           Case: 16-16930   Date Filed: 06/18/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16930
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cr-00209-PGB-TBS-2



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus

DERMA MILLER,

                                                        Defendant - Appellant.

                       ________________________

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

                              (June 18, 2018)

Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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       Derma Miller 1 appeals her convictions for three counts of aggravated

identity theft in violation of 18 U.S.C. § 1028A. On appeal, Derma argues the

district court erred when it answered a jury question by providing the jury with the

pattern instruction defining “possession.”

                                                I.

       The superseding indictment charged Derma and her mother, Virginia, with

one count of conspiracy to steal and convert government money, in violation of 18

U.S.C. § 371; three counts of theft of government funds, in violation of 18 U.S.C.

§ 641; and three counts of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1) and (b). The substantive counts alleged the Millers used the

identities of F.T., M.S., and J.K. to file false tax returns for 2010 and get refunds.

With respect to the aggravated identity theft counts, Derma was charged with

aiding and abetting her mother.

       Derma went to trial. The government introduced evidence that Virginia

prepared fraudulent tax returns using stolen identities for tax years 2008, 2009, and

2010, including for F.T, M.S., and J.K. The tax refunds were then directly

deposited into an account opened and solely controlled by Derma at Trustco Bank

called “Derma Miller DBA Derma.” Of the $568,609 deposited into the account



       1
          Because this case involves several members of the Miller family, we will refer to them
by their first names.
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from February 2009 to February 2011 from tax refunds, the Millers took at least

$396,711 for themselves.2

       The government showed that Derma regularly wrote large checks to herself

and her family from this account, made large cash withdrawals, and used the

money in the account to pay for personal expenses. For example, from January 28,

2011 to February 11, $126,373.14 in tax refunds was deposited into Derma’s bank

account. In the same time period, Derma withdrew $84,977. Of this amount,

$26,000 was withdrawn in cash; $31,334 by check payable to Virginia; $5,754 by

check payable to Brandi, her sister; $15,900 by check to Benny, her father; and

$2,000 by check payable to Benny Jr., her brother. After the bank became

suspicious that the deposited tax returns were fraudulent, the account was closed

on February 17, 2011.

       Derma testified that she opened the account and made the withdrawals on

Virginia’s instruction, and otherwise had nothing to do with the tax-preparation

business.

       Before the jury began its deliberations, the district court instructed them on

aggravated identity theft:

              It is a federal crime to commit aggravated identity theft.
       2
         98.6% of deposits into the Trustco account were from tax refunds. However, not all the
refunds were from fraudulent tax returns and some refunds were disbursed to clients. To
calculate the amount stolen, the government excluded checks made out to a client, as well as
checks to Virginia or Derma where the memo line listed a client name and there was a
corresponding tax-refund deposit.
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              Defendant Derma Miller can be found guilty of that offense if
      all of the following facts are proved beyond a reasonable doubt:

            (1) The Defendant knowingly transferred, possessed, or used
            another person’s means of identification;

            (2) Without lawful authority; and

            (3) During and in relation to the theft of government money.

             The Government must prove that Defendant Derma Miller
      knowingly transferred, possessed, or used another person’s identity
      “without lawful authority.” The Government does not have to prove
      that the Defendant stole the means of identification, only that there
      was no legal authority for the Defendant to transfer, possess, or use
      them.

             The Government must prove that the Defendant knew that the
      means of identification, in fact, belonged to another actual person
      living or dead and not a fictitious person. A means of identification
      includes a name, Social Security number, or date of birth.

             Further, the Government must prove that the means of
      identification was possessed “during and in relation to” the crime
      specified in the superseding indictment, that is theft of government
      property. The phrase “during and in relation to” means that there
      must be a firm connection between Defendant Derma Miller, the
      means of identification, and the crime specified in the superseding
      indictment. The means of identification must have helped with some
      important function or purpose of the crime and not simply have been
      there accidentally or coincidentally. The means of identification must
      at least facilitate, or have the potential of facilitating, the crime
      specified in the count of the superseding indictment.

      During jury deliberations, the jury asked, “If a check is deposited into an

account, [t]hat check contains the identity information. Does the owner of that

account, then ‘possess’ the identity information[?]” The district court determined


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answering the question directly would improperly decide a question reserved for

the jury and telling the jurors to use their common sense may mislead them

because “the law often determines and defines words in unique and special ways.”

The court thus believed it was better to give the jury the pattern instruction

defining “possession” because it’s a “blanket instruction” setting out “basic

principles.” That instruction says:

             The law recognizes several kinds of possession. A person may
      have actual possession, constructive possession, sole possession, or
      joint possession.

             “Actual possession” of a thing occurs if a person knowingly has
      direct physical control of it.

             “Constructive possession” of a thing occurs if a person does not
      have actual possession of it, but has both the power and the intention
      to take control over it later.

            “Sole possession” of a thing occurs if a person is the only one
      to possess it.

            “Joint possession” of a thing occurs if two or more people share
      possession of it.

             The term “possession” includes actual, constructive, sole, and
      joint possession.

