     07-2933-cr
     United States v. Tureseo



 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3                                             August Term 2007

 4                                           Docket No. 07-2933-cr

 5   Argued: June 23, 2008                                                        Decided: May 14, 2009


 6   _____________________________________________________________________________

 7   UNITED STATES OF AMERICA,

 8                              Appellee,

 9             v.

10   JUAN TURESEO, also known as Daniel J. Ortega, also known as Juan Escobar, also known as
11   Juan Victoriana Fuentes, also known as Danny Ortega Ortiz, also known as Jose Victorino
12   Fuentes,

13                              Defendant-Appellant.

14   _____________________________________________________________________________

15   Before: MINER and CABRANES, Circuit Judges, and BERMAN, District Judge.*

16           Appeal from a judgment of conviction and sentence entered in the United States District
17   Court for the Southern District of New York (Duffy, J.), convicting defendant-appellant,
18   following a jury trial, of (1) reentering the United States after deportation following a conviction
19   for an aggravated felony; (2) making a false claim of United States citizenship; and (3)
20   knowingly engaging in the use of a means of identification of another person in relation to a false
21   claim of United States citizenship. On appeal, defendant-appellant challenges the jury
22   instruction as to the elements of (3) (aggravated identity theft) and claims denial of his right to be
23   present at trial.

24             Affirmed in part and vacated in part.




               *
               The Honorable Richard M. Berman, District Judge for the United States District Court
     for the Southern District of New York, sitting by designation.

                                                       1
 1                                                                 JOHN T. ZACH and Jonathan S.
 2                                                                 Kolodner (on the brief), Assistant
 3                                                                 United States Attorneys, for Michael
 4                                                                 J. Garcia, United States Attorney for
 5                                                                 the Southern District of New York,
 6                                                                 New York, NY, for appellee United
 7                                                                 States of America.
 8

 9                                                                 MALCOLM DUNCAN , Jennifer L.
10                                                                 Colyer, Steven M. Witzel, and Darcy
11                                                                 M. Goddard (on the brief), Fried,
12                                                                 Frank, Harris, Shriver & Jacobson
13                                                                 LLP, New York, NY, for defendant-
14                                                                 appellant Juan Tureseo.

15   MINER, Circuit Judge:

16          Defendant-appellant Juan Tureseo (“Tureseo”) appeals from a June 28, 2007 judgment of

17   conviction and sentence entered in the United States District Court for the Southern District of

18   New York (Duffy, J.). Tureseo was convicted, following a three-day jury trial, of (1) reentering

19   the United States after deportation following a conviction for an aggravated felony, in violation

20   of 8 U.S.C. § 1326(a), (b)(2) (“Count One”); (2) making a false claim of United States

21   citizenship, in violation of 18 U.S.C. § 911 (“Count Two”); and (3) knowingly engaging in the

22   transfer, possession, or use, without lawful authority, of a means of identification of another

23   person during and in relation to the commission of falsely claiming United States citizenship as

24   charged in Count Two, in violation of 18 U.S.C. § 1028A (“Count Three”). The District Court

25   sentenced Tureseo to a term of imprisonment of 125 months on Counts One and Two, and a

26   consecutive term of imprisonment of 24 months on Count Three, to be followed by a term of 1

27   year of supervised release. A mandatory special assessment of $300 was also imposed. On

28   appeal, Tureseo challenges the jury instruction as to the elements of Count Three and claims

29   denial of his right to be present at trial. Applying, inter alia, the Supreme Court’s decision in

30   Flores-Figueroa v. United States, — S. Ct. —, 2009 WL 1174852 (May 4, 2009), we affirm in

31   part and vacate in part the District Court’s judgment of conviction and sentence. We accordingly

32   remand to the District Court for further proceedings.

                                                       2
 1   I.     BACKGROUND
 2          A.      The Deportation of Juan Tureseo

 3          At an immigration hearing held on November 17, 1997, Tureseo admitted that he was not

 4   a United States citizen, that he was a native and citizen of El Salvador, and that he was in the

 5   United States without permission. At the conclusion of the proceedings, the immigration judge

 6   found Tureseo present in the United States without having been properly admitted or paroled, in

 7   violation of 8 U.S.C. § 1182(a)(6)(A)(i), and ordered him removed to El Salvador. Prior to his

 8   removal, Tureseo had been convicted in state court of attempted assault in the second degree

 9   with intent to cause physical injury with a weapon. In November 1997, an official of the former
10   Immigration and Naturalization Service, now the Department of Homeland Security (“DHS”),

11   witnessed the departure of Tureseo, by then also known as Jose Victorino Fuentes, from the

12   United States at John F. Kennedy Airport in Jamaica, New York, on “Lasca” flight 681, pursuant

13   to the removal order. Before being placed on that flight, Tureseo was photographed and

14   fingerprinted by immigration authorities for purposes of completing a Warrant of Deportation.

