UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4338

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN DOE, a/k/a Cheyenne Moody Davis,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:17-cr-00054-ELH-1)

Submitted: January 30, 2019 Decided: February 15, 2019

Before FLOYD, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joanna Silver, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Nita Rao, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellant. Robert K. Hur, United States Attorney, Zachary A. Myers, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Appellant appeals from his convictions for passport fraud, social security number

fraud, aggravated identity theft, and voter fraud. On appeal, he challenges the jury

instructions on the “lawful authority” element of aggravated identity theft. He also

asserts that the district court erred by failing to further define “reasonable doubt” after the

jury asked for a legal definition. We affirm.

“‘The decision to give or not to give a jury instruction is reviewed for an abuse of

discretion.’” United States v. Hurwitz,

(4th Cir. 2006) (quoting United

States v. Moye,

(4th Cir. 2006) (en banc)). “‘We review a jury

instruction to determine whether, taken as a whole, the instruction fairly states the

controlling law.’”

(quoting Moye,

). We apply “‘harmless-error

analysis to cases involving improper instructions.’” United States v. White,

(4th Cir. 2016) (quoting Neder v. United States,

(1999)). An error is

harmless if “it is ‘clear beyond a reasonable doubt that a rational jury would have found

the defendant guilty absent the error.’”

(quoting Neder,

(brackets

omitted)).

Appellant does not dispute that the challenged instruction correctly stated the

controlling law. Instead, he argues that the portion of the court’s instruction stating that

consent does not convey legal authority was improper, because there was no evidence to

support a conclusion that Appellant acquired an identity with consent. Thus, Appellant

contends that the court’s instruction improperly injected a possible fact.

2 However, in Moye, we specifically distinguished between an instruction that

misstates the law and one that presents a theory of conviction not supported by the

evidence.

. We noted that, although “[j]urors are not generally equipped

to determine whether a particular theory of conviction . . . is contrary to the law,” jurors

are “well equipped to analyze the evidence” and recognize factually inadequate theories.

Thus, we found the specific error in Moye – an aiding and abetting instruction that

was not supported by the evidence – to be harmless, as it was “extremely doubtful,”

given the instructions as a whole, that the jury would have based its verdict on an aiding

and abetting theory in the absence of factual support.

.

Here, the evidence showed that Appellant first used another’s identity around the

same time that that person lost his identification paperwork. Thus, the jury could

reasonably infer that Appellant obtained the identification around that time. However,

there is no evidence as to whether Appellant found or stole the identification, whether

someone else found or stole the identification and transferred it to Appellant, or whether

there was some other scenario. Accordingly, the court was appropriately concerned that

the jury might draw improper conclusions about the lack of evidence as to how Appellant

acquired another person’s identity. The instruction correctly informed the jury that

evidence of theft or misappropriation was not required and that even consent from the

“real” person would not constitute “lawful authority.” See United States v.

Ozuna-Cabrera,

(1st Cir. 2011). Given the inferences a reasonable

juror might make from the evidence, or the lack thereof, we find that the instruction was

3 not an abuse of discretion. Moreover, even if there was error, we find that any error was

harmless beyond a reasonable doubt.

Appellant next contends that, although this court has held that district courts need

not and should not define reasonable doubt, the district court should have defined the

term for the jury, after the jury requested further instruction. We have held that “district

court[s] [are] not required to define reasonable doubt to the jury so long as the jury was

instructed that the defendant’s guilt must be proven beyond a reasonable doubt,” because

“attempting to explain the words ‘beyond a reasonable doubt’ is more dangerous than

leaving a jury to wrestle with only the words themselves.” United States v. Hornsby,

(4th Cir. 2012). Further, where the Supreme Court has not ruled on an

issue, a panel of this court is bound by its own precedent. See United States v. Bullard,

(4th Cir. 2011).

Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

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