09-3035-cr
USA v. Barrie

                           UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT

                                       _______________

                                       August Term, 2010

(Submitted: August 25, 2010                                        Decided: August 31, 2010)

                                     Docket No. 09-3035-cr

                                       _______________

                                  UNITED STATES OF AMERICA ,

                                                                                          Appellee,

                                             —v.—

                          MOUSSA MAGASSOUBA , also known as Moe,

                                                                                      Defendant,

                                        ALALIM BARRIE,

                                                                            Defendant-Appellant.

                                       _______________

Before:

                          KATZMANN , HALL , and CHIN , Circuit Judges.
                                     _______________

       Appeal from a judgment of conviction of the United States District Court for the

Southern District of New York (Patterson, J.), entered July 15, 2009, convicting defendant,

following a jury verdict, of one count of conspiracy to commit bank fraud, six substantive counts

of bank fraud, and one count of aggravated identity theft, and sentencing him principally to 65
months’ imprisonment. We affirm.

                                        _______________

                   Stewart L. Orden, New York, N.Y., for Defendant-Appellant.

                   Daniel W. Levy, E. Danya Perry, Katherine Polk Failla, Assistant United
                      States Attorneys, for Preet Bharara, United States Attorney for the
                      Southern District of New York, New York, N.Y., for Appellee.
                                       _______________

KATZMANN , Circuit Judge:

       The federal aggravated identity theft statute, 18 U.S.C. § 1028A, prohibits the knowing

transfer, possession, or use of a means of identification of another person “during and in relation

to” certain enumerated felony offenses. This appeal calls upon us in principal part to determine

whether venue in a prosecution under this statute is proper in any district where the predicate

felony offense was committed, even if the means of identification was not transferred, possessed,

or used in that district. Defendant-appellant Alalim Barrie appeals from a July 15, 2009

judgment of the United States District Court for the Southern District of New York (Patterson,

J.), convicting him, following a jury trial, of one count of conspiracy to commit bank fraud, six

substantive counts of bank fraud, and one count of aggravated identity theft. On appeal, Barrie

argues that the government failed to prove venue in the Southern District of New York by a

preponderance of the evidence with respect to the aggravated identity theft count, because there

was no evidence that he transferred, possessed, or used another person’s means of identification

within that district. We disagree, and hold that where (as here) venue is appropriate for the

predicate felony offense, so too is venue appropriate for a prosecution of the separate crime of

knowingly transferring, possessing, or using a means of identification of another person “during

and in relation to” that offense. We therefore conclude that venue was properly laid in the


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Southern District of New York with respect to the aggravated identity theft count, and affirm the

judgment of the district court.1

                                        BACKGROUND

       Broadly stated, Barrie’s conviction arises out of a bank fraud scheme designed to obtain

money from banks by counterfeiting, altering, and stealing checks, and by fraudulently

transferring funds from a stolen credit card account. The government charged Barrie with eight

counts: one count of conspiracy to commit bank fraud in violation 18 U.S.C. § 1349 (Count 1),

six counts of substantive bank fraud in violation of 18 U.S.C. § 1344 (Counts 2-7), and one count

of aggravated identity theft in violation of 18 U.S.C. § 1028A (Count 8).

       Count 7 (substantive bank fraud) and Count 8 (aggravated identity theft) related to

Barrie’s efforts to fraudulently withdraw money from the Bank of America credit card account

of Moise Mizrahi (a Brooklyn-based businessman involved in the distribution of small

appliances), and to transfer those funds to his own account. It is undisputed that venue was

properly laid in the Southern District of New York for Count 7, as Barrie maintained his

JPMorgan Chase Bank account, to which the stolen funds were transferred, in that district and

withdrew funds from that account at two different Chase branches in the Bronx. Defense

counsel raised a venue objection with respect to Count 8, however, arguing that all of the actions

that constituted aggravated identity theft took place either in Brooklyn, where Mr. Mizrahi

maintained his business, or in New Jersey, Delaware, and Ontario, Canada, the locations of the

Bank of America customer service centers that transferred the funds. The district court rejected

defense counsel’s venue argument, Barrie proceeded to trial, and the jury returned a guilty

       1
          In a companion summary order, we address and reject Barrie’s remaining challenge to
the district court’s loss calculation at sentencing.

