PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4273

JIMMY EARL HILTON, JR.,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4298

TAMATHA MICHELE MONEY HILTON,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4743

JACQUELINE H. HILTON

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(5:10-cr-00002-RLV-DSC-2; 5:10-cr-00002-RLV-DSC-1;

5:10-cr-00002-RLV-DSC-3)
Argued: October 24, 2012

Decided: December 13, 2012

Before TRAXLER, Chief Judge, KEENAN, Circuit Judge,

and R. Bryan HARWELL, United States District Judge

for the District of South Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Keenan wrote the opinion, in which Chief

Judge Traxler and Judge Harwell joined.

COUNSEL

ARGUED: Rudolph Alexander Ashton, III, MCCOTTER,

ASHTON & SMITH, PA, New Bern, North Carolina; Daniel

Baker McIntyre, III, Charlotte, North Carolina; Lawrence W.

Hewitt, GUTHRIE DAVIS HENDERSON & STATON,

Charlotte, North Carolina, for Appellants. Michael E. Savage,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anne M.

Tompkins, United States Attorney, Benjamin Bain-Creed,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, Jacqueline, Tamatha, and Jimmy Hilton (collectively, the defendants) challenge their convictions on

charges involving a scheme to defraud The Woodsmiths

2 UNITED STATES v. HILTON
Company (Woodsmiths, or the company), a small North Carolina furniture manufacturer that was Tamatha Hilton’s

employer. The primary issue before us is whether the statutes

prohibiting identity theft and aggravated identity theft, 18

U.S.C. §§ 1028(a)(7) and 1028A, under which Jimmy Hilton

and Jacqueline Hilton were convicted, encompass the theft of

the identity of a corporation. We hold that these statutes are

fatally ambiguous in this respect, and we vacate the convictions of Jimmy Hilton and Jacqueline Hilton on these counts.

We conclude that the defendants’ other arguments are without

merit. Accordingly, we affirm Tamatha Hilton’s convictions.

We also affirm the remaining convictions of Jimmy Hilton

and Jacqueline Hilton, but vacate the sentences imposed and

remand those convictions to the district court for resentencing. 

I.

The charges in this case arose from a two-year scheme in

which the defendants defrauded Woodsmiths of about

$655,000, by stealing and cashing numerous checks written to

Woodsmiths by its customers. Tamatha Hilton (Tamatha) was

Woodsmiths’ office manager and bookkeeper. As part of her

duties, Tamatha possessed the only keys to Woodsmiths’ post

office box and was responsible for retrieving the company mail.1

Tamatha participated in the fraud by sending company

invoices to customers, requesting that they mail either initial

or final payment for their furniture orders to the company

address. When the checks arrived at the company’s post office

box, Tamatha removed the checks and, instead of depositing

them into the company’s bank account, gave them to her husband and co-defendant, Jimmy Hilton (Jimmy). During the

course of the scheme, Tamatha stole approximately 168

checks in the aggregate amount of about $655,000. 

1All mail addressed to Woodsmiths’ physical address was rerouted by

the Postal Service to the post office box. 

UNITED STATES v. HILTON 3
In January 2007, before the charged thefts began, defendant

Jacqueline Hilton (Jacqueline), Jimmy’s former wife, opened

a bank account at SunTrust Bank in her name (the bank

account, or the SunTrust account), falsely purporting to be the

owner of a business called Woodsmiths Furniture Company.

The managers of the true entity, Woodsmiths, had no knowledge of Jacqueline’s actions. Jacqueline also purchased a custom, pre-printed stamp at an office supply store bearing the

words: 

Pay to the order of Suntrust Bank 053100465. For

deposit only Woodsmiths 1000036388063. 

Jacqueline testified that she opened the bank account at

Jimmy’s request, and was paid one thousand dollars per

month for maintaining the account. 

