United States v. Nina McKinnie Macena, 11th Cir. (2016)

Case: 14-14915
Date Filed: 02/09/2016
Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14915
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00016-MHT-SRW-1
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
NINA MCKINNIE MACENA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 9, 2016)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 14-14915
Page: 2 of 10
After a jury trial, Nina M. Macena appeals her convictions for wire fraud, in
violation of 18 U.S.C. 1343, aggravated identity theft, in violation of 18 U.S.C.
1028A and 2, and conspiring to file false claims, in violation of 18 U.S.C.
286. Defendant Macenas convictions arise out of a tax fraud scheme using the
stolen personal information of inmates at the Dothan City Jail. According to the
trial evidence, Defendant Macena acted as a go-between in the scheme. In this
role, Defendant Macena obtained Dothan City Jail docket sheets from Roderick
Neal, a bail bondsman who stole them from his employer. The docket sheets
contained personal information, such as dates of birth and social security numbers.
Defendant Macena then gave the docket sheets to Ivory Bolen, who used the
personal information on them to prepare and electronically file fraudulent tax
returns.
On appeal, Macena argues that the district court erred by denying Macenas
motion for a judgment of acquittal. Defendant Macena contends that the
government failed to prove that she knew what Bolen was doing with the docket
sheets or that Macena herself was involved in filing the fraudulent tax returns.
Defendant Macena contends that the trial testimony of Bolen and Neal about
Macenas knowledge of the scheme was not credible. After review, we affirm.
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I. RULE 29(a) JUDGMENT OF AQUITTAL

Under Federal Rule of Criminal Procedure 29(a), the district court on the
defendants motion[,] must enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). We
review both the denial of a motion for a judgment of acquittal and the sufficiency
of the evidence de novo, viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the jurys verdict.
United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). We will affirm a
conviction if there is any reasonable construction of the evidence that would have
allowed the jury to find the defendant guilty beyond a reasonable doubt. Id.
(quotation marks and alteration omitted).
II. ELEMENTS OF MACENAS OFFENSES
To convict a defendant of a false claims conspiracy to defraud the
government under 18 U.S.C. 286, the government must prove the existence of
an agreement to achieve an unlawful objective, the defendants knowing and
voluntary participation in the conspiracy, and the commission of an overt act in
furtherance of it. United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014)
(quotation marks omitted), cert. denied, 135 S. Ct. 1882 (2015). The unlawful
objective of a 286 conspiracy is to defraud the federal government by obtaining
or aiding to obtain the payment or allowance of any false, fictitious or fraudulent
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claim[.] 18 U.S.C. 286. The extent of knowledge of details in the conspiracy

does not matter if the proof shows the defendant knew the essential objective of the
conspiracy. Baldwin, 774 F.3d at 721.
To convict a defendant of wire fraud under 18 U.S.C. 1343, the
government must prove that the defendant: (1) participated in a scheme or artifice
to defraud; (2) with the intent to defraud; and (3) used, or caused the use of,
interstate wire transmissions for the purpose of executing the scheme or artifice to
defraud. Martin, 803 F.3d at 588. Wire fraud can be proved by circumstantial
evidence. Id. A person causes the wires to be used within the meaning of 18
U.S.C. 1343, when he acts with knowledge that the use of the wires will follow
in the ordinary course of business, or where such use can reasonably be foreseen,
even though not actually intended. United States v. Ward, 486 F.3d 1212, 1222
(11th Cir. 2007).
To convict a defendant of aggravated identity theft under 18 U.S.C.
1028A, the government must prove that the defendant: (1) knowingly transferred,
possessed, or used; (2) the means of identification of another person; (3) without
lawful authority; (4) during and in relation to a felony enumerated in 1028A(c).
United States v. Barrington, 648 F.3d 1178, 1192 (11th Cir. 2011). Wire fraud is
one of the enumerated felonies in 1028A(c). 18 U.S.C. 1028A(c)(5). With
respect to mens rea, the government must also show that the defendant knew the
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means of identification at issue belonged to another person. United States v. Doe,