      Derma objected, arguing “the charge of identity theft ha[d] already taken

place when . . . Virginia [] took that information and filed it with the IRS.” Derma

added that she didn’t think “a check being deposited into an account gives

possession of identity to the accountholder.” The district court said this was an


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argument about whether “the facts of the case support possession,” which was “not

a discussion that [the court] can have with the jury.” The court decided to give the

instruction. The parties then requested the court include references to two other

instructions. Fearing this may cause the jury to disregard other instructions, the

court added the jury should read the possession instruction “in conjunction with the

Court’s previous instruction on the law.”

      About an hour after the jury received its answer, it returned a guilty verdict

on all counts. Derma then filed a motion for new trial, arguing the district court

erred in answering the jury’s question with the possession instruction. After the

government responded, the district court denied the motion. Derma was sentenced

to 60-months imprisonment for the conspiracy and theft counts, and a consecutive

24 months for the aggravated identity theft counts. This appeal followed.

                                         II.

      “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party.” United States v.

Myers, 972 F.2d 1566, 1572 (11th Cir. 1992). However, we give district courts

“wide discretion as to the style and wording employed,” Goldsmith v. Bagby

Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008), and in how they respond to a

jury question, United States v. Lopez, 590 F.3d 1238, 1247–48 (11th Cir. 2009).

This Court “will not reverse a conviction on the basis of a jury charge unless the


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issues of law were presented inaccurately, or the charge improperly guided the jury

in such a substantial way as to violate due process.” United States v. Isnadin, 742

F.3d 1278, 1296 (11th Cir. 2014) (quotation omitted).

       When answering a jury question, “the court should be especially careful not

to give an unbalanced charge.” United States v. Sutherland, 428 F.2d 1152, 1157

(5th Cir. 1970).3 The court should remind the jury “that all instructions must be

considered as a whole or take other appropriate steps to avoid any possibility of

prejudice to the defendant.” Id. at 1158. “A challenged supplemental jury

instruction is reviewed as part of the entire jury charge, in light of the indictment,

evidence presented and argument of counsel to determine whether the jury was

misled and whether the jury understood the issues.” United States v. Johnson, 139

F.3d 1359, 1366 (11th Cir. 1998) (quotation omitted).

                                              III.

       On appeal, Derma notes the tax refunds were deposited in her bank account

by wire transfer, not physical checks. She argues the jury’s question about check

deposits showed confusion about the facts, and the court’s possession instruction

added to the jury’s confusion by incorrectly describing the wired funds “as a thing




       3
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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or other matter subject to being possessed.” Derma does not argue the court

incorrectly defined “possession” or the elements of aggravated identity theft.

      The district court did not abuse its discretion in answering the jury’s

question with the possession instruction. The jury’s question indicated confusion

about the meaning of possession, not about whether it was possible to possess

identity information or a check. As the court noted, the possession instruction sets

out basic principles that are familiar to lawyers, but may be unfamiliar to lay

people. For example, while lay people might think “possession” refers to

physically holding things, the instruction clarifies that possession can also be

constructive, based on power and intent. That the jury was able to reach a verdict

within an hour of the court’s answer suggests the possession instruction was

responsive to their question. See id.

      Beyond that, the district court was “especially careful not to give an

unbalanced charge.” Sutherland, 428 F.2d at 1157. The court understood that

answering the jury’s question with a “yes” or a “no” might improperly dictate their

conclusion about whether the facts supported the aggravated identity theft charges.

And the court properly avoided referring to any particular instruction, instead

directing the jury to consider the supplemental instruction along with the others

already given. See id.




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      Finally, we review de novo the supplemental instruction with the rest of the

record to determine if the instruction so misled the jury as to violate Derma’s due

process. See Isnadin, 742 F.3d at 1296. Derma was charged with aiding and

abetting aggravated identity theft. The jury was thus required to decide whether

Derma intentionally helped her mother commit aggravated identity theft, even if

she didn’t personally perform every act necessary to commit the crime. See

Rosemond v. United States, 572 U.S. ___, 134 S. Ct. 1240, 1245 (2014) (“As at

common law, a person is liable under [18 U.S.C.] § 2 for aiding and abetting a

crime if (and only if) he (1) takes an affirmative act in furtherance of that offense,

(2) with the intent of facilitating the offense’s commission.”). Aggravated identity

theft isn’t complete unless the stolen identities were possessed in relation to or

during another crime, here, theft of government funds. The government introduced

evidence that Virginia prepared fraudulent tax returns using stolen identities for tax

years 2008, 2009, and 2010, including for F.T, M.S., and J.K. The jury’s guilty

verdict as to the conspiracy count shows it rejected Derma’s testimony that she was

an unwitting and unwilling participant. And Derma’s opening of the Trustco bank

account to receive the tax refunds and her withdrawals on the account to pay

herself, her family, and her personal expenses, show that she committed theft of

government funds. At bottom, the jury had sufficient facts to determine Derma

aided and abetted aggravated identity theft without relying on the nature of the


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refunds as wire transfers or check deposits. Therefore, there is no indication the

supplemental possession instruction so misled the jury as to violate due process.

See Isnadin, 742 F.3d at 1296.

      AFFIRMED.




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