To effectuate the fraud, Jimmy endorsed the stolen checks

with the pre-printed stamp and completed corresponding

deposit slips, while Jacqueline deposited the checks into the

bank account. Other than the initial deposit of $150 required

to open the account, the only deposits made to the SunTrust

account were the 168 checks taken from Woodsmiths’ post

office box. 

During the course of the fraud, Jacqueline and Jimmy

wrote, and Jacqueline signed, more than 200 checks drawn on

the account. Law enforcement officers traced the withdrawn

funds to the defendants, including nearly $250,000 in cash

withdrawals obtained by Jimmy and Jacqueline, as well as

payments made to various businesses owned and operated by

Jimmy. The withdrawn funds also were used to make mortgage payments on the home that Jimmy and Tamatha owned.

To conceal the fraud, Tamatha sent customers falsified

invoices indicating that their checks had been credited to their

furniture orders, when in fact the checks had been stolen and

deposited in the SunTrust account. Tamatha also altered the

4 UNITED STATES v. HILTON
company’s accounting records, and provided misleading

information to her supervisors when questioned about

accounting discrepancies. 

As Woodsmiths continued to lose money from the thefts,

the company attempted to collect what appeared to be outstanding balances for furniture that already had been shipped.

The owner of Woodsmiths discovered the fraud when a customer produced a copy of a cancelled check, which had been

sent as payment for a furniture order but was intercepted and

deposited into the SunTrust account. In early 2008, as a result

of the financial loss stemming from the fraud, Woodsmiths

"laid off" all its employees. At the time of trial, Woodsmiths’

owner was the company’s only full-time employee, and he

was able to hire workers only on a week-to-week basis for

limited hours of work. 

The defendants ultimately were charged in a forty-three

count indictment on charges including identity theft, mail

fraud, mail theft, money laundering, conspiracy, passing

forged securities, and making a false statement to a financial

institution. After a six-day trial, a jury acquitted Jacqueline of

making a false statement to a financial institution but convicted the defendants on all remaining counts. The district

court sentenced Tamatha to a total term of 65 months’ imprisonment; Jimmy to a total term of 120 months’ imprisonment;

and Jacqueline to a total term of 81 months’ imprisonment.

Each defendant also was sentenced to a period of supervised

release and ordered to pay restitution in the amount of

$655,876.04. All three defendants filed a timely notice of

appeal.

II.

We first address the district court’s denial of two pre-trial

motions: (1) Tamatha’s motion to suppress certain statements

she made to law enforcement officers; and (2) Jimmy’s

motion for leave to represent himself during jury selection.

UNITED STATES v. HILTON 5
We review the district court’s legal conclusions de novo and

its factual findings for clear error. United States v. Branch,

537 F.3d 328, 337 (4th Cir. 2008) (motion to suppress);

United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)

(motion for self-representation). 

A.

Tamatha challenges the district court’s denial of her motion

to suppress her post-arrest statements, asserting that she was

denied access to an attorney during questioning despite her

repeated requests. When a district court has denied a motion

to suppress, we view the evidence in the light most favorable

to the government. Branch, 537 F.3d at 337. At the suppression hearing, the district court heard testimony from Tamatha

and two law enforcement agents who questioned her following her arrest, Postal Inspector Mark Heath and Secret Service

Special Agent Jonathan Shelton (collectively, the officers). 

The evidence showed that at the beginning of her interview

with the officers, Tamatha signed the Postal Inspection Service’s Warning and Waiver of Rights form. Tamatha testified

that the officers did not recite the warnings required under

Miranda v. Arizona, 384 U.S. 436 (1966), that she did not

read or understand the warning and waiver form, and that she

requested an attorney at least nine times while being transported from her home to the Postal Inspection office. She also

stated that she asked to consult with an attorney several additional times while being interviewed at the Postal Inspection

office.