                                                3
verdict on all eight counts of the Indictment. The district court sentenced Barrie principally to

65 months’ imprisonment.

       The district court entered final judgment on July 15, 2009, and the instant appeal

followed.

                                          DISCUSSION

       We review the sufficiency of the evidence as to venue in the light most favorable to the

government, crediting “every inference that could have been drawn in its favor.” United States

v. Rosa, 17 F.3d 1531, 1542 (2d Cir. 1994). Because venue challenges raise questions of law,

we review the district court’s legal conclusions de novo. See United States v. Svoboda, 347 F.3d

471, 482 (2d Cir. 2003). “[A]lthough venue is grounded in the Sixth Amendment, it is not an

element of the crime and the government need only establish venue by a preponderance of the

evidence.” United States v. Smith, 198 F.3d 377, 384 (2d Cir. 1999); see United States v.

Rommy, 506 F.3d 108, 119 (2d Cir. 2007) (“As this court has frequently observed, the venue

requirement, despite its constitutional pedigree, is not an element of a crime so as to require

proof beyond a reasonable doubt; rather, venue need be proved only by a preponderance of the

evidence.” (internal quotation marks omitted)).

       Here, Barrie argues that the government failed to prove venue in the Southern District of

New York by a preponderance of the evidence with respect to the aggravated identity theft count

because none of the acts that comprised that offense took place within that district. In so

arguing, Barrie emphasizes that the government failed to adduce any evidence demonstrating

that Barrie knowingly transferred, possessed, or used a means of identification of another person

in the Southern District of New York. We disagree, and hold that venue is proper in a



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prosecution under 18 U.S.C. § 1028A in any district where the predicate felony offense was

committed, even if the means of identification of another person was not transferred, possessed,

or used in that district. Because it is undisputed that venue was properly laid in the Southern

District of New York with respect to the predicate bank fraud charged in Count 7, so too was it

for the related aggravated identity theft offense charged in Count 8.

       Article III of the United States Constitution states that “[t]he Trial of all Crimes . . . shall

be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2,

cl. 3. The Sixth Amendment echoes this notion, declaring that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which district shall have been previously

ascertained by law.” U.S. Const. amend. VI. In furtherance of these provisions, Federal Rule of

Criminal Procedure 18 provides that venue lies “in a district where the offense was committed.”

       In determining whether an offense was committed in a particular district, we look to “the

nature of the crime alleged and the location of the act or acts constituting it.” United States v.

Cabrales, 524 U.S. 1, 5 (1998) (quotation marks omitted). In making this inquiry, we “must

initially identify the conduct constituting the offense (the nature of the crime) and then discern

the location of the commission of the criminal acts.” United States v. Rodriguez-Moreno, 526

U.S. 275, 279 (1999).2

       2
        Although this Circuit often applies a “substantial contacts test” that takes into account a
number of factors in determining whether venue is adequately proven, United States v. Royer,
549 F.3d 886, 895 (2d Cir. 2008), we need not apply that test here, in addition to the situs of the
crime test, because Barrie does not argue that his prosecution in the Southern District of New
York on the aggravated identity theft charge resulted in a hardship to him, prejudiced him, or
undermined the fairness of his trial. See United States v. Ramirez, 420 F.3d 134, 143 (2d Cir.
2005) (“[W]e need not be concerned about jeopardizing the values underlying the substantial
contacts test because [defendant] does not argue that being prosecuted in the Southern District of

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       In those cases where “the acts constituting the crime and the nature of the crime charged

implicate more than one location, the [C]onstitution does not command a single exclusive

venue.” United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985). Rather, absent an express

statutory provision to the contrary, any offense “begun in one district and completed in another,

or committed in more than one district, may be inquired of and prosecuted in any district in

which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a); see United

States v. Lombardo, 241 U.S. 73, 77 (1916) (“[W]here a crime consists of distinct parts which

have different localities the whole may be tried where any part can be proved to have been

done.”).

