United States v. Micheline Eppolito, 701 F. App'x 805

Micheline Eppolito was tried on one count of possession of unauthorized access devices with intent to defraud (18 U.S.C. §1029(a)(3)) and five counts of aggravated identity theft (18 U.S.C. §1028A(a)(1)).
After both sides rested, the district court denied Eppolito’s requested jury instruction that aggravated identity theft required a prior guilty finding on the predicate access-device offense. The court instructed jurors to consider each charge separately.
During deliberations, the jury asked whether it could convict of aggravated identity theft if it acquitted on access device fraud; the court replied that each crime must be considered separately and did not require a predicate conviction.
The jury also asked whether intent to defraud required personal financial gain when the exchange involved drugs; the court answered that “personal financial gain is not required” and left intent as a fact question for the jury.
The jury convicted on all six counts; the district court sentenced Eppolito to 30 months. On appeal, Eppolito challenged the court’s answers and refusal to give her requested instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court’s answer that “personal financial gain is not required” misstates the law on intent to defraud	Eppolito: the jury should have been told intent to defraud requires intent to deceive plus purpose of financial loss or gain	Government: answer was permissible; Eppolito preserved only a generalized objection so review is plain error	Not plain error; circuit law does not require both elements simultaneously, so any error was not clear under existing law
Whether aggravated identity theft conviction is inconsistent with acquittal on predicate access-device fraud	Eppolito: jury must find predicate offense before aggravated identity theft	Government: convictions on both can coexist; court properly instructed to consider crimes separately	Even if error, harmless because jury convicted of the predicate offense; no reversal required
Whether district court erred by refusing Eppolito’s proposed instruction tying the charges	Eppolito: requested instruction was necessary to avoid inconsistent verdicts	Government: district court’s separate-crimes instruction was adequate	No reversible error; harmless because jury found both offenses guilty
Standard of appellate review for unpreserved jury-instruction errors	Eppolito: argues substantive error	Government: unpreserved — plain-error review applies	Court applied plain-error framework and declined to find reversible error

United States v. Rodriguez, 398 F.3d 1291 (11th Cir.) (preservation and plain-error principles)
United States v. Straub, 508 F.3d 1003 (11th Cir.) (what constitutes an adequate objection to preserve an issue)
United States v. Dennis, 786 F.2d 1029 (11th Cir.) (preservation standards)
United States v. Cotton, 535 U.S. 625 (error affecting substantial rights required for appellate correction)
United States v. Klopf, 423 F.3d 1228 (11th Cir.) (definition and discussion of intent to defraud)
United States v. Peden, 556 F.2d 278 (5th Cir.) (formulation of intent to defraud language)
United States v. Olano, 507 U.S. 725 (plain-error review doctrine)
United States v. Robison, 505 F.3d 1208 (11th Cir.) (government’s burden to show jury-charge error was harmless)