtain the payment or allowance of any false, fictitious or fraudulent


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claim[.]” 18 U.S.C. § 286. The extent of knowledge of details in the conspiracy

does not matter if the proof shows the defendant knew the essential objective of the

conspiracy. Baldwin, 774 F.3d at 721.

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

government must prove that the defendant: (1) participated in a scheme or artifice

to defraud; (2) with the intent to defraud; and (3) used, or caused the use of,

interstate wire transmissions for the purpose of executing the scheme or artifice to

defraud. Martin, 803 F.3d at 588. Wire fraud can be proved by circumstantial

evidence. Id. A person “causes” the wires to be used within the meaning of 18

U.S.C. § 1343, when he acts with knowledge that the use of the wires will follow

in the ordinary course of business, or where such use can reasonably be foreseen,

even though not actually intended. United States v. Ward, 486 F.3d 1212, 1222

(11th Cir. 2007).

      To convict a defendant of aggravated identity theft under 18 U.S.C.

§ 1028A, the government must prove that the defendant: (1) knowingly transferred,

possessed, or used; (2) the means of identification of another person; (3) without

lawful authority; (4) during and in relation to a felony enumerated in § 1028A(c).

United States v. Barrington, 648 F.3d 1178, 1192 (11th Cir. 2011). Wire fraud is

one of the enumerated felonies in § 1028A(c). 18 U.S.C. § 1028A(c)(5). With

respect to mens rea, the government must also show that the defendant knew the


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means of identification at issue belonged to another person. United States v. Doe,

661 F.3d 550, 561 (11th Cir. 2011).

               II. SUFFICIENCY OF THE TRIAL EVIDENCE

      Here, the trial evidence, viewed in the light most favorable to the

government, amply supported the jury’s verdict on all offense counts. At trial,

Bolen testified that she was involved in preparing false tax returns using stolen

identities. Bolen filed the tax returns electronically and received the resulting

refunds through prepaid debit cards. Bolen initially approached Defendant Macena

and asked her to provide Bolen with mailing addresses Bolen could use to receive

the debit cards containing the tax refunds. Defendant Macena agreed, providing

Bolen between five and ten addresses. When none of those addresses received a

debit card, Bolen explained to Defendant Macena that the scheme was like

“playing a lottery,” and that only some of the tax returns would “go through.”

      Later, Defendant Macena asked Bolen if she would prepare tax returns for

Macena. Bolen agreed to do so, but only if Defendant Macena provided the

personal information used to prepare the returns. Over time, Defendant Macena

provided Bolen between 50 and 100 docket sheets from the Dothan City Jail,

which Defendant Macena told Bolen that Macena had obtained from a man named

Neal. The docket sheets contained inmates’ personal information, such as social

security numbers and dates of birth, which Bolen used to file false tax returns.


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Bolen said she and Defendant Macena agreed to split the refunds generated from

the false returns evenly.

      Neal, Defendant Macena’s accomplice at the bail bonding company, also

testified. According to Neal, Defendant Macena approached him to obtain the

docket sheets for Bolen, whom Macena described as “a friend that did income tax.”

In exchange, Defendant Macena agreed to give Neal a piece of the refunds. Neal

gave Defendant Macena docket sheets on five or six occasions, but never met

Bolen. Later, Defendant Macena contacted Neal asking for more docket sheets

because Bolen knew someone who wanted them.

      At some point, Bolen began cooperating with Internal Revenue Service

investigators. Special Agent Louie Wilson testified that Bolen made several

recorded telephone calls to Defendant Macena. During these recorded calls,

Defendant Macena, among other things, (1) agreed to get Bolen more “names” so

that Bolen could sell them to another person as a “quick flip”; (2) expressed

concerns about some of the names not “going through” or being “repeats”; (3)

advised Bolen that her “friend” at the bonding company was going to get some

“fresh sheets” and that Macena had warned him that sheets with the birthdates

redacted where “no good” because they needed birthdates; and (4) stated that she

had hidden some of the sheets Neal had given her in storage.




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      Special Agent Wilson also testified that a search of Defendant Macena’s

storage locker found items commonly associated with stolen identity refund fraud,

including debit cards with names that also appeared on Dothan City Jail records.

