[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13641

Non-Argument Calendar

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D.C. Docket No. 4:17-cr-00001-RH-CAS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

TEONA N. RODGERS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(May 7, 2018)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Teona Rodgers appeals following her convictions for receiving stolen 

government property from the Internal Revenue Service (“IRS”) pursuant to 18 

U.S.C. §641; and access device fraud pursuant to 18 US.C. §1029(a)(3); and 

aggravated identity theft pursuant to 18 U.S.C. §1028A(a)(1). On appeal, Rodgers 

argues, first, that a defendant cannot be prosecuted under both 18 U.S.C. §1029 

and 18 U.S.C. §1028A. Second, she argues, for the first time on appeal, that it was 

plain error to convict her for receiving stolen funds from the IRS because of a lack 

of evidence showing she knowingly received stolen government property from a 

third-party, and that this was an essential element of the offense. 

I.

We review de novo, as a question of law, the interpretation of a criminal 

statute. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). The first 

rule in statutory construction is to determine whether the language at issue has a 

plain and unambiguous meaning with regard to the particular dispute. United 

States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009). If so, there is no need for 

further inquiry. Id. We look to the entire statutory context rather than look at one 

word or term in isolation. Id. We will interpret a statute in a manner consistent 

with the plain language of the statute, unless doing so would lead to an absurd 

result. Id. 

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Under 18 U.S.C. §1029(a)(3) it is unlawful to “knowingly and with intent to 

defraud possess[] fifteen or more devices which are counterfeit or unauthorized 

access devices.” A “counterfeit access device” is any access device that is 

“counterfeit, fictitious, altered, or forged,” while an “unauthorized access device” 

includes those access devices that were “lost, stolen, expired, revoked, canceled, or 

obtained with the intent to defraud.” 18 U.S.C. §1029(e). An “access device” is 

defined as:

any card, plate, code, account number, electronic serial number, 

mobile identification number, personal identification number, or other 

telecommunications service, equipment, or instrument identifier, or 

other means of account access that can be used, alone or in 

conjunction with another access device, to obtain money, goods, 

services, or any other thing of value, or that can be used to initiate a 

transfer of funds (other than a transfer originated solely by paper 

instrument)

Id. §1029(e)(1). 

The aggravated identity theft statute, §1028A, provides that “[w]hoever, 

during and in relation to any felony violation enumerated in subsection (c), 

knowingly transfers, possesses, or uses, without lawful authority, a means of 

identification of another person shall, in addition to the punishment provided for 

such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. 

§1028A(a)(1). “Means of identification” is defined as: 

any name or number that may be used, alone or in conjunction with 

any other information, to identify a specific individual, including 

any—

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(A) name, social security number, date of birth, official State or 

government issued driver’s license or identification number, 

alien registration number, government passport number, 

employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, 

retina or iris image, or other unique physical representation;

(C) unique electronic identification number, address, or routing 

code; or

(D) telecommunication identifying information or access device 

(as defined in section 1029(e));

Id.§ 1028(d)(7). Subsection (c), incorporated as an element in §1028A(a)(1), 

includes “any provision contained in this chapter (relating to fraud and false 

statements), other than this section or section 1028(a)(7).” Id. §1028A(c)(4). 

Sections 1028A and 1029(a)(3) are both contained in Title 18, Chapter 47 of the 

United States Code. See id. §§1028A, 1029. The government must prove that 

defendant knew the means of identification belonged to another person. FloresFigueroa v. United States, 556 U.S. 646, 658 (2009). 

In United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009), we held that a 

defendant could be convicted and prosecuted for both §1028A(a)(1) and 

§1029(a)(2) despite double jeopardy concerns. Bonilla, 579 F.3d at 1241, 1244. 

We noted that the legislature specifically authorized cumulative punishment for 

both §1029(a)(2) and § 1028A(a)(1). Id. at 1244; see H.R. REP. NO. 108-528, at 10 

(2004). Section 1029(a)(2) is one predicate offense underlying a conviction for 

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§1028A(a)(1), which in turn serves as a two-year penalty enhancement to 

§1029(a)(2). Bonilla, 579 F.3d at 1244.

