            Case: 16-10386   Date Filed: 02/03/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10386
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:15-cr-00018-MW-CAS-2

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

TANZANIA MILLER,

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 3, 2017)



Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Tanzania Miller appeals her conviction for one count of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Miller contends the trial

court erred by denying her request for a special jury instruction requiring the

government to prove that she acquired the victims’ identities without their consent.

She asserts the court’s refusal to administer her proposed instruction denied her a

cognizable defense because she presented substantial evidence showing she

obtained the identification information with the consent of the parties. Upon

review 1 of the record and consideration of the parties’ briefs, we affirm.

                                        I. DISCUSSION

       To convict a defendant for aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1), the government must prove beyond a reasonable doubt that during

and in relation to an enumerated felony, the defendant “knowingly transfer[ed],

possesse[d], or use[d], without lawful authority, a means of identification of

another person shall.” 18 U.S.C. § 1028A(a)(1). Miller asked the court to instruct

the jury that to conclude she acted “without lawful authority,” it must find either

that “the means of identification was used without the person’s consent” or,

alternatively, that “the defendant knew the alleged victim did not give the

defendant permission to use his name.”



       1
         We review a district court’s refusal to give a requested jury instruction for abuse of
discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005).
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      Without more, Miller’s instructions fail accurately to state the law. We

recently decided, consistent with other Circuits that have addressed the issue, that

consent is not the sole means of showing the defendant lacked lawful authority

under 18 U.S.C. § 1028A(a)(1); this element may also be satisfied by

demonstrating the defendant used the means of identification for an unlawful

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

government established the ‘without lawful authority’ element in two ways—with

testimony from Jordan that Zitron did not have permission to use his identity, and

with evidence that Zitron used Jordan's means of identification for an unlawful

purpose.”); accord United State v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013). Since

Miller’s proposed instruction incorrectly stated the law, the district court did not

abuse its discretion in refusing to give it. See United States v. Yeager, 331 F.3d

1216, 1222–23 (11th Cir. 2003) (“The failure of a district court to give an

appropriate instruction is reversible error where the requested instruction (1) was

correct; (2) was not substantially covered by the charge actually given; and (3)

dealt with some point in the trial so important that failure to give the requested

instruction seriously impaired the defendant's ability to conduct his defense.”

(quotation omitted)).




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                                 II. CONCLUSION

      Miller’s reading of § 1028A(a)(1) is inconsistent with our interpretation of

the statute in Zitron. Accordingly, the district court did not abuse its discretion in

declining to give her jury instruction.

      AFFIRMED.




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