       The federal aggravated identity theft statute, 18 U.S.C. § 1028A, provides in relevant part

that

       Whoever, during and in relation to any [enumerated felony violation, including bank
       fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of
       identification of another person shall [be guilty of the offense].

18 U.S.C. § 1028A(a)(1) (emphasis added); see id. § 1028A(c)(5) (specifying bank fraud as an

enumerated felony).3 On its face, section 1028A prohibits conduct committed “during and in


New York ‘imposed an additional hardship on [him], prejudiced [him], or undermined the
fairness of [his] trial.’” (citation omitted)).
       3
           Here, Count 8 charged in relevant part that

       In or about November 2006, in the Southern District of New York and elsewhere,
       [Barrie] unlawfully, willfully, and knowingly did transfer, possess, and use, without
       lawful authority, a means of identification of another person during and in relation to the
       bank fraud offense charged in Count Seven of this Indictment, to wit, [Barrie] used and
       possessed, without lawful authority, the name, date of birth, and Social Security number
       of an individual who maintained an account at, among other institutions, Bank of
       America, N.A., which information was used to access and transfer funds held in that
       individual’s account to an account at JPMorgan Chase Bank, N.A., that [Barrie]
       controlled.

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relation to” certain predicate felony offenses. The commission of one of those predicate felony

offenses is thus an essential element of a section 1028A offense. Therefore, although this Circuit

has not specifically addressed the question of venue in a prosecution under section 1028A, we

have no trouble concluding that venue properly lies with respect to an aggravated identity theft

offense in any district in which venue lies for the predicate, in this case the Southern District of

New York.

       Our conclusion is supported by the Supreme Court’s decision in United States v.

Rodriguez-Moreno, in which the Court interpreted statutory language almost identical to that

contained in section 1028A as authorizing venue in any district in which it is properly laid for

the predicate offense. Specifically, the Court in that case considered the question of “whether

venue in a prosecution for using or carrying a firearm ‘during and in relation to any crime of

violence,’ in violation of 18 U.S.C. § 924(c)(1), is proper in any district where the crime of

violence was committed, even if the firearm was used or carried only in a single district.” 526

U.S. at 276. In assessing the nature of the substantive offense described in section 924(c) for

venue purposes, the Court read the statute as a whole, noting that

       a defendant’s violent acts are essential conduct elements. To prove the charged §
       924(c)(1) violation . . . , the Government was required to show that [defendant] used a
       firearm, that he committed all the acts necessary to be subject to punishment for [a crime
       of violence], . . . and that he used the gun “during and in relation to” the [crime of
       violence].

Id. at 280 (concluding that section 924(c)(1) contains “two distinct conduct elements . . . the

‘using and carrying’ of a gun and the commission of [a crime of violence]”). In other words,

because of the “during and in relation to” language, the Court viewed “the underlying crime of



S.A. 13.

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violence [as] a critical part of the § 924(c)(1) offense.” Id. at 280 n.4. And because the

predicate crime of violence was a critical part of the section 924(c)(1) offense, the Court held

that venue in a section 924(c)(1) prosecution is appropriate in any district in which venue is

appropriate for the predicate crime of violence.

        In so holding, the Court rejected defendant’s argument that for venue purposes the

predicate crime of violence (in that case kidnapping) was “completely irrelevant to the firearm

crime[] because [defendant] did not use or carry a gun during” the kidnapping. Id. at 281.