Inspector Heath disputed Tamatha’s version of the events,

testifying that he orally advised Tamatha of her Miranda

rights at the beginning of the interview. In addition, both officers denied that Tamatha made any of the claimed requests

for an attorney. The officers testified that Tamatha made only

one request for an attorney, when she was asked to give a

6 UNITED STATES v. HILTON
written statement at the end of the interview, and that the officers honored her request. 

After evaluating the credibility of the witnesses, the district

court denied Tamatha’s motion to suppress, finding that the

only time she clearly and unequivocally invoked her right to

counsel was at the end of the interview when asked to give a

written statement. The court further found that the officers

honored Tamatha’s request for counsel, and that her statement

was voluntary. 

In reviewing the denial of a motion to suppress, we accord

particular deference to a district court’s credibility determinations. United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir.

2008). This deference is based on the district court’s role of

observing the witnesses and of weighing their credibility. Id.

(citation omitted). In the present case, Tamatha merely disputes the district court’s credibility findings, and argues that

she requested an attorney at various times during her interrogation. Because the district court was faced with directly contradictory evidence regarding this issue, the court was

required to determine which testimony accurately reflected

the events that transpired. We hold that, in discharging this

duty, the district court did not clearly err in crediting the officers’ testimony, rather than Tamatha’s version of the events.

B.

Jimmy challenges the district court’s denial of his motion

for leave to represent himself at the jury selection stage of his

trial. The record shows that on the morning of jury selection,

Jimmy asked that he be permitted to proceed pro se, after having been represented by court-appointed counsel for eight

months. The district court found that the motion was untimely

and proceeded with the jury selection process, during which

Jimmy was represented by his longstanding counsel. After the

jury was selected, the court informed Jimmy that he would be

allowed to represent himself at the trial scheduled to begin 20

UNITED STATES v. HILTON 7
days later, with the federal defender serving as stand-by counsel. 

In considering Jimmy’s claim, we first observe that a

defendant’s right to self-representation is a protection

afforded by the Sixth Amendment. Faretta v. California, 422

U.S. 806 (1975); United States v. Singleton, 107 F.3d 1091,

1095-96 (4th Cir. 1997). This right extends to participation in

the voir dire process. McKaskle v. Wiggins, 465 U.S. 168, 174

(1984). A request for self-representation must be "(1) clear

and unequivocal; (2) knowing, intelligent, and voluntary; and

(3) timely." United States v. Frazier-El, 204 F.3d 553, 558

(4th Cir. 2000) (citations omitted). Such a request generally

must be asserted before "meaningful trial proceedings" have

begun. United States v. Lawrence, 605 F.2d 1321, 1325 (4th

Cir. 1979). Thereafter, a defendant’s request for selfrepresentation is a matter submitted to the sound discretion of

the trial court. Id. We have emphasized that the right to selfrepresentation is not "to be used as a tactic for delay; for disruption; for distortion of the system; or for manipulation of

the trial process." Frazier-El, 204 F.3d at 560 (citations omitted); see also Singleton, 107 F.3d at 1096 (in the case of an

untimely request, a defendant’s exercise of his right to proceed pro se "may be denied, limited, or conditioned").

In the present case, the district court found that Jimmy’s

request for self-representation during the jury selection process was untimely, and "was a tactic for unnecessarily delaying the court proceedings." The court noted that jury selection

had been scheduled for over a month, and that Jimmy had

been represented by the same attorney for eight months. The

court emphasized that because jury selection for Jimmy’s two

co-defendants was scheduled to begin, an accommodation of

Jimmy’s request "would have inconvenienced these other parties, inconvenienced the members of the jury venire, and disrupted jury selection in the other case." Additionally, the court

found that due to the complex nature of the discovery materials, a decision allowing Jimmy to represent himself at this

8 UNITED STATES v. HILTON
stage would require a continuance of the jury selection proceedings. 

Most importantly, the district court found that Jimmy’s "request for self-representation was motivated by the desire to

improperly delay the trial proceedings," in light of the "specious" justification Jimmy had offered and the fact that his

request "was accompanied by an attempt to serve frivolous

papers on the [c]ourt and the other parties present." Thus,

exercising its discretionary authority at this early stage of the

trial, the court denied this aspect of Jimmy’s request. However, the court permitted Jimmy to proceed pro se at trial

because that request did not present issues of improper delay

or disruption of the proceedings. After reviewing the record,

we conclude that the district court’s factual findings were not

clearly erroneous and provided a sufficient basis for the

court’s discretionary determination denying Jimmy’s request

for self-representation during the jury selection proceedings.2

III.

