     Case: 15-20098      Document: 00513618051         Page: 1    Date Filed: 08/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-20098                              FILED
                                                                           August 1, 2016

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

MICHELLE H. DAVIS; JAMMIE T. MARTIN,

              Defendants - Appellants




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:13-CR-515


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Michelle H. Davis and Jammie T. Martin were convicted by a jury of
aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1). Davis and
Martin appeal their convictions under Section 1028A(a)(1), arguing that the
district court erred in denying their joint motion for judgment of acquittal.
Martin also appeals the district court’s denial of his motion to substitute
counsel and for a continuance. For the reasons set forth below, we affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-20098
                                        I.
      Davis, Martin, and other co-conspirators entered into a scheme to
defraud the United States Army National Guard’s Recruiting Assistance
Program (“G-RAP”). G-RAP offered monetary bonuses to soldiers for
convincing potential recruits to join the Guard. To apply for a G-RAP bonus, a
soldier had to electronically submit identifying information regarding the
potential recruit to an online portal, including the potential recruit’s full name,
address, date of birth, height, weight, and Social Security number. As a full-
time recruiter for the Guard, Martin was not eligible to participate in G-RAP.
Martin provided Davis and other co-conspirators with identifying information
of potential recruits so that the co-conspirators could apply for G-RAP bonuses
for soldiers that they did not assist in recruiting. In turn, those co-conspirators
would kick back approximately 50% of the bonus amount to Martin.
      Davis and Martin were indicted on eighteen counts, including conspiracy
to defraud the government, bribery, wire fraud, and aggravated identity theft.
The bribery and aggravated identify theft counts included allegations of aiding
and abetting under 18 U.S.C. § 2. Shortly before trial, Martin filed a motion to
substitute counsel and for a continuance, which the government opposed. The
district court denied the motion. The case proceeded to a jury trial. At the close
of the government’s case, Davis and Martin jointly moved for judgment of
acquittal on the counts for aggravated identify theft, arguing that the evidence
was insufficient to show that they “used” identifying information to support
convictions under 18 U.S.C. § 1028A(a)(1). The government responded, in part,
that unlawful possession alone was enough for the jury to convict under Section
1028A(a)(1). The district court denied the joint motion for judgment of
acquittal.
      After the conclusion of evidence, the jury found Davis and Martin guilty
on all counts. Following the verdict, Davis renewed her motion for judgment of
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                                 No. 15-20098
acquittal as to the aggravated identity theft counts. The district court denied
her motion. Martin did not renew his motion for judgment of acquittal.
      Martin appeals the district court’s denial of his motion to substitute
counsel and for a continuance. Davis and Martin appeal the district court’s
denial of their joint motion for judgment of acquittal on the counts for
aggravated identify theft.
                                       II.
      We review the district court’s denial of a motion to substitute counsel for
abuse of discretion. United States v. Jones, 733 F.3d 574, 587 (5th Cir. 2013).
The district court has “wide latitude in balancing the right to counsel of choice
against the needs of fairness and against the demands of its calendar.” United
States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citation omitted).
      We review the district court’s denial of a motion for judgment of acquittal
de novo, “assess[ing] whether a reasonable jury could have properly concluded,
weighing the evidence in a light most deferential to the verdict rendered by the
jury, that all of the elements of the crime charged had been proven beyond a
reasonable doubt.” United States v. Hope, 487 F.3d 224, 227-28 (5th Cir. 2007).
                                      III.
      Martin challenges the district court’s denial of his motion to substitute
counsel and for a continuance. Martin moved to substitute counsel and for a
continuance over a year and a half after being indicted, after six prior trial
continuances (four of which Martin had requested), and only eleven days before
trial. Martin’s motion to substitute counsel was contingent on the granting of
a continuance to allow new counsel time to prepare and because new counsel
had a conflicting trial obligation in another case. The district court properly
considered the substantial costs in allowing substitution of counsel, the
lateness of Martin’s request, and the demands of the district court’s calendar.
See Jones, 733 F.3d at 587-89. All of these factors weighed heavily against
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                                      No. 15-20098
allowing a last-minute substitution of counsel, which would have required a
seventh trial continuance causing a delay of several more months. We conclude
that the district court did not abuse its discretion in denying Martin’s motion
to substitute counsel and for a continuance. See id. (affirming denial of motion
to substitute counsel where substitution would have caused the government to
incur significant costs and led to a continuance of several months). 1
                                            IV.
       Davis and Martin challenge the district court’s denial of their joint
motion for judgment of acquittal as to the counts for aggravated identify theft
under 18 U.S.C. § 1028A(a)(1). 2 Section 1028A(a)(1) provides, “Whoever,
during and in relation to any felony violation enumerated in subsection (c),
knowingly transfers, possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2 years.” “[M]eans
of identification” is defined as “any name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual,”
including a “name, social security number, [or] date of birth.” Id. § 1028(d)(7).
The relevant “felony violation” here was wire fraud, arising from the interstate
wire transfer of fraudulently-obtained G-RAP bonuses.
       The district court’s jury instruction as to these counts, to which neither
Davis nor Martin objected, stated that the jury must find beyond a reasonable
doubt that the defendant “knowingly possessed or used without legal authority
a means of identification of another person.” This instruction allowed the jury
to convict under either the “possession” or “use” prong of Section 1028A(a)(1).


       1 Contrary to Martin’s argument, simply because the district court held a hearing in
Jones does not mean that the district court was required to hold a hearing on Martin’s motion
to substitute counsel and for a continuance.
       2 We assume without deciding that Martin properly preserved this argument for

appeal.
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                                      No. 15-20098
See United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010) (“To establish
a violation of § 1028A(a)(1), the Government must prove the defendant . . .
knowingly transferred, possessed, or used” identifying information (emphasis
added)). In addition, the district court instructed the jury, again without
objection from Davis or Martin, that it could find Davis and Martin guilty of
the underlying crime of aggravated identify theft if they were found to have
aided and abetted that crime.
       On appeal, Davis challenges only the evidence supporting a conviction
under the “use” prong of Section 1028A(a)(1) and makes no argument as to
whether the evidence was sufficient to convict her under the “possession”
prong. 3 Davis concedes that the evidence showed that she received identifying
information from Martin about recruits such as their full names, dates of birth,
and Social Security numbers, and then falsely submitted this identifying
information to apply for G-RAP bonuses. At trial, the victims testified that they
did not give permission for Davis and other co-conspirators to use their
identifying information, and most victims had never met Davis and the other
co-conspirators. The evidence was sufficient for a reasonable jury to find that
Davis knowingly and unlawfully possessed identifying information under
Section 1028A(a)(1).
       Martin argues that he did not unlawfully possess the recruits’ identifying
information because it was his job as a National Guard recruiter to obtain such
information. Martin ignores the evidence showing that he provided the
recruits’ identifying information to Davis and other co-conspirators, who were
not entitled to possess it, for the purpose of sharing in the fraudulent G-RAP



       3 Both Davis and Martin challenge the sufficiency of evidence supporting a finding
that they “used” identifying information under Section 1028A(a)(1). Because we conclude that
the evidence was sufficient for the jury to convict under the “possession” prong, we need not
reach the additional arguments raised by Davis and Martin.
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                                No. 15-20098
bonuses. The evidence was sufficient for a reasonable jury to find that Martin
aided and abetted the knowing and unlawful possession of identifying
information under Section 1028A(a)(1).
      For these reasons, we conclude that the district court did not err in
denying the joint motion for judgment of acquittal.
                                      V.
      Based on the foregoing, we AFFIRM the judgment of the district court.




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