Case: 12-11047 Date Filed: 09/20/2012 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11047
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60213-WPD-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MISTY DEW,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 20, 2012)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Case: 12-11047 Date Filed: 09/20/2012 Page: 2 of 2
Misty Dew was charged in an indictment with conspiracy to commit mail
fraud under 18 U.S.C. § 371, mail fraud under 18 U.S.C. §§ 1341 & 1342, and
aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The jury acquitted her of
the conspiracy and mail fraud charges but convicted her of aggravated identity
theft. On appeal, Dew argues that a conviction of a predicate felony is a necessary
element of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). She contends
that her conviction cannot stand because she has not been convicted of mail fraud
or any other predicate felony.
The inconsistency in the jury verdict is not problematic.
[I]nconsistent verdicts—even verdicts that acquit on a predicate
offense while convicting on the compound offense—should not
necessarily be interpreted as a windfall to the Government at the
defendant’s expense. It is equally possible that the jury, convinced
of guilt, properly reached its conclusion on the compound offense,
and then through mistake, compromise, or lenity, arrived at an
inconsistent conclusion on the lesser offense.
United States v. Powell, 469 U.S. 57, 64, 105 S. Ct. 471, 476 (1984). Here, it is
equally possible that the jury, through mistake, compromise or lenity, arrived at
the wrong verdict as to the charge of mail fraud and not the charge of aggravated
identity theft. Dew does not argue that the evidence presented at trial was
otherwise insufficient. Accordingly, we affirm.
AFFIRMED.
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