15          B.      Defendant Tureseo’s Arrest and Trial

16          In May 2006, Immigration and Customs Enforcement (“ICE”) was notified by the New

17   York City Police Department that a previously deported alien — later identified as defendant

18   Tureseo — had been arrested on or about May 3, 2006. After reviewing the documents

19   contained in Tureseo’s immigration file, ICE agents attempted to locate him. They eventually

20   found Tureseo at an address in Brooklyn, New York. When questioned by the agents at that

21   apartment, however, Tureseo first claimed that his name was “Danny Ortega.” After being told

22   that “it’s a crime to lie to federal agents,” however, he conceded that he was, in fact, Juan

23   Tureseo. Tureseo then admitted that he was born in El Salvador, that he had been deported from

24   the United States before, that he did not have permission to reenter the United States, and that he

25   knew it was illegal for him to reenter the United States. The agents arrested Tureseo, and upon a

26   search, the agents found on him a New York State Learner’s Permit in the name of “Danny

                                                       3
 1   Ortega,” as well as a New York State Benefit Identification Card in the name of “Danny Ortega.”

 2          Following his arrest, a grand jury returned an Indictment on August 10, 2006, charging

 3   Tureseo with illegal reentry into the United States after removal from the United States

 4   subsequent to a conviction for the commission of an aggravated felony. Philip Weinstein of the

 5   Federal Defenders of New York was initially appointed to represent Tureseo. Tureseo told

 6   Weinstein that he was, in fact, Danny Ortega, a United States citizen. Tureseo asked Weinstein

 7   to contact his wife, who would supply proof of his citizenship. Weinstein did so and received a

 8   copy of a birth certificate indicating the birth of “Danny Ortega” in Puerto Rico. Weinstein then

 9   forwarded the birth certificate to the United States Attorney’s Office for the Southern District of
10   New York to obtain a dismissal of the illegal reentry charge.1

11          On December 4, 2006, the grand jury returned a Superseding Indictment, charging

12   Tureseo with illegal reentry, false claim of United States citizenship, and the knowing

13   unauthorized use of a means of identification of another person during and in relation to his false

14   claim of United States citizenship.

15          At trial, the government called as a witness a person bearing the name of Danny Ortega.

16   This person identified the information contained in the birth certificate produced by Tureseo as

17   his own. He testified that the certificate listed his name, birthplace, mother’s name, mother’s

18   birthplace, father’s name, and father’s birthplace. The government also called Margarita Ortiz,

19   who was Ortega’s mother. Ortiz testified that the contents of the birth certificate proffered by

20   Tureseo pertained to her son, Danny Ortega. She confirmed Danny Ortega’s birth date, his

21   father’s name, and her own name on the birth certificate. Ortiz testified that Tureseo was not her

22   son.

23          At trial, the District Court accepted the qualifications of the ICE agent who arrested



            1
               On October 20, 2006, Tureseo’s current counsel, Steven M. Witzel of Fried, Frank,
     Harris, Shriver & Jacobson LLP, was substituted for Weinstein. Witzel was assisted by three
     attorneys from his firm who also appeared in court as his co-counsel for Tureseo.

                                                      4
 1   Tureseo as a fingerprint expert. The agent testified that he had compared the fingerprints on the

 2   Warrant of Deportation for Juan Tureseo with the fingerprints that were taken from Tureseo at

 3   the time of his arrest. The result of that comparison was that the fingerprints from the Warrant of

 4   Deportation matched the fingerprints taken from Tureseo on the day of his arrest. Accordingly,

 5   the agent concluded that defendant Juan Tureseo, whom he had arrested in May 2006, was the

 6   same Juan Tureseo whom the government had deported in 1997. The agent also testified that he

 7   had performed a search of relevant immigration databases. According to the results of that

 8   search, Tureseo had never applied for or received permission to reenter the United States, he had

 9   never been a citizen of the United States, and he was never naturalized. The government and

10   Tureseo made their closing arguments to the jury on January 25, 2007. The District Court

11   proceeded to charge the jury the same day.