661 F.3d 550, 561 (11th Cir. 2011).
II. SUFFICIENCY OF THE TRIAL EVIDENCE
Here, the trial evidence, viewed in the light most favorable to the
government, amply supported the jurys verdict on all offense counts. At trial,
Bolen testified that she was involved in preparing false tax returns using stolen
identities. Bolen filed the tax returns electronically and received the resulting
refunds through prepaid debit cards. Bolen initially approached Defendant Macena
and asked her to provide Bolen with mailing addresses Bolen could use to receive
the debit cards containing the tax refunds. Defendant Macena agreed, providing
Bolen between five and ten addresses. When none of those addresses received a
debit card, Bolen explained to Defendant Macena that the scheme was like
playing a lottery, and that only some of the tax returns would go through.
Later, Defendant Macena asked Bolen if she would prepare tax returns for
Macena. Bolen agreed to do so, but only if Defendant Macena provided the
personal information used to prepare the returns. Over time, Defendant Macena
provided Bolen between 50 and 100 docket sheets from the Dothan City Jail,
which Defendant Macena told Bolen that Macena had obtained from a man named
Neal. The docket sheets contained inmates personal information, such as social
security numbers and dates of birth, which Bolen used to file false tax returns.
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Bolen said she and Defendant Macena agreed to split the refunds generated from
the false returns evenly.
Neal, Defendant Macenas accomplice at the bail bonding company, also
testified. According to Neal, Defendant Macena approached him to obtain the
docket sheets for Bolen, whom Macena described as a friend that did income tax.
In exchange, Defendant Macena agreed to give Neal a piece of the refunds. Neal
gave Defendant Macena docket sheets on five or six occasions, but never met
Bolen. Later, Defendant Macena contacted Neal asking for more docket sheets
because Bolen knew someone who wanted them.
At some point, Bolen began cooperating with Internal Revenue Service
investigators. Special Agent Louie Wilson testified that Bolen made several
recorded telephone calls to Defendant Macena. During these recorded calls,
Defendant Macena, among other things, (1) agreed to get Bolen more names so
that Bolen could sell them to another person as a quick flip; (2) expressed
concerns about some of the names not going through or being repeats; (3)
advised Bolen that her friend at the bonding company was going to get some
fresh sheets and that Macena had warned him that sheets with the birthdates
redacted where no good because they needed birthdates; and (4) stated that she
had hidden some of the sheets Neal had given her in storage.
Case: 14-14915
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Special Agent Wilson also testified that a search of Defendant Macenas

storage locker found items commonly associated with stolen identity refund fraud,
including debit cards with names that also appeared on Dothan City Jail records.
In a post-arrest interview, Defendant Macena admitted to Special Agent Wilson
that Bolen approached her about filing false tax returns and asked [Macena] to
contact Mr. Neal at the bail bonding company to see if he could provide them with
names that could be used to file these false tax returns. Defendant Macena further
admitted: (1) obtaining names from Neal for Bolen; (2) splitting the funds from
one prepaid debit card with Bolen; (3) receiving telephone calls from Bolen asking
for more names that Bolen could sell to someone else; and (4) attempting to
contact Neal to try to get more names for Bolen.
From the above evidence, a reasonable jury could readily conclude beyond a
reasonable doubt that Defendant Macena knew she was participating in a stolen
identity tax refund fraud scheme. According to the testimony of Bolen, Neal, and
Special Agent Wilson, Defendant Macena was fully aware that the docket sheets
she got from Neal and gave to Bolen were used to prepare unauthorized tax returns
with the goal of receiving fraudulent tax refunds issued on prepaid debit cards.
Indeed, Bolen explained the scheme to Defendant Macena, who then explained it
to Neal. Moreover, Defendant Macenas own statements made during the recorded
calls with Bolen indicate that she was well aware of the nature of the scheme.
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Notably, in addition to all of the evidence discussed above, Defendant

