               Case: 17-10081        Date Filed: 04/12/2019      Page: 1 of 21


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-10081
                               ________________________

                         D.C. Docket No. 1:15-cr-20885-DPG-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

STANLEY MOSCOVA,
ROSNY MULLER,

                                                                     Defendants-Appellants.

                               ________________________

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

                                       (April 12, 2019)

Before MARCUS, BLACK, and WALKER, * Circuit Judges.

PER CURIAM:




*
 Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
                Case: 17-10081       Date Filed: 04/12/2019        Page: 2 of 21


       Stanley Moscova and Rosny Muller appeal their jury convictions for

conspiracy to defraud the Internal Revenue Service with respect to fraudulent claims

for tax refunds, and possession of fifteen or more counterfeit or unauthorized access

devices, and Moscova appeals his conviction on three counts of aggravated identity

theft. 1 Moscova and Muller challenge the district court’s refusal to grant an

instruction on immunized witnesses. Moscova also challenges the district court’s

refusal to grant a mistrial and claims that the evidence arrayed against him was

insufficient as to all of the counts. After thorough review, we affirm.

                                                I.

       The essential facts adduced at trial are these. Detective Kenneth Sealy of the

Aventura Police Department began investigating, as a part of an Internal Revenue

Service (IRS) task force, an Internet Protocol (IP) address that was flagged as

possibly being used to file fraudulent tax returns. That IP address was assigned to a

physical address in Aventura, Florida, and the internet service account was in Wolf

Obin’s name. After reviewing the lease for the apartment at that physical address -

- which listed Rosny Muller and Stanley Moscova as occupants and Obin as an

emergency contact -- Sealy obtained a search warrant for the apartment. The warrant




1
 Moscova and Muller were tried and convicted with another individual, Wolf Obin, who also
appealed to this Court. Obin has since dismissed his appeal voluntarily, leaving just the appeals
of Moscova and Muller.
                                                2
                  Case: 17-10081      Date Filed: 04/12/2019      Page: 3 of 21


was executed on May 10, 2013, at 6:00 a.m., at which time, Moscova and Muller

were found in bedroom 1, and Obin was found in bedroom 2. 2

         Vast amounts of personal identifying information (PII) belonging to other

individuals were found in the house, along with a large number of prepaid debit

cards. The PII included names, dates of birth, social security numbers, and other

information. In bedroom 1, the names, dates of birth, social security numbers, and

phone numbers were found for Virginia Plume, Donald Gill, and Ronald Axford.

Moscova’s passport, bank account information, and business cards also were found

in bedroom 1.

         Law enforcement officers found a letter in bedroom 1 from the IRS to an

individual named Marie Guirand that contained a preparer tax identification number

(PTIN) assigned to her (which is used by tax preparation businesses to file multiple

tax returns) and an email address associated with Moscova. Additional information

was discovered, including a sheet of paper showing that an Electronic Filing

Identification Number (EFIN) account had been opened under the name of Marie

Guirand, a friend of Moscova’s and a witness at trial, using her personal information.

The password for that EFIN was “Pass_Moscova23.” Agents also reviewed the

articles of incorporation for a company called “T.A.M. Tax Services LLC,” which

listed Guirand as the registered agent and managing member. Guirand said she gave


2
    Two other individuals were found in the apartment but they were never charged.
                                                 3
                Case: 17-10081       Date Filed: 04/12/2019       Page: 4 of 21


her fingerprints (which are needed to obtain an EFIN) to Moscova and that Moscova

had prepared her taxes in the past. She testified, however, that she did not know what

an EFIN was, never knew that her fingerprints would be used for an EFIN, never

filed tax returns for any other individuals, and never owned a tax preparer’s business.