Rather, the Court reasoned, section 924(c)(1) criminalizes “both the use of the firearm and the

commission of acts that constitute a violent crime,” thus demonstrating that the section 924(c)(1)

offense takes place over the course of the predicate crime. Id. Accordingly, the Court concluded

that

        [t]he [kidnapping], to which the § 924(c)(1) offense is attached, was committed in all of
        the places that any part of it took place, and venue for the [kidnapping] charge against
        [defendant] was appropriate in any of them. . . . Where venue is appropriate for the
        underlying crime of violence, so too it is for the § 924(c)(1) offense. As the [kidnapping]
        was properly tried in New Jersey, the § 924(c)(1) offense could be tried there as well.

Id. at 282.

        A similar conclusion is warranted here.4 Section 1028A, like section 924(c)(1), prohibits

        4
          Barrie has failed to offer any meaningful basis for us to distinguish the Supreme Court’s
venue analysis in Rodriguez-Moreno. Although Barrie correctly notes that the Supreme Court
recently described the underlying felony offenses in section 1028A as “a set of predicate
crimes,” Flores-Figueroa v. United States, 556 U.S. --, 129 S. Ct. 1886, 1888 (2009), nothing in
that decision cuts against a conclusion that the commission of one of those “predicate crimes” is
a critical part of a section 1028A offense.

        Moreover, it bears noting that Congress enacted section 1028A in July 2004 — over five
years after the Supreme Court’s decision in Rodriguez-Moreno — and was thus well aware of
the Court’s venue analysis contained therein. When “judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the same language in a new statute
indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well,”

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certain conduct committed “during and in relation to” certain predicate felony offenses. Such

language plainly indicates that the predicate felony offense (here, bank fraud) is an essential

conduct element of the section 1028A offense. Moreover, like the kidnapping offense at issue in

Rodriguez-Moreno, it is well established that bank fraud is a continuing offense, see, e.g., United

States v. Duncan, 42 F.3d 97, 104 (2d Cir. 1994), thus permitting venue to lie in any district

where that crime was begun, continued, or completed, see 18 U.S.C. § 3237(a).

       The bank fraud charged in Count 7 — to which the section 1028A offense is attached and

which constituted an essential element of the 1028A offense — was committed in all of the

places that any part of it took place. Thus, for venue purposes, it does not matter that Barrie

transferred, possessed, or used Mizrahi’s name, date of birth, and Social Security number only in

Brooklyn, New Jersey, Delaware, and Ontario, because he did so “during and in relation to” a

bank fraud that took place in the Southern District of New York. Because it is undisputed that

venue here is appropriate for the bank fraud offense charged in Count 7, so too is it for the

section 1028A offense charged in Count 8. We therefore agree with the district court that venue

was properly laid in the Southern District of New York with respect to the aggravated identity



Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006) (quoting Bragdon v.
Abbott, 524 U.S. 624, 645 (1998)), and there is no reason for us to conclude otherwise here.
Indeed, to the contrary, given that the legislative history of the aggravated identity theft statute
indicates that section 1028A’s penalty scheme was modeled on that used in section 924(c), see
Identity Theft Penalty Enhancement Act and the Identity Theft Investigation and Prosecution Act
of 2003: Hearing on H.R. 1731 and H.R. 3693 Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 108th Cong., 2d Sess. (Mar. 23, 2004)
(statement of Timothy Coleman, Counsel to the Assistant Attorney General, Criminal Division,
Department of Justice), available at 2004 WL 576605, we have no reluctance in construing
section 1028A in a manner consistent with how the Supreme Court construed section 924(c) for
venue purposes. Had Congress intended to more narrowly circumscribe the venue requirements
for a prosecution under section 1028A, it could have so provided. It did not, and we decline to
do so here.

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theft count.

                                      CONCLUSION

       For the foregoing reasons and the reasons stated in the companion summary order, we

AFFIRM the district court’s judgment of conviction.




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