         10-1804
         United States v. Cleveland Valentine

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of October, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT A. KATZMANN,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _____________________________________
13
14       United States of America,
15
16                           Appellee,
17
18                    v.                                          10-1804
19
20       Cleveland Valentine,
21
22                           Defendant-Appellant.
23
24       _____________________________________
25
26
27       FOR DEFENDANT-APPELLANT:                     JULIA PAMELA HEIT, New York,
28                                                    New York.

                                                  1
1    FOR APPELLEE:                       STEPHAN J. BACZYNSKI,
2                                        Assistant United States
3                                        Attorney for William J.
4                                        Hochul, Jr., United States
5                                        Attorney for the Western
6                                        District of New York,
7                                        Buffalo, New York.

8        Appeal from a judgment of the United States District

9    Court for the Western District of New York (Larimer, J.).

10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

11   AND DECREED that the judgment of the district court is

12   AFFIRMED.

13       Cleveland Valentine appeals his conviction for

14   aggravated identity theft, under 18 U.S.C. § 1028A(a)(1), on

15   the ground of insufficient evidence that he knew the Social

16   Security number he used belonged to a real person.     We

17   assume the parties’ familiarity with the underlying facts,

18   the procedural history, and the issues presented for review.

19       “We review de novo a challenge to sufficiency of the

20   evidence.”    United States v. Naiman, 211 F.3d 40, 46 (2d

21   Cir. 2000).     However, “[w]e will not disturb a conviction on

22   grounds of legal insufficiency of the evidence at trial if

23   any rational trier of fact could have found the essential

24   elements of the crime beyond a reasonable doubt.”     Id.

25   (internal citations and quotation marks omitted).




                                     2
1        In Flores-Figueroa v. United States, 556 U.S. 646

2    (2009), the Supreme Court held that “§ 1028A(a)(1) requires

3    the Government to show that the defendant knew that the

4    means of identification at issue belonged to another

5    person.”   Id. at 657.   Valentine posits that a reasonable

6    juror could have found that “[a] third party could have

7    directed [Valentine] to use” the fraudulent Social Security

8    information.   But Flores-Figueroa does not require the

9    government to dispositively disprove every conceivable

10   explanation supporting innocent use of a fraudulent Social

11   Security number, i.e., use of it without knowing it belonged

12   to a real person.   See, e.g., United States v. MacPherson,

13   424 F.3d 183, 190 (2d Cir. 2005) (“The possibility that

14   inferences consistent with innocence as well as with guilt

15   might be drawn from circumstantial evidence is of no matter

16   to sufficiency analysis because ‘it is the task of the jury,

17   not the court, to choose among competing inferences.’”)

18   (quoting United States v. Morgan, 385 F.3d 196, 204 (2d Cir.

19   2004)).

20       The jury was given instructions as to the § 1028A(a)(1)

21   knowledge requirement, consistent with Flores-Figueroa, and

22   concluded that each of the elements, including the mens rea

23   requirement, was met beyond a reasonable doubt.   On

24   Valentine’s Rule 29 motion, the district court determined

                                    3
1    that the jury’s inferences were reasonable.   United States

2    v. Valentine, No. 08-cr-6124L, 2010 WL 681237, at *1

3    (W.D.N.Y. Feb. 24, 2010).   So do we.

4        Viewing the facts in the light most favorable to the

5    Government, the evidence supports the inference that

6    Valentine knew he was using a real person’s Social Security

7    number when he applied for a driver’s license renewal in

8    2005.   A reasonable juror easily could have concluded beyond

9    a reasonable doubt that Valentine knew he needed to use both

10   a real person’s birth date as well as his Social Security

11   number to evade the DMV’s validation process.   See Castillo

12   v. United States, No. 09-cv-4222(ENV), 2011 WL 4592829, at

13   *10 (E.D.N.Y. Sept. 30, 2011) (defendant’s knowledge of

14   computerized border checks permits a reasonable inference

15   that he knew he had to obtain a passport belonging to a real

16   person).

17       Finding no merit in Valentine’s remaining arguments, we

18   hereby AFFIRM the judgment of the district court.
19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




                                   4
