UNITED STATES v. CASELLAS (2021)

United States Court of Appeals, Ninth Circuit.2021-01-19No. No. 19-50198, No. 19-50209

Summary · law.co

Holding. The court affirmed the convictions of both defendants, rejecting challenges to the trial continuances as reasonable under the circumstances, finding the jury instructions on the conspiracy's object sufficiently conveyed the necessary elements, and rejecting the double jeopardy claim for want of controlling authority.

Tomari Casellas and Richard Durden were convicted of conspiracy to commit access device fraud and aggravated identity theft. Durden received additional convictions for access device fraud itself. On appeal, Casellas challenged the trial's delay as a violation of his speedy trial rights, arguing that continuances granted for a codefendant's preparation were pretextual. The court rejected this argument, finding that the continuances were reasonably necessary to preserve the possibility of a joint trial in a conspiracy case, particularly since the codefendant needed time to review substantial discovery materials. Durden challenged the jury instructions on the elements of access device fraud and raised a double jeopardy claim regarding his identity theft convictions. The appellate court found the jury instructions adequate when read as a whole and rejected the double jeopardy argument for lack of controlling legal authority supporting Durden's position.

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Key issues

Whether continuances granted to accommodate a codefendant's trial preparation violate the Speedy Trial Act
Whether jury instructions on the elements of access device fraud were adequate when provided in instructions addressing a codefendant's charges
Whether multiple identity theft convictions violate double jeopardy protections
Whether sufficient evidence supported the identity theft convictions based on the defendant's knowledge that he was using another's personal information

Procedural posture

Appeals from convictions and sentences in the United States District Court for conspiracy to commit access device fraud and aggravated identity theft.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Tomari A. Casellas and Richard D. Durden were convicted and sentenced for their involvement in a fraudulent identification scheme. Casellas was convicted of conspiracy to commit access device fraud and of aggravated identify theft based on that conspiracy. 18 U.S.C. §§ 1029(b)(2), 1028A. Durden was also convicted of those offenses, along with two counts of access device fraud, 18 U.S.C. § 1029(a)(2), and two additional counts of aggravated identify theft. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court did not violate Casellass speedy trial rights. Although the Speedy Trial Act generally requires a defendant to be tried within seventy days of his initial appearance or indictment, 18 U.S.C. § 3161(c)(1), it excludes from this period reasonable continuances granted to a codefendant, United States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010) (discussing 18 U.S.C. § 3161(h)(6)). The reasonableness inquiry turns on the totality of the circumstances, including whether a continuance is needed to preserve the possibility of a joint trial. Id. Such was the case here. In stipulating to the challenged continuances, a codefendant stated that her counsel needed more time to familiarize herself with recent and voluminous discovery. Unless the court wanted that party to proceed unprepared, it had two choices: sever or continue the trials. Since severances are disfavored in conspiracy cases, United States v. Jenkins, 633 F.3d 788, 807 (9th Cir. 2011), and no party requested one, the court reasonably decided to grant the continuances.

Casellas protests that the delay was really aimed at allowing the codefendant to avoid a joint trial. He likens his case to United States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999), where we found unreasonable a continuance premised on allowing a codefendant to complete plea negotiations. Here, however, the delay allowed the codefendant to prepare for trial in case “a pretrial resolution does not occur.” It does not matter that she wound up pleading guilty; the continuances preserved the “possibility” of joint proceedings. United States v. Messer, 197 F.3d 330, 338 (9th Cir. 1999) (emphasis added); see also Lewis, 611 F.3d at 1178. Moreover, the court had released Casellas on bond well before granting the opposed continuances, which further supports finding that they were reasonable. See, e.g., Messer, 197 F.3d at 340.

2. The district court properly instructed the jury on the elements of the conspiracys object, access device fraud. Because Casellas jointly proposed the instructions, he waived challenging them on appeal. See United States v. Cain, 130 F.3d 381, 383-84 (9th Cir. 1997); see also United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991). And, in any event, the court did provide the jury with access device frauds elements, albeit in its instructions concerning Durdens charges for that crime. The placement of an instruction elsewhere does not render the instructions erroneous, so long as the jury would have understood them on the whole. See United States v. Moran, 493 F.3d 1002, 1009 (9th Cir. 2007); see also 9th Cir. Model Crim. Jury Instr. 8.20 cmt. (2019) (directing courts to provide the jury with the elements of the conspiracys object “if other jury instructions do not”). Taken together, the instructions here apprised the jury of the necessary information.

3. Sufficient evidence supported Durdens convictions for aggravated identify theft, which requires the defendant to have known that the fraudulent “means of identification at issue belonged to another person.” Flores-Figueroa v. United States, 556 U.S. 646, 657, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (discussing 18 U.S.C. § 1028A). When Durden applied for and opened a jewelry-store credit card under a victims name, he supplied the store with the victims social security number, address, birthdate, and employment information. A rational juror could have inferred that Durden would not have applied for and expected approval of his application unless the information he provided was real. In addition, several recordings of Durdens phone calls with Casellas indicate that Durden possessed the requisite knowledge of his victims. For example, he mentioned that there were “no victims” when he applied for another card on a separate occasion, as “they cancelled the card before it got to the dude.”

4. Finally, we reject Durdens double jeopardy challenge to his convictions for aggravated identify theft. 18 U.S.C. § 1028A punishes the use of anothers means of identification “during and in relation to” certain predicate offenses. Arguing that the evidence tied him to only two uses of someone elses identification, Durden asserts that one of his three § 1028A convictions was multiplicitous, even if there were three distinct predicate offenses. He cites no controlling authority in support of this argument, however. Thus, even assuming that the district court erred, it did not do so plainly.

See United States v. Gonzalez Becerra, 784 F.3d 514, 518 (9th Cir. 2015).

AFFIRMED.

FOOTNOTES

. Because the parties are familiar with the facts of this case, we do not discuss them at length here.

. Because we affirm Durdens § 1028A convictions on plain-error grounds, we need not address whether, as the government argues, the trial evidence established that he had used anothers means of identification on other occasions.