Summary
The Fourth Circuit affirmed most of Jennifer Rae McDonald’s fraud-related convictions but vacated her conviction for aggravated identity theft and remanded. The court held under Dubin v. United States that McDonald’s use of another person’s identity was ancillary to, rather than at the crux of, the wire fraud charged as the predicate offense. The court also rejected her challenges concerning trial delays, exclusion of grand jury testimony, and a supplemental jury instruction.
Topics
Practice areas
Questions Presented
- Whether the evidence established that McDonald's use of Curt Tran's identity occurred during and in relation to the wire fraud charged as the predicate offense for aggravated identity theft.
- Whether the district court abused its discretion by denying a mistrial based on delays totaling 51 days, including a 37-day consecutive hiatus, during trial.
- Whether the district court improperly excluded James Woods's grand-jury testimony under Federal Rule of Evidence 804(b)(1) because the government lacked a similar motive to develop it before the grand jury.
- Whether the district court abused its discretion by refusing to admit Woods's grand-jury testimony under the open-door doctrine.
- Whether the district court's sua sponte supplemental jury instruction after closing arguments violated Federal Rule of Criminal Procedure 30 and prejudiced McDonald.
Holdings
- A defendant uses another person's means of identification 'during and in relation to' a predicate felony under 18 U.S.C. § 1028A only when the identity use is at the crux of what makes the predicate conduct criminal. McDonald's use of Tran's identity was ancillary to, rather than at the crux of, the charged wire fraud, so the district court should have entered a judgment of acquittal on the aggravated-identity-theft count.
- The district court did not abuse its discretion by denying a mistrial based on the extended trial delays because the court took adequate steps to mitigate potential prejudice, and the circumstances did not constitute the extraordinary circumstances required for a mistrial.
- The district court properly excluded Woods's grand-jury testimony because the government did not have a similar motive to develop that testimony before the grand jury as it would have had at trial.
- The district court acted within its discretion in concluding that the government's evidence did not open the door to admission of Woods's otherwise inadmissible grand-jury testimony.
- The supplemental instruction did not require reversal because, although post-argument instructions should be used sparingly and the instruction might have been a better exercise of discretion if given before closing arguments, McDonald failed to show actual prejudice from its timing.
Key quotations
“Under Dubin v. United States, 599 U.S. 110 (2023), we hold that it did not.” (at 9)
“A predicate offense can have only one “crux.”” (at 12)
“But without McDonald’s explanation of how knowledge of the instruction would have “altered the tenor or substance” of her closing argument, we can find no prejudice here.” (at 19)
Factual background
McDonald, while serving as executive director of a local economic development authority, used forged deeds, contracts, and letters to divert authority funds to accounts connected to her. The aggravated-identity-theft count was predicated on a wire-fraud count involving a $2 million transfer from an EDA account to TLC Settlements, LLC. Although McDonald used the identity of Curt Tran in a related phase of the scheme involving property purchases and a fraudulent LLC, the evidence showed that the transfer from EDA was induced by a false representation that the Virginia Department of Transportation required the money for an escrow account. During trial, extended health-related delays occurred, a defense witness invoked the Fifth Amendment, and the court gave a supplemental instruction concerning the government's obligation to call witnesses.
Procedural history
A jury convicted McDonald on 34 counts arising from fraud schemes involving the Economic Development Authority of the Town of Front Royal and Warren County. The district court entered a judgment of acquittal on four bank-fraud counts but otherwise entered judgment on the convictions, denied McDonald's mistrial and new-trial motions, and sentenced her. The Fourth Circuit held that the aggravated-identity-theft conviction could not stand, affirmed the rulings on the other claims, vacated the sentence, and remanded for resentencing.
Remand instructions
Vacate McDonald's sentence and the district court's order denying judgment of acquittal on Count 18; enter the appropriate disposition on the aggravated-identity-theft count and conduct resentencing consistent with the opinion. The judgment is affirmed on all other claims.