             Case: 13-15301     Date Filed: 10/24/2014   Page: 1 of 10


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-15301
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:13-cr-20338-KMW-3

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

TONYA WILLIAMS,
a.k.a. Tanya Williams,


                                                              Defendant-Appellant.

                           ________________________

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

                                (October 24, 2014)

Before TJOFLAT, WILLIAM PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Tonya Williams appeals her convictions for three counts of aggravated

identity theft. 18 U.S.C. §§ 2, 1028A(a)(1). Williams challenges the denial of her
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motion for a mistrial; the exclusion of a criminal complaint under Federal Rule of

Evidence 403; and the sufficiency of the evidence. We affirm.

      Williams and her cohorts traveled from New York to Florida, where they

received fraudulent credit cards and instructions from a Chinese man to purchase

specific items in particular stores. For a couple of days, Williams and her cohorts

used their fraudulent credit cards to buy goods from Louis Vuitton and Apple

stores in Orlando, Boca Raton, and Dania Beach. Louis Vuitton tracked the

purchases and notified its stores that three individuals could be using fraudulent

credit cards. The notice contained a physical description of each individual.

      Eric Enrique Alman, a security officer for the Saks Fifth Avenue store in

Miami with a Louis Vuitton boutique, noticed Williams and her cohorts enter the

store because they matched the individuals described in the notice. Alman watched

Williams walk to the register and present a SunTrust credit card with an account

number ending in 4075. Alman entered the account number in a credit card

identification system and learned that the account number was issued by BB&T

Bank. After the SunTrust card was declined for exceeding the purchase limit,

Williams presented for payment a Capital Bank credit card with an account

number ending in 2575. Alman also checked that account number and learned that

it was issued by HSBC Bank. The Capital Bank card also was declined for




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exceeding the purchase limit, and Williams attempted, without success, to make a

smaller purchase using the SunTrust card.

      Alman approached Williams and asked to speak with her about counterfeit

credit cards, and Williams agreed to accompany Alman to the security office.

Inside the office, Williams relinquished several credit cards, including the cards

ending in account numbers 4075 and 2575 and a third card with an account number

ending in 8454, which she had used to purchase a laptop computer at a nearby

Apple store. Later that day, a salesman at the Apple store identified Williams from

a photo array and recounted Williams’s story about buying the computer for her

brother.

      Jeremy Joseph, an agent of the United States Secret Service, interviewed

Williams twice. In the security office, Williams told Joseph about her role in the

fraudulent credit card scheme, traveling to Florida, and using passport photographs

to create false identification documents. Williams was arrested and transported to

the police station, where she admitted to Joseph that she had not applied for the

fraudulent credit cards and that she knew the account numbers were stolen, but

“she did not know specifically who they belonged to.” And Williams provided a

written statement acknowledging that she “[did not] know whose account numbers

were on the fake cards” and that she “had no knowledge where they got the stolen

numbers from.” Joseph explained to Williams that a credit card would not work


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unless it was encoded with a real account number belonging to a bank-approved

account as opposed to a random series of made-up numbers, and Williams said that

she understood.

      At trial, a cardholder and two bank officials testified that Williams had used

fraudulent credit cards that were imprinted and encoded with account numbers that

banks had assigned to real persons. Patty Joe Blankenship testified that she had a

Chase Bank credit card with an account number ending in 8454; she had not given

Williams permission to use the account number; and she had not made a $1,603.93

purchase at the Apple Store in Miami, Florida. Nancy Weeden, an operations

employee at BB&T Bank, and Ramon Gabriel Casanova, a manager at HSBC

Bank, testified that applicants for debit and credit accounts had to submit

identification documents, which the banks verified before assigning account

numbers. Weeden testified that Williams did not open an account with BB&T;

BB&T issued a debit card account number ending in 4075 to Pavel Levshyn under

a business account for S&P Construction; and that account number had been

imprinted on Williams’s fraudulent SunTrust credit card. Casanova testified that

HSBC issued a credit account number ending in 2575 to Yan C. Yeung; that

account number had been imprinted on Williams’s fraudulent Capital One card;

and that account number had been used to make a purchase at an Apple store and

twice had been declined at Saks Fifth Avenue. Casanova also testified on cross-


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examination that a business could obtain a credit account number and have

individual users approved on the account; credit reporting agencies used

information on the account to create a credit profile for the users; and the credit

profile could be used to obtain additional credit cards.

      Agent Joseph testified about his conversations with Williams and his

experience as a fraud investigator. When questioned on cross-examination if

“credit cards in a fraudulent transaction . . . have to belong to . . . a real person,”

Joseph responded, “[f]or an account to be authorized and a transaction to be

complete, the account number needs to be a real account number” and “[i]t needs

to belong to a person or a business . . . .” Williams asked Joseph if an account

number could be assigned to a “fictitious identity,” and he answered, “[f]or a

completely fictitious card to be created that would also contain a real account

number . . ., [the issuing bank would have] failed to establish that it was a false

Social Security number, a false individual, or a false business[.]” And Joseph

explained that, “to [his] knowledge, in [his] training and experience, [he] [had]

never come across a card that was fictitious in that the account number was issued

to not a real person or business.”

