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United States v. Delva

United States Court of Appeals, Eleventh Circuit

April 29, 2019

BECHIR DELVA, DAN KENNY DELVA, Defendants-Appellants.

          Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cr-60209-WPD-2

          Before MARCUS, GRANT and HULL, Circuit Judges.


         Defendants Bechir Delva and Dan "Kenny" Delva are brothers who were convicted of seven crimes arising out of their identity theft and tax fraud operations. After a joint jury trial, the Delvas appeal their convictions and sentences for conspiracy to possess 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

         On appeal, Bechir and Kenny raise separate and joint challenges to their convictions and sentences. First, Bechir attacks his convictions on the ground that the district court erred in denying his motion to suppress the evidence found during a warrantless search of his vehicle. Second, Kenny challenges the sufficiency of the evidence supporting each of his convictions. Together, Bechir and Kenny argue that: (1) the district court erred by admitting at trial the government's expert testimony as to the terminology and jargon used in identity theft and tax fraud crimes; and (2) the district court's errors singularly and cumulatively violated their constitutional rights to a fair trial and due process of law.

         As to their sentences, Bechir and Kenny argue that the district court erred in applying an enhancement for possession of a firearm in connection with their offenses. Lastly, Kenny contends that his total 84-month sentence is substantively unreasonable.

         After careful review of the record and the parties' briefs, and with the benefit of oral argument, we affirm both Delvas' convictions and sentences.


         We describe the government's June 9, 2014, undercover investigation into the Delvas' fraud operations, including the federal agents' search of Bechir's vehicle and the townhouse where the fraud was conducted. This investigation and the evidence seized from the car and townhouse formed the basis of the federal prosecution of this case. Our description is based on the evidence presented at trial, as well as testimony during a pre-trial suppression hearing.

         A. Undercover Operation

         A cooperating source, McKenzie Francois, told federal agents that Bechir and Kenny Delva were conducting identity theft and tax fraud operations out of a townhouse located within a gated community complex in Miramar, Florida. Acting on this information, the Agents set up an undercover operation with Francois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin Deslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security Investigations and Special Agent Brad Cohen from the Internal Revenue Service ("IRS") met with Francois at a staging location. The Agents equipped Francois with a video and audio recording device in a backpack and followed him to the townhouse in question. One Agent parked his car with a view of the townhouse's front door, while other Agents parked where they could observe the building's rear.

         At approximately 12:05 p.m., Francois entered the townhouse and stayed for about an hour. Bechir, Kenny, and others were present in the townhouse at that time. While inside, Francois took several pictures with his cell phone and texted them to the Agents. The pictures showed: (1) individuals sitting on a couch using laptops; (2) a money counter; (3) a white shoebox lid flipped upside down with numerous debit cards and papers containing personal identifying information inside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall. Generally, the personal identifying information included individuals' names, dates of birth, and Social Security numbers, which we collectively refer to as "PII."

         Consistent with these photographs, the video recording covertly captured by Francois depicted papers listing PII and debit cards visible on the ottoman and a rifle leaning against a wall. Kenny and Bechir could be heard speaking on the recording. Bechir was sitting on a couch facing the ottoman where the debit cards and papers were located. At one point on the video, Kenny is holding papers and a laptop power cord. The video also showed that, soon after Francois arrived, the individuals discovered a government Agent surveilling the townhouse. This prompted a discussion about whether the Agent could "pick up" on who was "sending things" over the internet. They also talked about packing up, "cleaning up" the townhouse, and leaving to "work" at a hotel. Kenny, in particular, talked about leaving the townhouse and going to a hotel where it would be safer to work. Around this time, someone else accused Kenny of looking scared, and Bechir referenced someone going to jail.

         B. Agents Debrief Francois

         After leaving the townhouse, Francois met with the Agents again and confirmed that individuals in the townhouse were conducting fraud activities. Francois also told the Agents that the individuals noticed a law enforcement officer outside the townhouse and were worried that they were being surveilled. As such, they talked about "cleaning" the townhouse and getting rid of any illicit materials as soon as possible. The Agents then did the following: Agent Eustice returned to the gated community to watch the townhouse; Agent Deslauriers took the video equipment back to his office for review; and Agent Goodwin went to secure a federal search warrant.