We turn now to consider the defendants’ various challenges

concerning their convictions for identity theft, aggravated

identity theft, mail theft, and mail fraud.

2Relying on McKaskle, 465 U.S. 168, Jimmy also appears to argue that

he was denied his right to proceed pro se not only at jury selection, but

also at trial, because his counsel’s involvement in jury selection "destroyed the jury’s perception that Jimmy Hilton was representing himself."

The decision in McKaskle, however, addressed the role of stand-by counsel at trial, and Jimmy does not argue that his stand-by attorney acted

improperly. Moreover, the jury was instructed at the outset of the trial that

Jimmy was representing himself and that counsel would be acting only in

a stand-by capacity. Accordingly, to the extent Jimmy maintains that his

right to self-representation was infringed during the presentation of witnesses and argument to the jury, based on counsel’s earlier participation

during the jury selection proceedings, we reject that contention. 

UNITED STATES v. HILTON 9
A.

Jimmy and Jacqueline appeal their convictions for identity

theft and aggravated identity theft, in violation of 18 U.S.C.

§§ 1028(a)(7) and 1028A (the identity theft statutes). They

argue that the conduct charged, namely, the use of the stamp

bearing Woodsmiths’ name in endorsing the stolen checks,

did not constitute a violation of the identity theft statutes,

because the language of those statutes does not encompass the

act of stealing the identity of a corporation. In particular, these

defendants observe that the statutory language refers only to

use of a means of identification of another "person," and that

such "means of identification" are defined only with reference

to the identification of a "specific individual." Therefore, they

contend that the class of protected victims identified in the

identity theft statutes is limited to natural persons and, accordingly, the identity theft convictions should be vacated. 

In response, the government contends that corporations are

included within the class of protected victims, because the

statutes’ purposes are served equally by protecting corporations and individuals from identity theft. The government further maintains that because the consequences of identity theft

may be devastating to corporations, as evidenced by the facts

in this case, it is reasonable to conclude that Congress

intended to protect corporate victims, in addition to natural

persons. We disagree with the government’s arguments.

This issue presents a question of statutory interpretation,

which we review de novo, United States v. Mitchell, 518 F.3d

230, 233 (4th Cir. 2008), mindful of the special considerations

governing the interpretation of criminal statutes. See United

States v. Childress, 104 F.3d 47, 51 (4th Cir. 1996) (quoting

United States v. Sheek, 990 F.2d 150, 152-53 (4th Cir. 1993)).

Criminal statutes "are to be strictly construed and should not

be interpreted to extend criminal liability beyond that which

Congress has ‘plainly and unmistakenly’ proscribed." Id. at

51-52 (citation omitted). 

10 UNITED STATES v. HILTON
In light of the serious consequences flowing from a criminal conviction, the rule of strict construction rests on the principle that "no [person] shall be held criminally responsible for

conduct which he could not reasonably understand to be proscribed." United States v. Lanier, 520 U.S. 259, 265-66

(1997) (quoting Bouie v. City of Columbia, 378 U.S. 347, 351

(1964)). Accordingly, although "[t]he simple existence of

some statutory ambiguity is not sufficient" to trigger automatic resolution of the ambiguity in favor of a defendant,

United States v. Helem, 186 F.3d 449, 455 (4th Cir. 1999)

(quoting Muscarello v. United States, 524 U.S. 125, 138

(1998)), "we will construe [a] criminal statute strictly and

avoid interpretations not clearly warranted by the text." WEC

Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 204

(4th Cir. 2012) (citation and internal quotation marks omitted). 

