United States Court of Appeals
For the First Circuit
No. 09-1896
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS KASENGE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Jane Elizabeth Lee for appellant.
Renée Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
November 2, 2011
HOWARD, Circuit Judge. Defendant-appellant Thomas
Kasenge challenges his conviction for aiding and abetting
aggravated identity theft, 18 U.S.C. §§ 2, 1028A. He asserts that
no identity theft was committed because his identification
documents were used with his permission. He also argues that the
prosecutor engaged in misconduct during closing argument to the
jury. After careful consideration, we affirm.
I. Background
Thomas Kasenge, a foreign national and lawful permanent
resident of the United States, shared a home in Westbrook, Maine
with several others, including Ronald and Emily Serunjogi, Pius
Mayanja and, for a brief period in early 2008, Anita Mwebe.
Mayanja's visa had expired. In early 2007, unable to
obtain work due to his immigration status, he turned to Kasenge for
help, seeking food, clothes, and money. Kasenge instead offered,
for a nominal fee, the use of his driver's license and social
security card to assist Mayanja in securing a job. The scheme was
successful, and at various times in 2007 and early 2008, Mayanja
worked at a McDonald's restaurant and a Hannaford supermarket under
the identity of Thomas Kasenge. Ronald Serunjogi and Mwebe soon
learned of the arrangement.
Kasenge and Mwebe had become intimately involved shortly
after Mwebe's arrival in January 2008. Their dalliance ended that
March when Kasenge traveled to London to visit his fiancée and
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child and Mwebe moved to Chicago to continue her ongoing job
search. Communication between them ceased, and within a matter of
months, Mwebe had married another man and relocated to North
Carolina.
A few weeks after Mwebe's departure, Mayanja was
arrested. He was charged, in part, with aggravated identity theft,
18 U.S.C. § 1028A, for his fraudulent use of Kasenge's identifying
documents. During the ensuing investigation, Mayanja initially
lied to the authorities, claiming that he had never used Kasenge's
license or social security card. Mayanja and Ronald Serunjogi also
denied that Serunjogi had known about or participated in any of the
fraudulent activity. They later recanted, admitting that Mayanja
had used the documents, that Kasenge was complicit in the scheme,
and that Serunjogi had been aware of the agreement from the outset.
Kasenge was subsequently and separately charged with,
among other crimes, aiding and abetting aggravated identity theft,
18 U.S.C. §§ 2, 1028A. At trial, he denied the existence of any
agreement, asserting that Mayanja had stolen the documents and used
them without his permission. To prove Kasenge's willful
participation in the scheme, the government called three witnesses:
Mayanja, who testified in exchange for the government's agreement
to recommend the dismissal of certain charges and a reduced
sentence; Serunjogi, who testified in return for immunity from
charges related to his prior false statements; and, to corroborate
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their testimony, Anita Mwebe. Upon a successful objection by
Kasenge, none of the witnesses was permitted to discuss either
Kasenge's fiancée and child or Mwebe's knowledge of the purpose of
Kasenge's trip to London.
During the government's closing argument, the prosecutor
made the following remarks concerning Mwebe's testimony:
I'd ask you to consider all of the evidence
that you've heard in this case . . . .
Consider, for example, the testimony of Anita
Mwebe . . . . Ms. Mwebe came in and told you
three separate vignettes or little anecdotes
about her dealings with Thomas Kasenge. She
didn't have an immunity agreement; she didn't
have a plea agreement; she didn't have any
falsehoods in her past. She . . . came in,
told the story about what she knew. And what
did she tell you? [. . . .] Miss Mwebe
provided you corroboration of what Mr. Mayanja
told you. No ax to grind, she lived in that
house for two months, she was close with Mr.
Kasenge, she was friends with these other
people, she lives in North Carolina now, she
came in, told you what she saw.
(Emphasis added). Later, in rebuttal to Kasenge's closing
argument, which was largely devoted to attacking the credibility of
Mayanja and Serunjogi, the prosecutor stated:
I think [defense counsel] mentioned Anita
Mwebe twice, the first time by saying her
name, the second time saying if you believe
her. Why? There's nothing to say about it
other than what you heard from her. Consider
the testimony of Miss Mwebe, who came in here
without any baggage you heard from other
witnesses, came in and told you what she heard
and saw when she lived with Thomas Kasenge.
(Emphasis added).
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Kasenge was ultimately convicted by a jury and sentenced
to 25 months in prison, including a mandatory 24-month term on the
count of aiding and abetting aggravated identity theft. This
appeal ensued.
II. Discussion
Kasenge challenges his conviction for aiding and abetting
aggravated identity theft, 18 U.S.C. §§ 2, 1028A, on two grounds.