         C. Agents Initially Search the Mercedes

         At about 2:00 p.m., Agent Eustice returned to the townhouse and saw several vehicles lined up in front of the residence. Agent Eustice first saw an unidentified male put a bag into the back of a white Camry and drive away from the townhouse. Agent Eustice tried to follow the car, but lost it at the front gate. Agent Eustice then saw another male, later identified as Bechir, walk down a hallway to the townhouse door. Bechir left the townhouse carrying three white shoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle. Bechir then departed the townhouse (Unit 105, Building 2492) and drove along the main Centergate Drive. After driving around a curve in the road, Bechir got off that main drag and turned into one of the other apartment communities within the complex. Bechir parked and began walking away from the car.

         By this time, two other Agents had joined Agent Eustice at the scene, and they approached Bechir together. When asked, Bechir denied owning the Mercedes and refused to provide the officers with any identification. The Agents then handcuffed Bechir and eventually placed him in the back of a police car. Looking in the windows of the parked Mercedes, Agent Eustice saw the three shoeboxes that Bechir had loaded into the car. He noticed that one box was ajar and appeared to have credit cards inside.

         At approximately 4:15 p.m., Agent Deslauriers returned to the scene after watching the undercover video. Although part of the recorded conversation was in Haitian Creole, which Agent Deslauriers did not understand, he noticed a "heightened sense of urgency at the end" of the video, which corroborated what Francois had told them.

         When Agent Deslauriers arrived, Agent Eustice fully briefed him on what had transpired with Bechir. Agent Deslauriers recognized Bechir from the undercover video. When he looked in the back of the Mercedes, he also saw the boxes. The boxes looked similar to the box lid Agent Deslauriers saw in Francois's pictures and on the undercover video. Additionally, one of the boxes was slightly ajar, and Agent Deslauriers could see what looked like credit cards inside.

         Based on the video, the pictures, and the information provided by Francois, Agent Deslauriers believed there was PII and fraudulent credit cards in the box. Agent Deslauriers then opened the Mercedes door, did a cursory search of the boxes, and found stacks of credit cards and papers listing PII. He took a few photographs and then replaced everything.

         D. Agents Search the Mercedes and Townhouse

         Meanwhile, Agent Goodwin secured a search warrant and returned to the townhouse around 8:30 p.m. The Agents then conducted a thorough search of the Mercedes and the townhouse. Within the three boxes in the Mercedes, the Agents found (1) hundreds of prepaid debit cards, (2) Bechir's T-Mobile bill, (3) a bill addressed to Kenny, and (4) scores of documents containing PII, including notebooks, handwritten lists, and Excel spreadsheets. The documents with the PII listed the names, birthdates, and Social Security numbers of hundreds of individuals. In the black backpack, the Agents found a laptop computer, as well as additional papers with PII.

          In the townhouse, the Agents discovered a safe with $29, 000 inside, two money counters, and even more credit cards and more documents listing PII. The Agents also found (1) tax guidelines from Republic Bank and Trust Company, (2) documents listing an electronic filing identification number ("EFIN") for Gustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a Playhouse Gentleman's Club VIP card in Bechir's name, and (5) a letter to Kenny from the IRS. The Agents also found two rifles and a handgun, with multiple corresponding magazines and rounds of ammunition, and receipts showing that Kenny had purchased the firearms.

         In the townhouse garage, Agents found Bechir's Haitian passport, Kenny's Audi service contract, Kenny's insurance records, documents related to Gustavo Cruz, a record showing a parcel was shipped to the IRS, and instructions for obtaining an EFIN.

         E. Bechir's Interview and Written Statement

         After searching the townhouse, the Agents apprised Bechir of his Miranda rights[1] and interviewed him. Bechir told the Agents that all of the personal identifying information (the PII) was his. Bechir had obtained the information (the PII), which he called "fos" and "infos," from an online database, using a login and password. Bechir told the Agents that he used the personal identifying information (the PII) to file fraudulent tax returns online using an EFIN that he bought on the street for $5, 000. Bechir would receive the tax refunds on debit cards, which he used at ATMs to withdraw cash. Bechir admitted that the money the Agents found in the townhouse was from tax fraud. He also said the Mercedes belonged to him and Kenny had an Audi in the garage. When asked about the firearms, Bechir told the Agents that the guns belonged to Kenny. Bechir explained that the firearms were in the townhouse for protection.