12          With respect to the jury instructions, both the government and Tureseo had submitted

13   requests, pursuant to Fed. R. Crim. P. 30(a), for specific jury charges. Tureseo requested, inter

14   alia, that the jury be instructed on the aggravated identity theft charge of Count Three to include

15   that “the defendant knew at the time that he committed the offense that the identification in

16   question belonged to another actual person.” The District Court declined to accept both the

17   government’s and Tureseo’s proposed jury charges, including Tureseo’s proposed instruction on

18   Count Three. The District Court charged the jury using its customary jury instructions for similar

19   cases. As to Count Three, the District Court charged the jury as follows:

20          [T]here is one more thing that you must decide and that is whether the
21          government has proven beyond a reasonable doubt that during and in relation to
22          the offense of making a false claim of citizenship, the defendant knowingly
23          possessed or used without lawful authority a means of identification of another
24          person. To act without lawful authority means to act without lawful authorization
25          of the issuing government entity. . . . [I]dentification includes a birth certificate or
26          driver’s license or any identification number attached to those things. The means
27          of identification must be that of an actual person.

28   Immediately following the District Court’s jury instructions, outside the presence of the jury,

29   Tureseo renewed his request on Count Three that the District Court require the jury to find “that


                                                       5
 1   the defendant knew at the time he committed the offense that the identification in question

 2   belonged to an actual person.” The District Court again declined to charge the jury as proposed

 3   by Tureseo. Thereafter, with all but a small portion of the instructions completed, the District

 4   Court directed the jury to return on the morning of the next day.

 5          C.      The District Court’s Conclusion of Jury Instructions

 6          On the morning of January 26, 2007, Tureseo, who was being held in a detention facility

 7   when not in court for his trial, did not appear in court. The District Court informed the attorneys

 8   that it had been told that Tureseo “refused to come to court.” The District Court stated that

 9   Tureseo’s lead defense counsel, Steven M. Witzel, had asked the court for permission to “go over

10   and get [Tureseo] moving and get him out, bring him over here” but that it was “now an hour

11   plus since he made that phone call.” The District Court further stated that “[t]he jury has been

12   sitting [and] waiting. . . . [a]nd all that needs to be done is to give them the redacted indictment

13   . . . [and] explain[] to them that they don’t have to get to the third count if they acquit on the

14   second count and that’s it.”2 After acknowledging that one of Witzel’s co-counsel who was

15   present in the courtroom objected to the court continuing the jury charge, the court asked for the

16   jury to be brought into the courtroom.

17          The District Court explained to the jury that “the absence of the defendant and [Witzel] is

18   something that is of absolutely no significance whatsoever.” The District Court then completed
19   the jury instructions by stating that the jury could not “get to the third count without making a

20   decision of guilt on the second count,” and asked the jury to retire for deliberations.

21          Soon after the jury retired, Witzel returned with Tureseo to the District Court. Witzel and

22   the District Court briefly discussed jury instructions before Witzel raised “one other — one

23   matter with respect to what happened this morning” to explain Tureseo’s absence. Witzel stated



            2
                It will be recalled that Count Two charged Tureseo with making a false claim of United
     States citizenship, and Count Three charged Tureseo with unlawfully using a means of
     identification of another person in relation to his false claim of United States citizenship.

                                                        6
 1   that he was informed of a problem at the detention facility at approximately 10:10 a.m. and that

 2   he left the courthouse at approximately 10:20 a.m. to “ascertain the situation.” Witzel explained

 3   that Tureseo had

 4          begged the marshals to take him to court [but] the problem was, the same
 5          marshals who had taken him the last couple of days had double-cuffed him
 6          because he has a shoulder injury and cannot be single-cuffed, and a different
 7          marshal came today and tried to single-cuff him and could not close it and he — I
 8          don’t know what the marshal thought or exactly what was said but apparently
 9          must have thought that [Tureseo] was either faking it or refusing to cooperate.
10          [Tureseo] again said, I’m in the middle of trial, I need to go to court, please
11          double-cuff me. The marshal apparently, according to our client, said to him that
12          it’s his problem. [Tureseo] again said, I need to come to court. And instead, he
13          was not allowed to come to court. . . . [W]e were back here [at] about 11:20 [a.m.]
14          Witzel then moved for a mistrial, based on the absence of lead counsel and Tureseo from

15   a portion of the charge. The District Court denied the motion.