The first identity theft statute before us, 18 U.S.C.

§ 1028(a)(7), prohibits the knowing transfer, possession, or

use, without lawful authority, of "a means of identification of

another person with the intent to commit, or to aid or abet, or

in connection with, any unlawful activity that constitutes a

violation of [f]ederal law, or that constitutes a felony under

any applicable [s]tate or local law." Id. (emphasis added). The

second identity theft statute that we consider, 18 U.S.C.

§ 1028A, proscribes the same conduct in connection with certain enumerated felonies, including mail fraud, and provides

for enhanced penalties. 

Although the substantive prohibitions of both statutes apply

to the identity of "person[s]," the term "means of identification" found in both statutes is defined in § 1028(d)(7)3

 as "any

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

with any other information, to identify a specific individual"

3This definition applies to offenses charged under § 1028A as well as

§ 1028(a). See 18 U.S.C. § 1028(d); Mitchell, 518 F.3d at 234. 

UNITED STATES v. HILTON 11
(emphasis added).4

 Thus, we must determine whether the

phrase "means of identification of another person," as used in

the identity theft statutes, encompasses the unauthorized use

of the identification of corporations, when the term "means of

identification" is defined by statute as referring to the identity

of "specific individual[s]." 

The identity theft statutes do not define the terms "person"

or "individual." However, the Dictionary Act, 1 U.S.C. § 1,

which defines terms used in the United States Code "unless

the context indicates otherwise," specifies that the word "person" includes "corporations, companies, associations, firms,

partnerships, societies, and joint stock companies, as well as

individuals." Accordingly, under the Dictionary Act, corporations generally are considered "persons" when a statute fails

to indicate otherwise. However, the Dictionary Act does not

define the word "individual." 

The Dictionary Act further complicates this inquiry by

treating the word "individual" as a subset of the term "person." By making this distinction with regard to these two

words, the Dictionary Act suggests that the two words are not

synonymous. Thus, aware of the general definitions contained

in the Dictionary Act, Congress drafted the identity theft statutes by using the term "person," which includes corporations,

4Section § 1028(d)(7) enumerates a non-exhaustive list of means of

identification, including: 

(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)). 

12 UNITED STATES v. HILTON
but also by using the word "individual," which may or may

not include corporations. 

The context of the identity theft statutes does not indicate

whether the term "individual" includes corporations.

Although some of the examples of "means of identification"

enumerated in § 1028(d)(7), such as employer and tax identification numbers, could apply to corporations, this fact does

not resolve the ambiguity in the statute because all the listed

means of identification could apply to natural persons as well

as to corporations.5

We recognize that the identity theft statutes have been

interpreted broadly in other contexts to protect victims and to

deter such thefts. See, e.g., United States v. Maciel-Alcala,

612 F.3d 1092, 1100 (9th Cir. 2010) (interpreting the term

"person" in § 1028A to include both living and deceased persons). And, although the effects of identity theft may be financially devastating to corporations, we cannot discern any

evidence from the text of the statute indicating that Congress

intended to protect corporate victims as well as natural persons.

In light of the statutory ambiguity resulting from Congress’

use of both the term "individual" and the term "person" when

referring to victims of identity theft, and in the absence of any

5

In urging a contrary conclusion, the government cites Clinton v. City

of New York, 524 U.S. 417 (1998), in which the Supreme Court held that

the term "individual," as employed in the Line Item Veto Act, Pub. L. No.

104-130, 110 Stat. 1200 (1996), included corporations. The statute

allowed "any Member of Congress or any individual adversely affected"

by the Act to seek judicial review for the purpose of challenging the constitutionality of the Act. Clinton, 524 U.S. at 428. The Court held that it

could discern no rational reason why Congress would have authorized

judicial actions brought by natural persons affected by the statute but preclude such actions brought by corporations. Id. at 428-29. However,

because the Court addressed in Clinton the requirements for bringing suit

under a civil statute, the Court’s conclusion is not relevant to our current

inquiry given our duty to construe criminal statutes strictly. 