         In his signed written statement, Bechir also admitted to conducting fraud activities and keeping firearms at the townhouse for protection from getting robbed:

I'm Bechir Delva, [and] freely and willing admit that the money I store in the safe and all the fraud activities here at 2492 Centergate Drive, Miramar, Florida, Unit 105, are mine. The money in the safe is from fraud and [I] have conducted fraud here. I had legal guns here, rifles and handguns. I kept them here for protection from getting robbed.

         The Agents did not arrest or question Kenny on June 9, 2014, as he had left the townhouse by the time they searched it.


         A. Indictment and Not Guilty Pleas

         In August 2015, a federal grand jury charged both Bechir and Kenny with: (1) one count of conspiracy to possess 15 or more unauthorized access devices, i.e., Social Security numbers and debit cards issued to other people, in violation of 18 U.S.C. § 1029(b)(2) ("Count 1"); (2) one count of possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) ("Count 2"); and (3) five counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) ("Counts 3-7"). The aggravated identity theft counts were tied to specific real individuals whose PII was recovered from the spreadsheets in the Mercedes, namely, L.C. (Count 3), J.F. (Count 4), C.L. (Count 5), D.S. (Count 6), and G.S. (Count 7). The Delvas pleaded not guilty, and the case proceeded to a joint trial.

         B. Bechir's Suppression Motion

         Before trial, Bechir filed a motion to suppress the physical evidence seized from his Mercedes.[2] Bechir's motion claimed that he was illegally detained on June 9 and that the initial warrantless search of his vehicle was illegal. The district court conducted an evidentiary hearing, during which Agents Deslauriers and Eustice testified for the government. They described the June 9, 2014, events as detailed above. Bechir did not testify at the hearing.

         At the end of the hearing, the district court denied Bechir's suppression motion. In its written order, the district court first found that one of the boxes in the Mercedes was ajar, revealing credit cards inside. Next, the court determined that the fact that the boxes and credit cards were in plain view, combined with information Francois provided to the Agents, created sufficient probable cause to justify searching the vehicle. Therefore, based on the automobile exception announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925), the district court determined that the Agents had authorization to search the Mercedes and the boxes at the time when they first detained Bechir. The district court stressed that they did not search the vehicle until after Agent Deslauriers had watched the undercover video, which the court said clearly depicted fraud. Alternatively, the district court concluded that the inevitable discovery doctrine justified the search because the Agents secured a search warrant later that day.


         In February 2016, the case proceeded to a joint trial, which lasted five days. As Kenny challenges his convictions based on the sufficiency of the evidence, and both Delvas argue that the introduction of certain expert testimony was improper, we will review more of the evidence presented at trial.

         A. The Government's Evidence

         During the trial, the government presented testimony from 18 witnesses, including Agents Deslauriers, Eustice, Goodwin, and Cohen. The Agents described the events on June 9, 2014, as we have recounted them above, including testifying as to Bechir's post-Miranda interview statements and written confession. The government also introduced the physical evidence the Agents obtained on June 9, that is, Francois's undercover video and pictures, as well as the evidence Agents seized from Bechir's Mercedes and the townhouse. In particular, the government introduced two Excel spreadsheets that were found in Bechir's car, which listed the names, birthdates, and Social Security numbers of the five victims specifically named in Counts 3-7 of the indictment. Agent Deslauriers also explained subsequent steps the Agents took to investigate the Delvas' fraud scheme, such as sending some of the seized evidence to a forensic lab for fingerprint analysis.

         Fingerprint specialist Genius Johnson then testified that he compared Bechir's and Kenny's fingerprints to those he recovered from two documents containing PII that were seized in the case. On one document, Johnson found one latent fingerprint left by Bechir, and on another spreadsheet, Johnson found four latent fingerprints left by Kenny. Johnson testified that it was impossible that someone other than Bechir and Kenny left those fingerprints on the papers.