       Personal identifying information belonging to other people and still more

prepaid debit cards were also found in bedroom 2, the living room, and the kitchen

of the apartment. That bedroom also contained a printout of searches of death

records, including information about deceased individuals -- dates of birth, dates of

death, and the states where the social security cards of the deceased individuals were

issued. PII was also found on Moscova’s Blackberry cell phone. A business credit

card for a company called “Amazin [sic] Marketing LLC” registered to Moscova’s

wife was discovered, and Moscova had signature authority on the account. An

iPhone was seized during the search, and an “extraction report” was performed on

the phone. The iPhone’s associated Apple ID was wolfobin@gmail.com. The

extraction report showed that the iPhone contained the PII of numerous individuals,

as well as pictures containing Marie Guirand’s identification information.

       Detective Sealy interviewed Moscova and Muller. 3 Moscova initially denied

knowing about any illegal activity at his residence, but later admitted to knowing



3
 Detective Sealy tried to record these interviews but was not able to do so because of technical
problems ascribed to the recording equipment.
                                                4
             Case: 17-10081    Date Filed: 04/12/2019   Page: 5 of 21


that illegal tax returns were being filed from that location. Moscova also admitted

to having filed fewer than 20 false tax returns from the apartment himself and

applying for an EFIN. Moscova added that because he received only six or seven

payouts for small sums of money, he stopped filing the false returns because it was

not worth doing so. Muller was also interviewed, and he too admitted to having

filed fewer than 50 fraudulent tax returns with the IRS. Muller explained that he

was largely unsuccessful and denied generating much money from the scheme. Also

found in Muller’s bank statements were multiple tax refund deposits from the U.S.

Treasury.

      Another government witness, Kristy Morgan, testified that the IP address for

Moscova and Muller’s residence was used to fraudulently file tax returns for

Virginia Plume, Donald Gill, and Ronald Axford. At least seven different EFINs

were linked to the same IP address and associated with various corporate entity

names. Six hundred and twenty-eight tax returns were filed using those EFINs,

claiming tax refunds totaling $2,338,528. The IRS actually paid out some $470,670.

Bedroom 1 also contained the name, date of birth, social security number, and

identification number for a “Max Parkyz” inside a Louis Vuitton bag. Parkyz was

listed as the tax preparer of the returns belonging to Plume, Gill, and Axford.

Notably, Gill and Axford both died in 2012. Plume is also deceased, and her

husband testified at trial. Plume’s husband said that Plume did not authorize


                                        5
              Case: 17-10081     Date Filed: 04/12/2019    Page: 6 of 21


Moscova to file a tax return on her behalf and neither of them knew anyone named

Max Parkyz.

      IRS records also established that Lina Marie Cortes Guevara, an acquaintance

of Moscova, applied for an EFIN, but she too denied applying for one. Moscova

prepared Cortes Guevara’s tax returns for her at his business Amazing Marketing in

the past and filed them with the IRS. Moscova apparently wanted to open a retail

clothing company under Cortes Guevara’s name, and although it never opened,

Cortes Guevara gave Moscova her fingerprints for that purpose. In fact, her

fingerprints were actually used as a part of an EFIN application. Cortes Guevara

later received paperwork from the IRS about the EFIN and gave it to Moscova.

      Despite the voluminous information seized and the admissions made by

Moscova and Muller in 2013, Detective Sealy did not arrest either Moscova or

Muller until 2015. In 2016, a federal grand jury sitting in the Southern District of

Florida indicted Moscova, Muller, and Obin in multiple counts: all three were

charged with conspiracy to defraud the IRS with respect to fraudulent claims for tax

refunds, pursuant to 18 U.S.C. § 286 (Count 1), and with possession of 15 or more

counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3)

(Count 2); Obin was indicted in three counts with aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1) (Counts 3–5); Moscova and Muller were

indicted in three additional counts with aggravated identity theft, also in violation of


                                           6
              Case: 17-10081    Date Filed: 04/12/2019    Page: 7 of 21


18 U.S.C. § 1028A(a)(1), referencing the identities of Virginia Plume, Donald Gill,

and Ronald Axford (Counts 6–8), respectively.