In a post-arrest interview, Defendant Macena admitted to Special Agent Wilson

that Bolen “approached her about filing false tax returns and asked [Macena] to

contact Mr. Neal at the bail bonding company to see if he could provide them with

names that could be used to file these false tax returns.” Defendant Macena further

admitted: (1) obtaining names from Neal for Bolen; (2) splitting the funds from

one prepaid debit card with Bolen; (3) receiving telephone calls from Bolen asking

for more names that Bolen could sell to someone else; and (4) attempting to

contact Neal to try to get more names for Bolen.

      From the above evidence, a reasonable jury could readily conclude beyond a

reasonable doubt that Defendant Macena knew she was participating in a stolen

identity tax refund fraud scheme. According to the testimony of Bolen, Neal, and

Special Agent Wilson, Defendant Macena was fully aware that the docket sheets

she got from Neal and gave to Bolen were used to prepare unauthorized tax returns

with the goal of receiving fraudulent tax refunds issued on prepaid debit cards.

Indeed, Bolen explained the scheme to Defendant Macena, who then explained it

to Neal. Moreover, Defendant Macena’s own statements made during the recorded

calls with Bolen indicate that she was well aware of the nature of the scheme.


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      Notably, in addition to all of the evidence discussed above, Defendant

Macena elected to testify in her own defense. At trial, Macena said that Bolen

never explained to her how Bolen was using the docket sheets and said that Bolen

gave her funds from debit cards for doing Bolen “a favor.” Macena claimed that

she did not understand what Bolen was referring to in their recorded telephone

calls and merely said what she thought Bolen wanted to hear. The jury, however,

was free to disbelieve Macena and find that in fact the opposite was true. See

United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (explaining that a

defendant’s testimony, “if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt”).

      Defendant Macena’s arguments about the credibility of Bolen and Neal are

unavailing because their testimony was not “unbelievable on its face.” See United

States v. Thompson, 422 F.3d 1285, 1291-92 (11th Cir. 2005). Nor has Defendant

Macena identified any facts that would render their testimony impossible under the

laws of nature. See id. Both Neal’s and Bolen’s possible incentives to lie were

brought out on cross examination. The jury was free to disbelieve the two

government witnesses, but obviously did not do so. See United States v. Calderon,

127 F.3d 1314, 1324-25 (11th Cir. 1997) (rejecting an attack on the credibility of

witnesses who were convicted felons cooperating with the government). Because




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neither Bolen’s nor Neal’s testimony was incredible as a matter of law, the Court

must accept the jury’s credibility findings. See id.

       Finally, Defendant Macena appears to contend the government failed to

prove she committed wire fraud because she was not involved with filing the tax

returns and did not know Bolen was using interstate wires to file the tax returns.

The government, however, did not need to prove that Macena personally used

interstate wires. Rather, by proving that Defendant Macena gave Bolen the stolen

docket sheets knowing that Bolen would use them to prepare and submit fraudulent

tax returns, the government proved that Macena “caused the use” of wires by

obtaining the docket sheets for Bolen. See Ward, 486 F.3d at 1222. Bolen

testified that she filed the returns electronically. Even if Defendant Macena was

unaware of the exact method Bolen used to conduct the refund fraud, it was

reasonably foreseeable that the submission of a large number of fraudulent tax

returns would be done electronically. See id. (explaining that the use of wires need

only be reasonably foreseeable).1

       In sum, there was ample evidence from which the jury could conclude

beyond a reasonable doubt that Macena was guilty of wire fraud, aggravated


       1
         In the summary of the argument and the final conclusion, Macena’s brief states that to
convict her of aggravated identity theft, the government needed to prove that she was aware that
the identifications used in the fraud scheme belonged to other people. Because Macena’s brief
provides no further argument or analysis, however, she has abandoned this issue. See United
States v. King, 751 F.3d 1268, 1277 (11th Cir.), cert. denied, 135 S. Ct. 389 (2014) (explaining
that mere terse statements in a brief are insufficient to raise an issue on appeal).
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identity theft, and conspiracy to defraud the government by filing false claims.

Accordingly, the district court did not err in denying Macena’s motions for a

judgment of acquittal. 2

      AFFIRMED.




      2
          Defendant Macena does not appeal her 34-month sentence.
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