United States v. Mikel Clotaire

Case: 17-15287 Date Filed: 06/30/2020 Page: 1 of 25 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-15287 ________________________ D.C. Docket No. 9:16-cr-80135-RLR-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MIKEL CLOTAIRE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (June 30, 2020) Before ROSENBAUM, GRANT, and HULL, Circuit Judges. GRANT, Circuit Judge: Brothers Mikel and Yvenel Clotaire applied for Florida unemployment benefits. The problem was that they did so many times, and using many identities—none of which were their own. In a creative twist, the brothers Case: 17-15287 Date Filed: 06/30/2020 Page: 2 of 25 leveraged Yvenel’s job as a postman to intercept preloaded debit cards that they had requested while posing as residents who lived on Yvenel’s route. Though the mailboxes did not have surveillance footage (that we know of), the banks where the brothers used the stolen debit cards did. When the law eventually caught up with the Clotaire brothers, the federal government charged each with conspiracy to commit access device fraud, access device fraud, and aggravated identity theft. 18 U.S.C. §§ 1029(b)(2), 1029(a)(2), 1028A(a)(1). Though tried separately, both were convicted. Mikel Clotaire now appeals on multiple evidentiary grounds, all of which challenge the methods that the government used to prove his identity to the jury. We affirm his convictions. I. In 2014, the Jupiter Police Department got word that one of its officers applied for Florida unemployment benefits. Suspecting that the officer was a victim of identity theft—after all, he was very much employed—the police contacted the state unemployment office, which in turn reached out to the U.S. Department of Labor when it learned that the application was not legitimate. Special Agent Mathew Broadhurst, an investigator with the Labor Department, opened a criminal investigation. The investigation uncovered an electronic application for benefits with the officer’s name, date of birth, driver’s license number, and social security number. That was an obvious problem since the officer had not applied. More digging revealed seven more fraudulent applications—each exploiting a different person’s 2 Case: 17-15287 Date Filed: 06/30/2020 Page: 3 of 25 identity, but bearing enough similarities to indicate that they were part of a common scheme. Based on these fraudulent applications, the state unemployment office had mailed debit cards to various addresses in the 33418 zip code. As it turns out, Yvenel, a postman with the U.S. Postal Service, covered this area on his route and snatched the fraudulently issued debit cards before they were ever delivered. Clever. But not quite clever enough. Once Broadhurst identified the debit cards issued to the eight victims, he obtained the ATM withdrawal history of each card so he could determine when and where they had been used. Surveillance from the bank branches showed the perpetrator, and at Broadhurst’s request, PNC Bank delivered photographs taken from its ATM cameras. A visible license plate number led to a Hertz rental car agreement in Yvenel’s name. Broadhurst pulled Yvenel’s driver’s license photograph ...

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