16          During deliberations, the jury sent the District Court four notes, one of which requested

17   that it be permitted to view Tureseo in person. The District Court permitted the jury to come into

18   the courtroom and look at Tureseo. Shortly thereafter, the jury returned a verdict of guilty on all

19   three counts. Tureseo was sentenced on June 28, 2007, and following entry of judgment, this

20   timely appeal followed.

21          D.      The Present Appeal

22          On appeal, Tureseo argues that the District Court violated his Fifth and Sixth Amendment

23   rights and, as well, Fed. R. Crim. P. 43, when it instructed the jury in his absence. Tureseo also

24   argues that the District Court improperly instructed the jury in explaining the charge of

25   aggravated identity theft in Count Three of the Indictment. Under the aggravated identity theft

26   statute, 18 U.S.C. § 1028A, it is a crime to “knowingly transfer[], possess[] or use[], without

27   lawful authority, a means of identification of another person” during and in relation to an

28   enumerated predicate felony, which in this case was the Ortega birth certificate supporting the

29   false claim of citizenship charged in Count Two. Tureseo maintains that to establish a violation

30   of aggravated identity theft, the government was required to prove beyond a reasonable doubt


                                                      7
 1   that Tureseo knew, at the time of the offense, that he was using the identity of an actual person in

 2   connection with his false claim of citizenship.

 3   II.    ANALYSIS
 4          A.      Standard of Review

 5          This Court reviews a decision regarding a defendant’s right to be present at a particular

 6   stage of trial de novo, see United States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997), but a

 7   district court’s determination of whether the defendant waived his right to be present at a

 8   particular stage of trial is reviewed for abuse of discretion, see United States v. Fontanez, 878

 9   F.2d 33, 35–36 (2d Cir. 1989). Where, as here, the defendant timely challenges the district
10   court’s jury instructions on a legal issue in proceedings below, this Court reviews the validity of

11   the district court’s jury instructions de novo. See United States v. George, 386 F.3d 383, 397 (2d

12   Cir. 2004).

13          B.      Tureseo’s Right To Be Present At His Trial

14          The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal

15   defendant to be present at trial to confront witnesses and the evidence against him. United States

16   v. Gagnon, 470 U.S. 522, 526 (1985). Through the Due Process Clause of the Fifth and

17   Fourteenth Amendments, this right to be present has been extended to other critical stages of trial

18   beyond those related to the defendant’s rights to confronting witnesses and evidence. See id.

19   That is, a defendant “has a due process right to be present in his own person whenever his

20   presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against

21   the charge.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (internal quotation marks and

22   citation omitted). Taken together, then, the constitutional right to be present at one’s own trial

23   exists “at any stage of the criminal proceeding that is critical to its outcome if [the defendant’s]

24   presence would contribute to the fairness of the procedure.” Stincer, 482 U.S. at 745; United

25   States v. Peterson, 385 F.3d 127, 137 (2d Cir. 2004). Rule 43 of the Federal Rules of Criminal

26   Procedure reinforces this constitutional right by providing that a criminal defendant has a right to


                                                       8
 1   be present at “every trial stage.” See Fed. R. Crim. P. 43; Fontanez, 878 F.2d at 35 (stating that

 2   Rule 43 was “explicitly intended to codify existing law concerning a defendant’s constitutional

 3   and common law rights to be present throughout trial” (internal quotation marks and citation

 4   omitted)). As relevant here, “[i]t is beyond dispute that a judge’s instructions to a jury constitute

 5   an integral part of the trial.” Fontanez, 878 F.2d at 35.

 6          The defendant’s constitutional and statutory right to be present, however, may be either

 7   expressly or effectively waived by the defendant. See, e.g., id. at 36 (citing, as examples, cases

 8   where the defendant effectively waived his or her right to be present by jumping bail, deliberately

 9   failing to appear for trial, or behaving in a disruptive manner during trial). To establish waiver,
10   the District Court must conduct a record inquiry to determine whether the defendant’s absence

11   was “knowing and voluntary” and without sound excuse — otherwise, a remand is ordinarily

12   warranted in the absence of such record inquiry. See United States v. Hernandez, 873 F.2d 516,

13   518–19 (2d Cir. 1989). Moreover, even after properly concluding that the right to be present has

14   been waived by the defendant, the District Court must then determine whether “there was on

15   balance a controlling public interest to continue the trial in the defendant’s absence.” Fontanez,

16   878 F.2d at 35. Any error by the District Court to continue the trial in the defendant’s absence is

17   reviewed for harmlessness, i.e., whether the error “‘created any reasonable possibility of

18   prejudice.’” See id. at 37 (quoting United States v. Toliver, 541 F.2d 958, 965 (2d Cir. 1976));

19   Toliver, 541 F.2d at 964–65 (stating that an error is harmless if harmless beyond a reasonable

20   doubt); see also Stincer, 482 U.S. at 745 (stating that the right to be present is not guaranteed

21   “when presence would be useless, or the benefit but a shadow” (internal citation and quotation

22   marks omitted)).

