United States v. Bechir Delva
922 F.3d 1228
11th Cir.2019Background
- On June 9, 2014, an HSI/IRS undercover operation using a cooperating source recorded activity at a Miramar townhouse where agents observed laptops, money counters, stacks of prepaid debit cards, spreadsheets listing PII (names/DOB/SSNs), and firearms; video and photos corroborated the source.
- After the source left, agents observed Bechir load three shoeboxes and a backpack into a Mercedes and later detained him near the parked car; agents looked through the car windows, saw an ajar box with cards, and conducted a warrantless cursory search before obtaining a later warrant and performing a full search of the car and townhouse.
- Searches yielded hundreds of prepaid debit cards, notebooks/spreadsheets with ~1,696 SSNs (all but 16 legitimate), $29,000 in a safe, money counters, firearms (registered to Kenny), EFIN-related documents, and other indicia of tax-refund identity fraud; Bechir gave post-Miranda oral and written admissions claiming ownership of the fraud proceeds and that guns were kept for protection.
- A federal indictment charged Bechir and Kenny with conspiracy to possess 15+ unauthorized access devices (18 U.S.C. §1029(b)(2)), possession of 15+ unauthorized access devices (§1029(a)(3)), and five counts of aggravated identity theft (§1028A(a)(1)). They were tried jointly; both convicted on all counts.
- On appeal Bechir challenged denial of suppression of car-seized evidence; Kenny challenged sufficiency of the evidence for all convictions; both challenged admission of an expert’s testimony about fraud jargon and the application of a 2-level firearm sentencing enhancement; Kenny also challenged substantive reasonableness of his 84-month sentence.
- The Eleventh Circuit affirmed: it held the warrantless automobile search was justified under the automobile exception (and alternatively inevitable discovery), the evidence supported all convictions (including knowledge for aggravated-identity-theft counts), Detective Sealy’s expert testimony was admissible, and the firearm enhancement and sentences were proper and reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression: warrantless search of Mercedes | Bechir: agents lacked probable cause to search vehicle before a warrant; items were not in plain view | Government: source corroboration, photos/video showed shoeboxes/debit cards/PII; Bechir was seen loading boxes into the car; one box was ajar showing cards | Search valid under automobile exception (probable cause existed); alternatively inevitable discovery (warrant actively pursued) |
| Sufficiency: conspiracy (18 U.S.C. §1029(b)(2)) | Kenny: no evidence he participated or knew fraud processes | Government: video placed Kenny at townhouse with PII/cards/money counter; his statements on video used fraud jargon; his items and fingerprints found among evidence | Evidence sufficient to convict of conspiracy beyond a reasonable doubt |
| Sufficiency: possession of 15+ access devices (§1029(a)(3)) | Kenny: no proof he knowingly possessed 15+ access devices | Government: constructive possession shown by presence, intermingled personal items, fingerprints on PII spreadsheets, and control over premises/boxes | Evidence sufficient to show knowing possession of access devices |
| Sufficiency: aggravated identity theft (§1028A(a)(1)) | Kenny: no proof he knew the PII belonged to real persons | Government: spreadsheets tied to filed fraudulent returns (IRS deposits), fingerprints on victim spreadsheets, large volume of real SSNs, and prior use/testing of identities showed defendants knew IDs were real | Evidence sufficient to prove knowledge that the means of identification belonged to real people |
| Expert testimony (Detective Sealy interpreting jargon/video) | Delvas: Sealy’s testimony improperly interpreted recorded statements and invaded jury’s role | Government: Sealy qualified by training/experience; testimony decoded specialized fraud jargon to assist jury | Admissible under Rule 702; court did not abuse discretion; testimony did not express ultimate guilt opinion |
| Sentencing: firearm enhancement (§2B1.1(b)(15)(B)) | Bechir/Kenny: firearms not used; Kenny lacked possession/knowledge/control of firearms or intent to use for protection | Government: rifle found in room with fraud materials and proceeds; Bechir admitted guns were kept for protection; Kenny purchased firearms; constructive possession and reasonable foreseeability supported enhancement | District court’s factual findings not clearly erroneous; 2-level firearm enhancement applied properly |
| Substantive reasonableness of sentence | Kenny: 84 months excessive given circumstances and §3553(a) factors | Government: guidelines applied, court weighed §3553(a), sentences within guidelines and below statutory maximum | Sentence was reasonable and not an abuse of discretion |
Key Cases Cited
- Carroll v. United States, 267 U.S. 132 (warrantless automobile-search exception)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (trial court gatekeeping for expert testimony)
- Flores-Figueroa v. United States, 556 U.S. 646 (knowledge element for aggravated identity theft)
- United States v. Tamari, 454 F.3d 1259 (probable cause standard for vehicle searches)
- United States v. Baldwin, 774 F.3d 711 (identity-fraud context; proving PII belonged to real people)
- United States v. Holmes, 595 F.3d 1255 (circumstantial proof defendant knew identity belonged to a real person)
- United States v. Villarreal, 613 F.3d 1344 (attributing co-conspirator firearm possession; foreseeability)
- United States v. Jackson, 276 F.3d 1231 (firearm enhancement for mere possession in connection with offense)
- United States v. Holt, 777 F.3d 1234 (law-enforcement expert testimony decoding criminal jargon admissible)