First, he contends that because he consented to Mayanja's use of
his documents, there was no underlying crime of aggravated identity
theft for him to aid and abet. Second, he argues that the
government's closing remarks improperly implied that Mwebe was
impartial, despite the prosecutor's purported knowledge to the
contrary - i.e., that Mwebe had, as Kasenge now suggests, moved to
Chicago in a fit of jealous anger. We address each of these claims
in turn.
A. Aggravated Identity Theft
The operative language of the aggravated identity theft
statute reads:
Whoever, during and in relation to any felony
violation enumerated in subsection (c),
knowingly transfers, possesses, or uses,
without lawful authority, a means of
identification of another person shall, in
addition to the punishment provided for such
felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(1) (emphasis added). Kasenge asserts, for the
first time on appeal, that the phrase "without lawful authority"
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means without the authority, permission, or consent of the
identity's owner; in other words, that the means of identification
must be stolen to trigger liability under § 1028A. Accordingly, he
argues, because he consented to Mayanja's use of his means of
identification, there was no crime of aggravated identity theft for
him to aid and abet.1
We have rejected this narrow interpretation of
§ 1028A(a)(1). See United States v. Ozuna-Cabrera, ___ F.3d ___,
No. 09-2174 (1st Cir. 2011) (holding that § 1028A(a)(1) does not
require theft, or any other illicit method of procurement, of the
means of identification). Because most of Kasenge's arguments
parallel those that we considered and rejected in Ozuna-Cabrera, we
rely primarily on our discussion in that case. However, Kasenge
does advance one additional argument not made in Ozuna-Cabrera.
In essence, Kasenge submits that because any transfer,
possession, or use of another person's means of identification
during and in relation to a § 1028A(c) felony is always illegal, it
could never be done with lawful authority under our interpretation
of § 1028A, thus rendering the phrase "without lawful authority"
redundant. We disagree. It takes little imagination to conceive
instances in which a person might transfer, possess, or use another
1
Because the issue was not raised below, our review is for
plain error, United States v. Matos, 531 F.3d 121, 122 (1st Cir.
2008). As we find no error, plain or otherwise, the argument is
unavailing under any standard of review.
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person's means of identification, during and in relation to a
predicate offense, in a manner that is lawfully authorized.
For example, where an applicant for naturalization
submits documentation of a spouse's citizenship, but the applicant
fraudulently claims to have committed no crime of moral turpitude,
the transfer of the spouse's information is arguably performed with
lawful authority, despite its occurrence during and in relation to
a predicate offense. See 18 U.S.C. § 1028A(c)(6) (relating to
nationality and citizenship).
Closer to the circumstances of this case, the employees
at McDonald's and Hannaford's who possessed Kasenge's identifying
documents, transferred them for administrative review, and used
them to fulfill various state and federal obligations, did so
during and in relation to Mayanja's fraud; yet they acted with
lawful authority, and their conduct unquestionably falls outside
the ambit of § 1028A.
We need not probe the issue further. In Ozuna-Cabrera,
we held that 18 U.S.C. § 1028A(a)(1) does not require that the
means of identification be stolen or otherwise illicitly procured,
and Kasenge presents us with no compelling ground for reappraisal.
Consequently, his statutory argument fails.
B. Prosecutorial Misconduct
Kasenge also takes issue with several statements made by
the government in its closing argument to the jury. He contends
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that the phrases "no ax to grind" and "without . . . [the] baggage
you heard from other witnesses" improperly bolstered by inference
Mwebe's impartiality, despite the prosecutor's alleged knowledge to
the contrary - that, as Kasenge now claims, Mwebe's March 2008 move
to Chicago was motivated by jealousy arising from Kasenge's trip to
London.
Because Kasenge did not object to these statements at
trial, we review only whether the prosecutor's conduct constituted
plain error. United States v. Hansen, 434 F.3d 92, 101 (1st Cir.
2006). Thus, Kasenge must show that (1) "an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of [the] proceedings."
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Even then, reversal would be necessary only if, in light
of the entire record, the remarks in the prosecutor's closing
argument have "so poisoned the well that the trial's outcome was
likely affected." United States v. Henderson, 320 F.3d 92, 107
(1st Cir. 2003). Our assessment requires us to consider: "(1) the
severity of the prosecutor's misconduct, including whether it was
deliberate or accidental; (2) the context in which the misconduct
occurred; (3) whether the judge gave curative instructions and the
likely effect of such instructions; and (4) the strength of the
evidence against the defendants." United States v. Nelson-
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Rodriguez, 319 F.3d 12, 38 (1st Cir. 2003) (quoting United States
v. Wihbey, 75 F.3d 761, 771-72 (1st Cir. 1996)).