23          Here, the record is unclear as to whether the defendant knowingly and voluntarily

24   absented himself from his trial proceedings. Tureseo and one of his attorneys, Witzel, appeared

25   in the District Court shortly after the court had finished giving the limited jury instruction in their

26   absence. Witzel explained that Tureseo “begged” the marshal to take him to court but that the


                                                        9
 1   marshal refused after Tureseo, who allegedly was suffering from a shoulder injury, insisted that

 2   he be “double-cuffed” rather than “single-cuffed.” Beyond Witzel’s explanation, however, the

 3   District Court did not conduct the requisite inquiry into the circumstances of Tureseo’s absence.

 4   It did not confirm or inquire about Tureseo’s shoulder injury or attempt to contact the marshals

 5   involved with moving Tureseo in and out of the detention facility. Cf. Hernandez, 873 F.2d at

 6   518–19 (remanding case where, after the jury was impaneled in the absence of the defendant, the

 7   court failed to conduct inquiry into circumstances of defendant’s absence on the next day when

 8   the defendant offered an explanation for his absence).

 9          The record reveals that the District Court did not initially seek an explanation from either
10   Witzel or Tureseo upon their appearance in court. Instead, following a short colloquy with

11   respect to the content of the jury instructions, it was Witzel who initiated the explanation for

12   Tureseo’s absence as “one other — one matter with respect to what happened this morning.”

13   Although it may be that the District Court at some time conducted a thorough inquiry into the

14   reasons for Tureseo’s absence, that inquiry was not conducted on the record as required by law.

15   See id. Accordingly, we are constrained to find that the District Court’s decision to continue

16   proceedings in Tureseo’s absence was in error.

17          Notwithstanding the District Court’s failure to inquire on the record about the nature and

18   reasons for Tureseo’s absence, however, we find that such error was harmless in the

19   circumstances revealed here. Tureseo was present on the day when all but a small fraction of the

20   jury instructions were given. He was absent on the following day only for the time it took for the

21   court to give a brief instruction to the jury that it need not reach Count Three unless it first found

22   Tureseo guilty of Count Two. Moreover, the District Court prevented the jury from drawing

23   adverse inferences from Tureseo’s absence by instructing it not to place any significance on the

24   absence of defendant and Witzel. Cf. United States v. Fernandez, 829 F.2d 363, 367 (2d Cir.

25   1987) (“Fernandez’s absence was not improperly used to influence the jury, as the government

26   never called attention to his absence or argued that any negative inferences could be drawn from


                                                       10
 1   it, and [the] Judge . . . explicitly instructed the jury to disregard Fernandez’s absence.”); see also

 2   United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006) (stating that a jury is presumed to

 3   follow the court’s instructions). Insofar as Tureseo raises any concerns that the jury did not have

 4   an additional opportunity to examine his features — the main issue in his prosecution being one

 5   of identity — these concerns were eliminated when the jury was allowed to return to the

 6   courtroom to view him later during deliberations.

 7          Moreover, in light of the overwhelming evidence of Tureseo’s guilt, there was no

 8   possibility of prejudice here. With respect to the illegal reentry charge (Count One), the

 9   government established through fingerprint evidence that Tureseo was, in fact, the same “Juan

10   Tureseo” who had been previously deported. There was also evidence presented at trial that

11   Tureseo had signed his name “Juan Tureseo” on his fingerprint card and testimony of a federal

12   agent that Tureseo had admitted to being the previously deported “Juan Tureseo” at the time of

13   his arrest. On the false claim of United States citizenship charge (Count Two), it is undisputed

14   that Tureseo directed his prior attorney to send a birth certificate of one “Danny Ortega” — a

15   United States citizen — to the United States Attorney’s Office. There was no dispute at trial that

16   the birth certificate did not belong to Tureseo. The real Danny Ortega testified that the birth

17   certificate was his, and Danny Ortega’s birth mother testified at trial that the birth certificate was

18   Danny Ortega’s and that Tureseo was not her son.

19          Therefore, considering, in their totality, the brevity of the jury instructions given during

20   Tureseo’s absence, the District Court’s direction to the jury not to place any significance on

21   Tureseo’s absence, the jury’s opportunity to view Tureseo at its request, and the overwhelming

22   evidence establishing Tureseo’s guilt of Counts One and Two, any error by the District Court to

23   continue proceedings in the absence of Tureseo was harmless beyond a reasonable doubt.