      The trial lasted five days. We detail briefly two additional matters relevant to

the appeal. The first one concerns Lina Marie Cortes Guevara, who was called as a

witness by the United States. She testified that, among other things, she was friendly

with Moscova and at some point became romantically involved with him. For our

purposes, the key point made during Cortes Guevara’s testimony concerned a series

of ambiguous assurances given to her by law enforcement officials about whether or

not she would be prosecuted. Cortes Guevara did not initially tell law enforcement

officials about her romantic relationship with Moscova and was worried that she

might “be in trouble.” The following colloquy transpired on cross examination:

      [Defense Counsel]: Prior to you going into the room, were you
      assured that you would not be prosecuted?

      [Cortes Guevara]: Yes.

      [Defense Counsel]: Who told you that you would not be prosecuted
      for anything that you told them?

      [Cortes Guevara]: Nobody.

      [Defense Counsel]: Let me ask it another way. Prior to you going into
      the room, did any of the agents or prosecutors tell you, look, don’t
      worry, we are not looking at you? You’re not going to be in trouble?

      [Cortes Guevara]: Yes.

                                          7
              Case: 17-10081    Date Filed: 04/12/2019    Page: 8 of 21


      [Defense Counsel]: Who told you that?

      [Cortes Guevara]: Basically the three of them.

Cortes Guevara explained that these assurances made her more comfortable.

      Thereafter, Muller asked the district court to give the jury an instruction about

immunized witnesses. The requested charge was drawn from the 11th Circuit

Pattern Jury Instructions. It reads this way: “You must consider some witnesses’

testimony with more caution than others. For example, paid informants, witnesses

who have been promised immunity from prosecution, or witnesses who hope to gain

more favorable treatment in their own cases, may have a reason to make a false

statement in order to strike a good bargain with the Government. So while a witness

of that kind may be entirely truthful when testifying, you should consider that

testimony with more caution than the testimony of other witnesses.” 11th Circuit

Crim. Pattern Jury Instruction S1.1, Testimony of Accomplice, Informer, or Witness

with Immunity (Feb. 2016).

      The government asserted, however, that no witness had been given immunity.

After reviewing the record, the district court found that Cortes Guevara had not been

given any immunity and denied giving the instruction. The district court explained

its ruling this way: “So how does this raise immunity? The testimony of the witness

is clearly that nobody told her that she would not be prosecuted for anything she told

them. Then the question was asked in a rather curious way, ‘Did anybody say look,

                                          8
                Case: 17-10081   Date Filed: 04/12/2019   Page: 9 of 21


don’t worry, we’re not looking at you. You’re not going to be in trouble.’ That is

not a grant of immunity.”

      The judge did, however, give the jury a general instruction on witness

credibility. It read: “You should decide whether you believe what each witness had

to say and how important that testimony was. In making that decision, you may

believe or disbelieve any witness in whole or in part. . . . To decide whether you

believe any witness, I suggest that you ask yourself a few questions. Did the witness

impress you as one who was telling the truth? Did the witness have any particular

reason not to tell the truth? Did the witness have a personal interest in the outcome

of the case?”

      The other key issue at trial arose during the testimony of Marie Guirand,

also called by the United States. During direct examination, the following

exchange occurred:

      [Government]: Did there come a time when you let Mr. Moscova use
      a bank account you had in your name?

      [Guirand]: Yes, sir.

      [Government]: Tell us what happened then.

      [Guirand]: He had deposited money in my account and they closed it
      because they said there was fraud in it.

Moscova objected on hearsay grounds, and during a side bar claimed that the

government had intentionally elicited the testimony regarding fraud, that a curative


                                          9
             Case: 17-10081        Date Filed: 04/12/2019   Page: 10 of 21


instruction would not fix the problem, and, therefore, a mistrial should be granted.