We conclude that the plain language of the statute is clear: aggravated 

identity theft can co-exist with a prosecution for access device fraud. While

Bonilla involved a conviction under §1029(a)(2), and not the §1029(a)(3) provision 

at issue here, our reasoning there applies here. Similarly, Congress plainly 

incorporated the term “access device” from § 1029(e) into §1028’s definition of 

“means of identification.” 18 U.S.C. §1028(d)(7)(D). Accordingly, we conclude 

that the district court did not err by denying Rodgers’ motion to dismiss the 

aggravated identity theft charge.

II.

When a defendant challenges the sufficiency of the government’s evidence 

for the first time on appeal, we review the sufficiency of the evidence for a 

manifest miscarriage of justice. United States v. Tagg, 572 F.3d 1320, 1323 (11th 

Cir. 2009). To reverse a conviction under that standard, we must find that the 

evidence on a key element of the offense is so tenuous that a conviction would be 

shocking. Id.

The elements for a conversion or receipt prosecution under section 641’s 

second paragraph are that: (1) that the money or property belonged to the 

government; (2) that the defendant fraudulently appropriated the money or 

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property to his own use or the use of others; (3) and that the defendant did so 

knowingly and willfully with the intent either temporarily or permanently to 

deprive the owner of the use of the money or property. United States v. McRee, 7 

F.3d 976, 980 (11th Cir. 1993). 

Section 641 contains two disjunctive paragraphs. The first paragraph 

captures the stealing of government property, and the second, its receipt. Section 

641 begins:

Whoever embezzles, steals, purloins, or knowingly converts to his use 

or the use of another, or without authority, sells, conveys or disposes 

of any record, voucher, money, or thing of value of the United States 

or of any department or agency thereof, or any property made or being 

made under contract for the United States or any department or 

agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert 

it to his use or gain, knowing it to have been embezzled, stolen, 

purloined or converted

18 U.S.C. §641. A defendant can only be convicted under one of the paragraphs, 

and cannot be convicted for both stealing and receiving the same stolen 

government property. United States v. Minchew, 417 F.2d 218, 219 (5th Cir. 

1969). 

Where evidence is sufficient to support an indictment of both stealing and 

receiving the proceeds, the jury must be instructed that while it can return a verdict 

on either count, it cannot convict under both. Milanovich v. United States, 35 U.S. 

551, 554–55 (1961). Proof offered at trial is not the relevant inquiry—the evidence 

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presented may be interchangeable between the first two paragraphs of §641—and a 

conviction is valid as long as the jury only finds guilt as to either stealing or 

possession of the stolen goods. See United States v. Richardson, 694 F.2d 251, 

254 (11th Cir. 1982) (applying Milanovich and United States v. Gaddis, 424 U.S. 

544 (1976), to a conviction under stolen goods from interstate commerce statute, 

18 U.S.C. §659, which also has provisions for both robbery and possessing stolen 

funds); Minchew, 417 F.2d at 219–20.

In Minchew, we held that evidence establishing the defendant’s burglary 

could be used to establish guilt under the second paragraph of §641 for receiving 

that stolen government property, where the defendant was not charged with 

stealing government property directly under the first paragraph of §641. Minchew, 

417 F.2d at 219–20. In Richardson, the defendant was charged and convicted of

possession of stolen money, but argued that the government introduced evidence at 

trial that he stole property too, and we upheld the conviction because the jury only 

returned the verdict as to possession and not both stealing and possession. 

Richardson, 694 F.2d at 253–54. 

We conclude that there is no manifest miscarriage of justice arising from 

Rodgers’ conviction for receiving stolen government property. Rodgers was 

indicted only for receiving stolen government property, not stealing, and the jury 

was instructed solely on the second paragraph of §641 and then only found 

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Rodgers guilty for knowingly receiving stolen government property. This satisfies 

the requirement of Milanovich and its progeny that the court must instruct the jury 

that they may only convict a defendant under one of § 641’s paragraphs. 

Milanovich, 365 U.S. at 554–55. 

The evidence presented at trial, taken in the light most favorable to the 

government, was sufficient for a reasonable jury to conclude that Rodgers knew 

that she received stolen government money. Receiving government property does 

not require Rodgers to have received it from a third-party. See McRee, 7 F.3d at 

980. In any event, as Rodgers admits in her brief before us, the evidence was 

sufficient to find that she stole government property under the first paragraph, and 

therefore, notwithstanding the above, no miscarriage of justice will result from 

affirming the jury’s verdict. Accordingly, we do not find that the evidence was 

insufficient regarding her conviction under §641.

AFFIRMED. 

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