As a preliminary matter, we note that the appellant, on
occasion, characterizes the issue as one of improper witness
vouching. A prosecutor improperly vouches for a witness when she
"imparts her personal belief in a witness's veracity or impli[es]
that the jury should credit the prosecutor's evidence simply
because the government can be trusted." United States v. Pérez-
Ruiz, 353 F.3d 1, 9 (1st Cir. 2003). The prosecutor's conduct in
this case does not fit the bill. See United States v. Cruz-Kuilan,
75 F.3d 59, 62 (1st Cir. 1996) ("Arguing that a witness is speaking
the truth because he has reason to do so is not [witness
vouching]."); United States v. Rodríguez, 215 F.3d 110, 123 (1st
Cir. 2000) ("[A]n argument that does no more than assert reasons
why a witness ought to be accepted as truthful by the jury is not
improper witness vouching."). The government did not argue, as
Kasenge paraphrases, "that . . . Mwebe's testimony must be
truthful," "that the jury should believe . . . Mwebe," and "that
Mwebe was telling the truth." Rather, the prosecutor merely
suggested, as was permissible, that the jury draw inferences of
credibility. See Henderson, 320 F.3d at 106 ("[A]lthough it is the
jury's job to draw the inferences, there is nothing improper in the
Government's suggesting which inferences should be drawn.")
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(quoting United States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990))
(internal quotation marks omitted).
Thus, more appropriately framed, the issue is whether the
prosecutor had strong reason to doubt his suggested inference that
Mwebe was indeed impartial, and if so, whether this conduct rises
to the level of plainly erroneous misconduct. See United States v.
Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (noting that, in
closing argument, it is error for the government to propound
inferences that it knows to be false, or has a very strong reason
to doubt).
Examining the specific facts here, we find no error.
Nothing in the record supports Kasenge's theory that Mwebe's
departure was motivated by jealousy. She and Kasenge both
described their relationship in casual terms, and Mwebe was well
aware of Kasenge's familial obligations. In fact, during Kasenge's
visit to London, Mwebe contacted him to request financial
assistance, which Kasenge promptly provided. Add to that the
brevity of their involvement, and Mwebe's near-immediate subsequent
marriage and relocation, and we fail to discern how the prosecutor
would have strong reason to know of her alleged jealousy or ill
will. If Kasenge wanted the jury to infer that Mwebe was jealous,
and therefore partial, he could have introduced such evidence at
trial. He opted not to do so. That was a tactical decision, and
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we are unpersuaded by his current attempt to convert that trial
strategy into a foundation for appeal.
We needn't go further, but, even if improper, the
prosecutor's statements do not require a new trial. See Henderson,
320 F.3d at 107. Kasenge did not contemporaneously object or
request a curative instruction. This failure not only suggests
that Kasenge did not consider the remarks prejudicial, but also
deprived the district judge of the opportunity to resolve any
potential confusion. See United States v. Marshall, 109 F.3d 94,
100 (1st Cir. 1997) (noting that in determining whether a
prosecutor's closing argument is improper, "an excellent test is
whether counsel contemporaneously thinks the line has been crossed,
and objects, which, in turn, enables the court to instruct the
jury"). The court's general closing instructions, however, did
properly counsel the jury regarding what constituted evidence and
the fact that they were the sole judges of credibility.
Specifically, the court reminded jurors that:
Arguments and statements by the lawyers are
not evidence. The lawyers are not witnesses.
[. . . .] If the facts as you remember them
differ from the way the lawyers state the
facts, it's your memory of the facts that
controls. [. . . .] You do not have to
accept the testimony of any witness if you
find that the witness is not credible.
Credible means believable. You must decide
which witnesses to believe and which facts are
true.
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Thus, any potential harmful effect from the prosecutor's closing
statement was safeguarded by the district court's final jury
instructions. See United States v. Mejia-Lozano, 829 F.2d 268, 274
(1st Cir. 1987) (finding that the district judge's standard
instruction was sufficient to overcome any prejudice).
Moreover, the well is deemed less likely to have been
poisoned where strong evidence supports the prosecutor's case.
United States v. Moreno, 991 F.2d 943, 948 (1st Cir. 1993). Here,
the case against Kasenge was ample. The testimony of Mwebe and
others was supported by significant corroborating documentary
evidence, including the transcript of a telephone conversation in
which Kasenge made admissions suggesting that he consented to
Mayanja's use of his documents.
On balance, we are convinced that the prosecutor's
remarks were neither improper nor prejudicial, and therefore did
not deprive Kasenge of a fair trial or a just outcome.
Accordingly, we find no reversible error.
III. Conclusion
For the reasons set forth above, we affirm the judgment
of the district court.
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