Macena elected to testify in her own defense. At trial, Macena said that Bolen
never explained to her how Bolen was using the docket sheets and said that Bolen
gave her funds from debit cards for doing Bolen a favor. Macena claimed that
she did not understand what Bolen was referring to in their recorded telephone
calls and merely said what she thought Bolen wanted to hear. The jury, however,
was free to disbelieve Macena and find that in fact the opposite was true. See
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (explaining that a
defendants testimony, if disbelieved by the jury, may be considered as
substantive evidence of the defendants guilt).
Defendant Macenas arguments about the credibility of Bolen and Neal are
unavailing because their testimony was not unbelievable on its face. See United
States v. Thompson, 422 F.3d 1285, 1291-92 (11th Cir. 2005). Nor has Defendant
Macena identified any facts that would render their testimony impossible under the
laws of nature. See id. Both Neals and Bolens possible incentives to lie were
brought out on cross examination. The jury was free to disbelieve the two
government witnesses, but obviously did not do so. See United States v. Calderon,
127 F.3d 1314, 1324-25 (11th Cir. 1997) (rejecting an attack on the credibility of
witnesses who were convicted felons cooperating with the government). Because
Case: 14-14915
Page: 9 of 10
neither Bolens nor Neals testimony was incredible as a matter of law, the Court
must accept the jurys credibility findings. See id.
Finally, Defendant Macena appears to contend the government failed to
prove she committed wire fraud because she was not involved with filing the tax
returns and did not know Bolen was using interstate wires to file the tax returns.
The government, however, did not need to prove that Macena personally used
interstate wires. Rather, by proving that Defendant Macena gave Bolen the stolen
docket sheets knowing that Bolen would use them to prepare and submit fraudulent
tax returns, the government proved that Macena caused the use of wires by
obtaining the docket sheets for Bolen. See Ward, 486 F.3d at 1222. Bolen
testified that she filed the returns electronically. Even if Defendant Macena was
unaware of the exact method Bolen used to conduct the refund fraud, it was
reasonably foreseeable that the submission of a large number of fraudulent tax
returns would be done electronically. See id. (explaining that the use of wires need
only be reasonably foreseeable).1
In sum, there was ample evidence from which the jury could conclude
beyond a reasonable doubt that Macena was guilty of wire fraud, aggravated
1
In the summary of the argument and the final conclusion, Macenas brief states that to
convict her of aggravated identity theft, the government needed to prove that she was aware that
the identifications used in the fraud scheme belonged to other people. Because Macenas brief
provides no further argument or analysis, however, she has abandoned this issue. See United
States v. King, 751 F.3d 1268, 1277 (11th Cir.), cert. denied, 135 S. Ct. 389 (2014) (explaining
that mere terse statements in a brief are insufficient to raise an issue on appeal).
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identity theft, and conspiracy to defraud the government by filing false claims.
Accordingly, the district court did not err in denying Macenas motions for a
judgment of acquittal. 2
AFFIRMED.
Defendant Macena does not appeal her 34-month sentence.

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Case: 14-14915

Date Filed: 02/09/2016

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Date Filed: 02/09/2016

Date Filed: 02/09/2016

I. RULE 29(a) JUDGMENT OF AQUITTAL

Date Filed: 02/09/2016

claim[.] 18 U.S.C. 286. The extent of knowledge of details in the conspiracy

Date Filed: 02/09/2016

means of identification at issue belonged to another person. United States v. Doe,

Date Filed: 02/09/2016

Date Filed: 02/09/2016

Special Agent Wilson also testified that a search of Defendant Macenas

Date Filed: 02/09/2016

Notably, in addition to all of the evidence discussed above, Defendant

Date Filed: 02/09/2016

Date Filed: 02/09/2016

Defendant Macena does not appeal her 34-month sentence.

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