The district court agreed that a piece of the testimony was objectionable but found

that the government did not elicit it intentionally since the question was directed at

something different. The court reserved ruling on the application for a mistrial but

gave the jury a curative instruction. The court explained to the jury that it was proper

to consider Guirand’s testimony that “he had deposited money in my account and

they closed it,” but they must disregard the statement “because they said there was

fraud in it.” “With respect to this account,” the court continued, “there is no evidence

that will regard fraud. The government will not present any evidence that this

account was a result of fraud in any way shape or fashion. So you’re not to consider

that in any way. This is very important. This is crucial. So please, ladies and

gentlemen, do not consider anything with regard to fraud as it relates to this

account.” The judge then asked the jury if he had been clear and each of the jurors

answered affirmatively.

      Later, Moscova renewed his motion for a mistrial based on Guirand’s

offending statement, arguing that the curative instruction could not “unring the bell.”

The district court rejected the application, concluding that the instruction it had given

cured any problem, and observing that many other bank accounts and EFIN numbers

were at issue in the case. All of this counseled against a finding of prejudice so

severe as to warrant a mistrial.


                                            10
             Case: 17-10081     Date Filed: 04/12/2019    Page: 11 of 21


      Moscova rested without presenting any evidence. Muller briefly examined

two government witnesses again. Moscova was found guilty on all counts. Muller

was also found guilty on Counts 1 and 2 but acquitted on Counts 6, 7, and 8.

Thereafter, Moscova was sentenced to a term of 60 months’ imprisonment, 3 years

of supervised release, and joint and severable responsibility to pay mandatory

restitution in the amount of $470,670.          Muller was sentenced to 33 months’

imprisonment, 3 years of supervised release, and the same joint and severable

obligation to pay $470,670 in mandatory restitution.

      This timely appeal followed.

                                          II.

      We begin with the challenge to the district court’s refusal to give the jury an

immunized witness instruction. We review this decision only for abuse of discretion.

United States v. Jeri, 869 F.3d 1247, 1268 (11th Cir. 2017) (citing United States v.

Ndiaye, 434 F.3d 1270, 1280 (11th Cir. 2006)). “So long as the instructions

accurately reflect the law, the trial judge is given wide discretion as to the style and

wording employed in the instructions.” United States v. Starke, 62 F.3d 1374, 1380

(11th Cir. 1995); see also United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir.

2013) (“We will not reverse a defendant’s conviction based on a challenge to the

jury charge unless we are left with a substantial and ineradicable doubt as to whether

the jury was properly guided in its deliberations.” (quotations omitted)). “The


                                          11
             Case: 17-10081     Date Filed: 04/12/2019     Page: 12 of 21


district court’s refusal to incorporate a requested jury instruction will be reversed

only if the proffered instruction was substantially correct, the requested instruction

was not addressed in charges actually given, and failure to give the instruction

seriously impaired the defendant’s ability to present an effective defense.” United

States v. Starrett, 55 F.3d 1525, 1551 (11th Cir. 1995) (quotations omitted).

      For starters, there is precious little in the record to suggest that Cortes Guevara

was promised immunity by prosecutors. The prosecutor unambiguously denied

having offered any immunity to the witness. As for the testimony of Cortes Guevara,

she provided three answers on the subject during cross examination, and each

undermined or contradicted the other. First, she said that she had been “assured”

that she would not be prosecuted. Then, when asked who told her that she would

not be prosecuted, she said that “[n]obody” made this promise. Finally, she claimed

that one of the prosecutors, along with some of the case agents, told her only that

she was not being “look[ed] at,” suggesting at most that she was not a subject or

maybe a target of their investigation. The first answer suggested that some type of

immunity may have been offered orally to Cortes Guevara. Her second response

rebutted the first suggestion, and the final comment did not come close to

establishing that Cortes Guevara was offered use or transactional immunity.

      Not surprisingly, upon reviewing this record, the district court found as a fact

that there was no grant of immunity. The trial court explained its findings this way:


                                          12
               Case: 17-10081       Date Filed: 04/12/2019       Page: 13 of 21


“The testimony of [Cortes Guevara] is clearly that nobody told her that she would

not be prosecuted for anything she told them. Then the question was asked in a

rather curious way, ‘Did anybody say look, don’t worry, we’re not looking at you.

