United States v. Bechir Delva, Dan Kenny Delva (11th Cir. April 2019)

The Federal Docket

May 7, 2019

Fourth Amendment/Automobile Exception – Probable cause to search a vehicle existed where undercover footage revealed the vehicle’s owner was involved in identity fraud operation, the defendant was seen moving credit cards to the vehicle after his conspirators declared it was time to move the operation, and the cards were visible to law enforcement in plain view of the backseat.

Aggravated Identity Fraud – Sufficient evidence exists to infer that a defendant knows they are using a real person’s means of identification when they use it to obtain benefits or property that require verification that the means of identification belongs to a real person.

Evidence/Expert Testimony – Law enforcement officials experienced in identity fraud crimes may provide expert testimony regarding slang or coded terms used in identity fraud schemes and may identity such terms as used by defendants.

Sentencing Guidelines/Firearm Enhancement – Firearm enhancement was proper for two defendants where firearm was present in the area where they were organizing and conducting fraudulent scheme and one defendant claimed he owned them for protection from robbery.

Brothers Bechir and Kenny Delva were convicted for access device fraud, tax fraud, and identity theft. On appeal, they argued, among other things, that: 1) the district court erred in declining to suppress evidence found during a warrantless search of Bechir’s vehicle, 2) there was insufficient evidence to convict Kenny Delva, 3) the district court erred in admitting expert testimony as to the “terminology and jargon” used in identity theft and tax fraud crimes, and 4) the district court erred in applying a firearm enhancement.

The Delvas were investigated by the Government with the aid of an undercover informant named McKenzie Francois. Equipped with audio and visual recording devices, Francois entered the townhome were the Delvas based their operation. Through Francois, law enforcement observed cash in the house, numerous debit cards and other documents containing personally identifying information (“PII”), computers, and firearms. Law enforcement also heard the Delvas and others discuss the operation and suggest moving their operation to a hotel to avoid government surveillance.

Before agents had secured a search warrant for the townhouse, agents followed Bechir Delva in his Mercedes and conducted a traffic stop. Officers arrested Bechir and observed an open box in the car containing credit cards and other PII, similar to a box seen in Francois’ undercover video recording. Agents performed an initial, “cursory search” of the car and photographed the box of credit cards without seizing it as evidence.

Agents then executed a search warrant of the townhouse and Mercedes, seizing credit cards and other PII from the car and house, along with phone bills, the firearms, and other documents connecting Bechir and Kenny to the PII and townhouse. After waiving his Miranda rights, Bechir claimed ownership of the credit cards and PII documents, and he signed a statement admitting to using the PII to fraudulently obtain tax refunds.

Prior to trial, Bechir filed a motion to suppress the evidence seized from the Mercedes as the fruits of an unlawful traffic stop and warrantless search of his vehicle. After the motion was rejected, Bechir and Kenny were tried and convicted.

At trial, the Government’s evidence included expert testimony from a detective who explained “stolen identity refund fraud,” pointed out “common slang terms” used by “identity fraudsters” as heard in the undercover recordings obtained by Francois, and explained certain tactics used in identity fraud schemes, such as working through hotels to avoid detection through WiFi. Bechir testified on his own behalf, claiming that his confession was coerced and that he had only been an infrequent visitor of the townhome who was not involved in the tax fraud scheme.

Suppression of Evidence

 The Court affirmed the district court order denying Bechir’s motion to suppress, citing the automobile exception to the Fourth Amendment’s warrant requirement. The Court held there was probable cause to search the Mercedes based on Francois’s undercover footage showing Bechir’s proximity to the PII in the townhome, his involvement in plans to move the materials to a hotel, the agents’ observing Bechir moving the materials to the Mercedes, and the fact that the box of credit cards was in plain view in the car’s backseat.

The Court also held that the evidence obtained from the search of the vehicle was admissible under the inevitable discovery doctrine. The Court noted that the government obtained a warrant to search the Mercedes the same day and had been actively pursuing it before the initial, warrantless search.

Sufficiency of Evidence

The Court held there was sufficient evidence to convict Kenny Delva of conspiracy and substantive possession of unauthorized access devices and aggravated identity theft. In addition to the footage placing Kenny at the townhouse, surrounded by PII, debit cards, and firearms, Kenny’s statements in the footage reflected his desire to move the operation to the hotel and included slang frequently used in connection with identity fraud. There were also tax documents, receipts for firearms, and other evidence, including fingerprints, tying Kenny to the fraudulent activity conducted in the townhouse.

The Court also rejected Kenny’s argument that there was insufficient evidence to convict him of aggravated identity theft because the government did not prove “that he knew that the means of personal identification he possessed belonged to real people.” A jury may infer such knowledge from a defendant’s repeated use of a victim’s PII to obtain benefits to which the victim is entitled.

Here, there was sufficient evidence of Kenny’s knowledge that the PII belonged to real people because he was repeatedly using their information as part of a scheme to obtain refunds from the IRS, “which verifies the name and Social Security number of the person requesting the refund.”

Expert Evidence

The Delvas argued that the district court abused its discretion in permitting a detective to testify as an expert “in identity theft and tax fraud and the terminology and jargon used in this type of crime,” especially his testimony “interpreting” the language used in the undercover footage of the townhouse. The Court disagreed, noting that it is “well-settled” that experienced law enforcement can testify as experts “to decode criminal conversations and operations that jurors might not otherwise understand.”

Here, there was sufficient evidence of the detective’s qualifications, competency, and experience in investigating “stolen identity refund fraud.” His personal experience in such cases also made his methodology reliable. The Court added that the expert testimony was helpful to the jury in understanding the slang terms used by the Delvas and that the detective did not offer an opinion as to the Delvas’ guilt—he just described terms used in identity fraud and identified and defined those terms as the Devlas used them in the footage.

Firearm Sentencing Enhancement

The Delvas argued that the district court erred in applying a two-level enhancement under U.S.S.G. § 2B1.1(b)(15)()B for an offense involving “possession of a firearm in connection with the offense.” Bechir argued that the firearms were in the townhouse for protection against a potential robbery independent of any criminal activities occurring therein. Kenny argued that, though he bought the firearms for Bechir, there was no evidence that Kenny was aware that Bechir was using them “for protection,” or that Kenny had ever possessed the firearms after giving them to Bechir or that he himself intended to use them for protection.

The Court held that the enhancement was proper. There was substantial evidence that Bechir and Kenny were conducting fraud out of the townhouse, where the weapons were kept, and that the weapons were to protect the townhouse from robbery. Accordingly, the firearm was constructively possessed by everyone in the townhouse, and it was reasonably foreseeable to Kenny and the others that the guns were there “to protect the fraud factory.”

*The Court also rejected arguments that there was cumulative error and that Kenny Delva’s sentence was substantively unreasonable.

Appeal from Southern District of Florida

Opinion by Hull, joined by Marcus and Grant

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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