24          C.      Count Three and the Scienter Requirement

25          At the time of Tureseo’s appeal, our sister circuits were in disagreement as to the

26   elements of the aggravated identity theft provision, 18 U.S.C. § 1028A(a)(1), which provides:

                                                       11
 1           Whoever, during and in relation to any felony violation enumerated in subsection
 2           (c), knowingly transfers, possesses, or uses, without lawful authority, a means of
 3           identification of another person shall, in addition to the punishment provided for
 4           such felony, be sentenced to a term of imprisonment of 2 years.

 5   18 U.S.C. § 1028A(a)(1) (emphasis supplied). Specifically, the circuits were divided as to

 6   whether the mens rea of “knowingly” modifies only the verbs “transfers, possesses, or uses” or

 7   also modifies the prepositional phrase “of another person,” even though that phrase comes after

 8   the adverb phrase “without lawful authority,” the indirect object “a means,” and the prepositional

 9   phrase “of identification.” Compare United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th

10   Cir. 2008) (holding that the “knowingly” mens rea does not modify “of another person”); United
11   States v. Hurtado, 508 F.3d 603, 608–09 (11th Cir. 2007) (same); United States v. Montejo, 442

12   F.3d 213, 215 (4th Cir. 2006) (same), with United States v. Godin, 534 F.3d 51, 61 (1st Cir.

13   2008) (holding that the “knowingly” mens rea modifies “of another person”); United States v.

14   Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008) (same); United States v. Villanueva-Sotelo,

15   515 F.3d 1234, 1246 (D.C. Cir. 2008) (same).

16           The Supreme Court resolved the circuit split in Flores-Figueroa v. United States, — S.

17   Ct. —, 2009 WL 1174852 (May 4, 2009), where the Court held that the aggravated identity theft

18   provision of 18 U.S.C. § 1028A(a)(1) “requires the Government to show that the defendant knew

19   that the means of identification at issue belonged to another person.” Id. at *7. Accordingly, we

20   are constrained to identify error in the District Court’s refusal to instruct the jury that an

21   aggravated identity theft conviction requires a finding that Tureseo knew that the means of

22   identity he used to falsely claim United States citizenship belonged to another person, i.e., an

23   actual person. See id. at *6–*7 (concluding that the aggravated identity theft provision was

24   intended to provide an enhanced sentence to those who knew the identity they were unlawfully

25   using was of a “real” person). We note that the learned District Court did not have the benefit of

26   the Supreme Court’s holding in Flores-Figueroa or any guidance from this Court when it charged

27   the jury in this case.

28           We further conclude that the District Court’s error was not harmless. Because a jury

                                                       12
 1   instruction that omits an essential element of the offense is constitutional error, a conviction can

 2   only stand if such error was harmless beyond a reasonable doubt. See DiGuglielmo v. Smith,

 3   366 F.3d 130, 136 (2d Cir. 2004) (citing Neder v. United States, 527 U.S. 1, 8–10 (1999)).

 4   The government asserts that Tureseo “was not simply using a Social Security number or an A-

 5   Number . . . . Instead, he was using someone else’s name, date of birth, biographical information

 6   and birth certificate,” and thus argues that this evidence was sufficient for any reasonable jury to

 7   conclude that Tureseo, by “assuming” an alternate identity, knew that he was using the identity of

 8   an actual person. Although there appears to be substantial evidence for the jury to conclude that

 9   Tureseo knew that Ortega was an actual person at the time he used Ortega’s birth certificate to
10   falsely claim United States citizenship, the evidence does not all flow in one direction. For

11   example, the jury was also presented with Ortega’s testimony that he had never met or seen

12   Tureseo before the trial, thus suggesting that Tureseo did not know of Ortega’s existence at all.

13   Therefore, we cannot conclude that the District Court’s improper jury instructions were harmless

14   beyond a reasonable doubt, and the District Court’s judgment of conviction with regard to

15   aggravated identity theft cannot stand.

16   III.   CONCLUSION
17          In accordance with the foregoing, the judgment of the District Court is VACATED as to

18   the conviction of aggravated identity theft and AFFIRMED in all other respects. The case is

19   remanded for further proceedings consistent with the foregoing.




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