You’re not going to be in trouble.’ That is not a grant of immunity.” We review the

district court’s findings for clear error and we can find none. See United States v.

Calimano, 576 F.2d 637, 639–40 (5th Cir. 1978)4 (holding that the district court

resolved a factual dispute as to whether there was a promise to dismiss an indictment,

and upholding that factual finding because it was not clearly erroneous); United

States v. Weiss, 599 F.2d 730, 736 (5th Cir. 1979) (“We do not find that the court’s

finding of no actual promise not to prosecute [the defendant] on the . . . charges is

clearly erroneous.” (citing Calimano, 576 F.2d at 639–40)). We can discern no basis

to disturb the district court’s finding that Cortes Guevara was not promised

immunity, let alone clear error.

       Moreover, even if we were to assume that the district court clearly erred in its

fact-finding mission and the court abused its discretion in rejecting the instruction,

Moscova and Muller still have failed to show that the missing instruction seriously

impaired their ability to present an effective defense. See Starrett, 55 F.3d at 1551.

The district court did not prevent either defendant from using any “assurances” given



4
 Fifth Circuit decisions issued prior to October 1, 1981 are binding precedent in the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
                                               13
             Case: 17-10081    Date Filed: 04/12/2019   Page: 14 of 21


to Cortes Guevara to impeach her credibility and the defendants were still perfectly

free to attack Cortes Guevara’s credibility through cross examination and in closing

argument. In fact, Moscova vigorously attacked Cortes Guevara’s credibility on

cross-examination, and Muller declined to question her.        Moscova’s attorney

highlighted many inconsistencies in the testimony on cross examination, suggested

on cross that Cortes Guevara had offered new information to the government only

after she had been assured she was not being “look[ed] at,” and during closing

argument, hammered away at the witness’s credibility. Moscova again argued in

closing that Cortes Guevara disclosed more information to agents only after being

assured that she had nothing to worry about.

      Moreover, the evidence against Moscova and Muller was overwhelming, and

no instruction would have changed that fact. Moscova and Muller both admitted to

filing fraudulent tax returns from their apartment, and substantial additional

evidence corroborated their confessions.       They were found in possession of

thousands of pieces of personal identifying information, fraudulent tax returns were

filed from that address, and the evidence strongly suggested that Moscova set up an

EFIN account under Marie Guirand’s name and applied for an EFIN using Cortes

Guevara’s fingerprints and information. An immunity instruction could not have

erased this mountain of evidence. The refusal to give an instruction on witness

immunity was neither erroneous nor did its omission make any difference.


                                        14
             Case: 17-10081     Date Filed: 04/12/2019    Page: 15 of 21


                                          III.

      As for Moscova’s challenge to the district court’s refusal to grant a mistrial

on account of Marie Guirand’s reference to fraud, we review the district court’s

decision only for abuse of discretion. E.g., United States v. Lozano-Hernandez, 89

F.3d 785, 789 (11th Cir. 1996). This decision falls soundly within the broad

discretion of the trial judge because “he or she is in the best position to evaluate the

prejudicial effect of a statement or evidence on the jury.” United States v. Delgado,

321 F.3d 1338, 1346–47 (11th Cir. 2003) (quotation omitted) (alteration adopted).

“And when a district court gives a curative instruction, the reviewing court will

reverse only if the evidence is so highly prejudicial as to be incurable by the trial

court’s admonition.” Id. at 1347 (quotations omitted). “A curative instruction

purges the taint of a prejudicial remark because a jury is presumed to follow jury

instructions.” United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992)

(quotation omitted).

      Moscova claims entitlement to a mistrial because of Marie Guirand’s brief

statement that “[Moscova] had deposited money in my account and [the bank] closed

it because they said there was fraud in it.” Moscova claims that this testimony was

so prejudicial as to warrant a mistrial. We remain unpersuaded.