         The government also called Detective Kenneth Sealy as an expert witness in identity theft and tax fraud and the terminology and jargon used in this type of crime. Sealy is a Detective with the Aventura Police Department who had been assigned to the IRS Identity Theft Task Force for four years. Detective Sealy had received training on identity theft crimes from several different institutions, including from the IRS, U.S. Secret Service, Citibank, Homeland Security, Discover Card, Broward Community College, and the Broward College Police Academy. Detective Sealy's training with the IRS was specifically focused on the ways in which fraudulent tax returns are filed with stolen identities to obtain refunds and how to investigate those types of crimes. Sealy explained that the term "stolen identity refund fraud" referred to the use of stolen identities-individuals' names, dates of birth, and Social Security numbers-to file fraudulent income tax returns with the IRS to obtain a refund.

         As to experience, Detective Sealy had conducted more than 75 fraud investigations, including in 50 tax fraud cases. Detective Sealy had also listened in on over 30 jail calls placed by defendants charged with "stolen identity refund fraud" and debriefed over 20 such cooperating defendants. From the phone calls and debriefs, Detective Sealy learned the methods by which "stolen identity refund fraud" is conducted and the terminology used in that type of fraud. Detective Sealy explained that, in the majority of the tax fraud cases he investigated, the criminals used coded terminology. As part of his investigations, Detective Sealy also had worked undercover to purchase, or arrange for the purchase of, PII from individuals engaged in fraud. Sealy explained that PII usually refers to people's names, dates of birth, and Social Security numbers. Based on his expertise, Detective Sealy had taught fraud classes to other police departments and colleges and had previously testified in a case in federal court as an expert in fraud investigations and terminology.

         Detective Sealy testified that criminals committing "stolen identity refund fraud" obtain PII from multiple sources, including online or from people who work at schools, banks, hospitals, or at other places where they have access to such information. In reviewing the documents seized in this case, Detective Sealy confirmed that they appeared to be medical billing sheets, Excel spreadsheets listing PII, and hospital patient printouts, which were consistent with the type of records he had found in other "stolen identity refund fraud" cases. On the Excel spreadsheets, Detective Sealy noted that someone had handwritten checkmarks, Xs, and debit card account numbers alongside the specific PII entries. He explained that the handwritten notations indicated whether the participant had been successful or not in using the listed individual's PII in the fraud scheme.

         Next, Detective Sealy generally described how "stolen identity refund fraud" works. He explained that once the fraudsters obtain the PII, they input that information into an online tax preparation website and then report fictitious earnings, as if they were preparing real tax returns. When filing the fraudulent tax returns, the criminals elect to have the tax refund deposited onto prepaid debit cards, which are linked to online checking accounts. These fraudulent tax returns are typically filed in volume to increase the likelihood of successfully obtaining refunds.

         As to terminology, Detective Sealy testified that "fos" is a common slang term that identity fraudsters use in South Florida, and it means "info" or "information," like an individual's name, date of birth, and Social Security number. The government then played portions of the undercover video and asked Detective Sealy follow-up questions. For instance, after reviewing when an individual in the townhouse said, "[w]hen you work over and over, and you send everything at once, and you're done, that's better," Detective Sealy testified that "work" in this context typically means either opening credit card accounts or filing fraudulent tax returns. And when individuals in the townhouse mentioned "PD," such as "My PDs always go," Detective Sealy testified that PD typically refers to personal drops-that is, the actual deposit of tax refunds from the U.S. Treasury to the account associated with a debit card.

         Detective Sealy also explained that when an individual said, "I never check the confirmation," the term "confirmation" usually refers to checking the status of a tax refund on the IRS website. More still, after another individual said on the video, "I'm going to have these chicks buy me some plastic," Detective Sealy testified that "plastic" refers to debit cards or credit cards. He said that criminals involved in this type of fraud commonly have third parties purchase the debit cards for them in order for the fraudsters themselves to avoid store surveillance cameras.

         The government then played a video clip where the individuals were discussing leaving the townhouse and going to a hotel because they were concerned that law enforcement was monitoring them. Detective Sealy confirmed that, in his experience, individuals committing "stolen identity refund fraud" often work out of hotels because using a hotel's wi-fi internet makes it more difficult for law enforcement to track the fraud.

         Next, Yamile Colt, a witness from the Social Security Administration, testified. Colt had examined a list of approximately 1, 696 Social Security numbers, which were all found within the documentary evidence seized from the Mercedes and townhouse. Colt determined that all but 16 of ...

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