      Williams asked Joseph whether he knew of a criminal complaint filed in

New Jersey that charged fraudsters with obtaining credit accounts “in large part, by

creating what is called synthetic identities, identities of people who do not exist,”


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and after Joseph responded negatively, Williams moved to admit a copy of the

complaint into evidence. Williams sought to admit the complaint, which she

referred to as the Qureshi complaint, to substantiate her argument that she did not

know that the account numbers on her fraudulent credit cards belonged to real

persons. Williams argued that the complaint was an “adopted admission by the

Department of Justice . . . [that] credit card numbers that belong to the accounts do

not necessarily have to belong to a real person,” which established that the

Department had “taken the opposite view” from its position in Williams’s case that

“there is only one way to obtain a credit card number, and that is by a real person.”

The prosecutor objected and argued that the complaint was inadmissible hearsay;

irrelevant; and misleading because “someone’s real identity” was used to “generate

some of the information that led to the synthetic identities.”

      The district court excluded the complaint from evidence, but allowed

Williams to question Joseph about his “background and training” and his

knowledge of “the Secret Service pursuing synthetic identities.” Williams

questioned Joseph about his training in “different kinds of fraud” and whether “it

[was] possible for a criminal organization to make up a false identity by creating

fraudulent identification documents and a fraudulent credit profile,” and Joseph

responded that he had not encountered that type of fraud. Joseph also testified that

he was “not familiar” with people committing fraud by manufacturing false


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identities or by “pump[ing] up” the creditworthiness of a fictitious identity. Joseph

acknowledged that fraudsters could create false identities by “mak[ing] [up] false

tax returns and identification documents,” but Williams made “clear[] that’s not

what happened in this case.” And Joseph agreed with Williams that the “credit card

numbers . . . [in her case] came from people, real people.”

      Williams objected to the closing arguments of the prosecution and moved

for relief before and after the jury returned its verdict. Williams moved for a

judgment of acquittal and argued that the government had not proved that she

knew the credit account numbers belonged to a real person. Williams also moved

for a mistrial on the ground that the government had taken a position directly

contrary to that in another case. Later, Williams moved for a new trial and argued

that the Qureshi complaint should have been admitted into evidence.

      The district court did not abuse its discretion by denying Williams’s motion

for a mistrial based on prosecutorial misconduct. Williams argues that the

government presented false testimony from Agent Joseph and misled the jury by

stating in its closing arguments that it was impossible for a fictitious person to

obtain a credit card, but Williams misrepresents the record. Joseph testified on

cross-examination that he was not familiar with the use of fictitious identities to

commit credit card fraud. Williams fails to explain how Joseph’s testimony about

his personal experience with credit card fraud was false or required correction by


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the prosecutor. See United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010).

And the prosecutor was entitled to argue in closing that Williams’s theory of

defense that “a person could pick a name . .. out of the sky” and obtain a credit

account was irreconcilable with the bank officials’ testimony about the usual

method of obtaining credit cards and Williams’s statements to Joseph that she

knew the accounts numbers were stolen, but “did not know specifically who they

belonged to.” See United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).

After Williams argued that she could have been referring to a bank or a business

when she told Joseph that she did not “know whose account numbers were on the

fake card,” the prosecutor fairly responded that Williams knew from ordinary

human experience that “people, not businesses,” had to prove their identities to

obtain a credit account. See United States v. Sarmiento, 744 F.2d 755, 765 (11th

Cir. 1984). No prosecutorial misconduct occurred.

      The district court also did not violate Williams’s right to a fair trial under the

Fifth and Sixth Amendments by refusing to admit the Qureshi complaint into

evidence. Even if we were to assume that the Qureshi complaint was relevant to

Williams’s defense, its probative value was outweighed by the likelihood that it

would confuse the jury or waste its time evaluating a complicated scheme that was

dissimilar to the one in which Williams was involved. See Fed. R. Evid. 403. The

complaint, which charged that fraudsters obtained credit account numbers using


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false identities, would have distracted the jury from deciding whether Williams

knew the account numbers on her fraudulent credit cards belonged to real persons.

And the value of the complaint was further diminished by the lack of any evidence

that Williams knew of a scheme like the one described in the Qureshi complaint.

The district court properly excluded the complaint from evidence.

      Even if we were to assume that the district court erred by refusing to admit

the complaint, any error was harmless beyond a reasonable doubt in the light of the

substantial evidence of Williams’s guilt. A defendant commits aggravated identity

theft when she “knowingly . . . possesses[] or uses, without lawful authority, a

means of identification of another person,” 18 U.S.C. § 1028A(a)(1), which

includes a “number that may be used, alone or in conjunction with any other

information, to identify a specific individual,” id. § 1028(d)(7). Testimony from

security officer Alman, Agent Joseph, cardholder Blankenship, and bank officers

Weeden and Casanova proved that Williams unlawfully acquired and used credit

account numbers assigned to three specific individuals. And a jury reasonably

could have found that Williams knew the account numbers belonged to real

persons based on her repeated and successful use of those account numbers and her

statements to Joseph that she knew the account numbers were “stolen,” but she

“did not know specifically who they belonged to.” See United States v. Doe, 661

F.3d 550, 562–64 (11th Cir. 2011); United States v. Gomez-Castro, 605 F.3d 1245,


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1249 (11th Cir. 2010). Williams argues that she was wrongfully convicted of

stealing a credit account that belonged to a business, S&P Construction, but the

account number was assigned to and uniquely identified a specific individual,

Levshyn. See 18 U.S.C. § 1028(d)(7); United States v. Auguste, 392 F.3d 1266,

1268 (11th Cir. 2004). That the account number was attached to a business account

did not prevent that number from serving as a “means of identification” for

Levshyn.

      We AFFIRM Williams’s convictions.




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