      For one thing, the comment was very brief, and unsolicited by the prosecution.

Indeed, only one half of one sentence of Guirand’s testimony was allegedly


                                          15
             Case: 17-10081     Date Filed: 04/12/2019    Page: 16 of 21


prejudicial, and the judge instructed the jury to disregard the offending comment. In

the course of a five-day trial, this makes up a tiny piece of the total evidential

foundation presented to the jury. Moreover, improper and prejudicial testimony is

far less likely to mandate a mistrial when there is other substantial evidence of guilt

thereby reducing the likelihood that the offending comment had a substantial impact

upon the verdict of the jury. See United States v. Perez, 30 F.3d 1407, 1411 (11th

Cir. 1994). In this case, the inculpatory evidence was substantial, further reducing

the danger of prejudice.

      The curative instruction given by the judge was clear and immediately

acknowledged by the jurors. The district court was careful and deliberate, parsing

out what parts of the statement the jury should not consider and precisely why that

testimony should be disregarded. The district court made clear that there was “no

evidence as it relates to fraud in this account,” and that the bank account Guirand

mentioned was not a part of the government’s case. The jurors all affirmatively

responded that they understood and would follow the instruction.

                                         IV.

      Finally, we review the sufficiency of the evidence as to Moscova’s conviction

on all counts.    “We review de novo whether sufficient evidence supports a

conviction, drawing all reasonable factual inferences from the evidence in favor of

the verdict.” United States v. Cruickshank, 837 F.3d 1182, 1188 (11th Cir. 2016)


                                          16
             Case: 17-10081    Date Filed: 04/12/2019   Page: 17 of 21


(citing United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009)). “Evidence is

sufficient if a reasonable trier of fact could have found that it established guilt

beyond a reasonable doubt.” Id. (citing Beckles, 565 F.3d at 840).

      Title 18 U.S.C. § 286 criminalizes entering into an illegal agreement,

combination, or conspiracy to defraud the United States by “obtaining or aiding to

obtain the payment or allowance of any false, fictitious or fraudulent claim.” 18

U.S.C. § 286. The statute covers an illegal agreement to submit false or fraudulent

claims to government departments or agencies. See United States v. Gupta, 463 F.3d

1182, 1194 (11th Cir. 2006) (false claims submitted to Medicare); United States v.

Suba, 132 F.3d 662, 672–73 (11th Cir. 1998) (same). To sustain a conspiracy

conviction under § 286, the government must prove beyond a reasonable doubt: (1)

the existence of an agreement to accomplish a common and unlawful objective; (2)

Moscova’s knowing and voluntary participation in the conspiracy; and (3) evidence

that Moscova, or some other conspirator, committed an overt act in the course of and

in furtherance of the charged conspiracy. United States v. Pierre, 825 F.3d 1183,

1193 (11th Cir. 2016). Moreover, direct evidence need not be presented in order to

establish a conspiracy. Suba, 132 F.3d at 672 (citing United States v. Khoury, 901

F.2d 948, 962 (11th Cir. 1990)).

      The evidence, when taken in a light most favorable to the jury’s verdict,

overwhelmingly establishes Moscova’s guilt. In the first place, the existence of an


                                        17
             Case: 17-10081     Date Filed: 04/12/2019   Page: 18 of 21


unlawful agreement was proven. The fraudulent tax returns were traced back to the

IP address for the apartment where Moscova, Muller, and Obin lived, the same

apartment that contained vast amounts of PII. It strains credulity to suggest that

these individuals -- who lived amongst piles of PII every day -- did not know about

the scheme, especially after each admitted to filing false and fraudulent tax returns.

Moscova specifically confessed to filing false tax returns with the IRS, as did Muller

and Obin.    Moscova’s confession, along with the others, established that he

knowingly and voluntarily participated in the conspiracy.        The evidence also

established that Moscova applied for an EFIN under his own name, and that

Moscova obtained an EFIN under Marie Guirand’s name without her knowledge.

      The evidence also amply supports Moscova’s convictions under 18 U.S.C. §

1029(a)(3). It is illegal to possess 15 or more counterfeit or unauthorized access

devices knowingly and with intent to defraud, if the act affects interstate commerce.

18 U.S.C. § 1029(a)(3). Moscova, at the very least, constructively possessed more

than 15 unauthorized access devices. “A person constructively possesses an item

when he has knowledge of the thing possessed coupled with the ability to maintain

control over it or reduce it to his physical possession, even though he does not have

actual personal dominion. Constructive possession also occurs when a person

exercises ownership, dominion, or control over the contraband itself or dominion or

control over the premises or the vehicle in which the contraband is concealed.”


                                         18
             Case: 17-10081     Date Filed: 04/12/2019   Page: 19 of 21


United States v. Baldwin, 774 F.3d 711, 722 (11th Cir. 2014) (quotations and

alteration omitted) (finding constructive possession sufficient to uphold a conviction

under 18 U.S.C. § 1029(a)(3) violation). A jury could easily have inferred that

Moscova had control over the common areas of the apartment and, more specifically,

over bedroom 1. Moscova’s name was on the lease of the apartment, and he was

found in bedroom 1 during the search. Moreover, personal identifying information

was found in bedroom 1, mixed with Moscova’s own personal documents including

his passport. Moscova had control over the apartment that he rented and the room

where he stayed. Still further, incriminating data was found on Moscova’s cell

phone, a device he plainly controlled.

       The evidence also established that Moscova possessed this information with

the intent to defraud. Again, he admitted to having filed many false tax returns, and

a reasonable jury could readily infer that he intended to use the vast amounts of PII

in his residence to defraud the IRS. Furthermore, the information concerning Plume,

Gill, and Axford was found in bedroom 1, and fraudulent tax returns were filed in

their names. These tax returns were filed by “Max Parkyz,” about whom information

was found in a bag in bedroom 1. Again, a jury could reasonably infer that Parkyz

was Moscova’s alias. In short, Moscova’s own admission, coupled with the physical

evidence found in his apartment, could lead a reasonable jury to find him guilty of

violating § 1029(a)(3) beyond a reasonable doubt.


                                         19
             Case: 17-10081     Date Filed: 04/12/2019    Page: 20 of 21


      There is more than sufficient evidence to sustain Moscova’s conviction on the

aggravated identity theft charges as well. It is a federal crime to “knowingly

transfer[], possess[], or use[], without lawful authority, a means of identification of

another person” in relation to certain felonies, including crimes under 18 U.S.C. §

1029(a)(3). 18 U.S.C. § 1028A(a)(1), (c)(4). “Means of identification” can include

a name, social security number, or date of birth. Id. § 1028(d)(7). The government

was required to establish that (1) Moscova knowingly transferred, possessed, or used

another person’s means of identification, (2) without lawful authority, (3) during and

in relation to a felony violation of 18 U.S.C. § 1029(a)(3) (Count 2). See United

States v. Zitron, 810 F.3d 1253, 1260 (11th Cir. 2016).

      Here, personal information for each of the individual victims named in Counts

6–8 -- Plume, Axford, and Gill -- was found in Moscova’s bedroom. The tax returns

for these individuals were filed from the IP address for Moscova’s residence. The

names of and information about these victims were found among the death records

recovered from his apartment. The fraudulent returns were all filed by “Max

Parkyz,” but that appears to merely be a cover used by Moscova.              Parkyz’s

information, including his name, social security number, and date of birth were all

found in Moscova’s room as well. Again, the evidence was more than sufficient to

sustain the jury’s verdict.

      Accordingly, we affirm the convictions of Moscova and Muller.


                                          20
    Case: 17-10081   Date Filed: 04/12/2019   Page: 21 of 21


AFFIRMED.




                              21