UNITED STATES v. HILTON 13
particular context illuminating the use of these terms in the

statutes, we are left to speculate regarding the class of victims

that Congress intended to protect. In such a circumstance, the

rule of lenity requires that, "[w]hen a choice has to be made

between two readings of what conduct Congress has made a

crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language

that is clear and definite." WEC Carolina Energy Solutions,

687 F.3d at 206 (quoting United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 221-22 (1952)) (alterations omitted). 

The rule of lenity is based on two substantial considerations. First, the rule recognizes that "a fair warning should be

given to the world in language that the common world will

understand, of what the law intends to do if a certain line is

passed." Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 535 (4th

Cir. 2005) (quoting Babbitt v. Sweet Home Chapter of Cmtys.,

515 U.S. 687, 704 n.18 (1995)). Second, the rule acknowledges that Congress, rather than the judiciary, is the proper

institution to define criminal conduct. Id.

Here, nothing in the text, structure, articulated purpose, or

legislative history6 of the identity theft statutes compels the

6We note that the legislative history of § 1028A provides no support for

the conclusion that Congress intended to protect corporations from identity theft. The language used in the House Judiciary Committee Report

exclusively suggests that the identity theft statutes were intended to protect

natural persons. For example, one congressman commented that

"[i]dentity crime is not directed at one demographic. It affects all types of

individuals, regardless of age, gender, nationality or race," and went on to

explain that Congress "must find new ways to protect consumers from the

compromise of their personal information." H.R. Rep. No. 108-528, 2004

WL 5685676, at *788 (2004) (emphasis added) (statement of Rep. Coble,

Chairman, H. Subcomm. on Crime, Terrorism, and Homeland Sec.); see

also id. at *792-93 (statement of Rep. Schiff) (explaining that "[i]dentity

theft occurs when an individual’s personal information is stolen and then

used fraudulently for economic gain" and that "[a] victim of identity theft

14 UNITED STATES v. HILTON
conclusion that Congress intended to make the theft of a corporation’s identity a crime under §§ 1028(a)(7) or 1028A.7

Accordingly, we are left with a "grievous ambiguity or uncertainty in the statute[s]," and we decline to speculate regarding

Congress’ intent. Barber v. Thomas, 130 S. Ct. 2499, 2508

(2010) (quoting Muscarello, 524 U.S. at 139). Instead, faced

with the choice of two plausibly valid interpretations, "we

yield to the rule of lenity." WEC Carolina Energy Solutions,

687 F.3d at 205-06. 

We conclude that the identity theft statutes are fatally

ambiguous regarding whether they include as a criminal

offense the unauthorized use of the means of identification of

a corporation. For these reasons, we vacate Jimmy’s and Jacqueline’s convictions for identity theft and aggravated identity

theft. 

usually spends a year and a half working to restore his or her identity and

good name") (emphasis added). In contrast to this language suggesting

Congressional intent to protect natural persons, we note the lack of similar

statements concerning corporations in reaching our conclusion of ambiguity. 

We also observe that the terms "individual" and "person" are used interchangeably and imprecisely in the House Judiciary Committee Report,

further supporting our finding of ambiguity in the statutes themselves. See

H.R. Rep. No. 108-528, 2004 WL 5685676, at *786 (using the phrase

"means of identification of another individual," in reference to the identity

theft statutes, and in the next sentence referring to "another person’s

means of identification") (emphasis added). 

7

Jimmy and Jacqueline rely on Flores-Figueroa v. United States, 556

U.S. 646 (2009), in support of their position that the identity theft statutes

do not apply to theft of a corporate identity. This reliance is misplaced.

The Court in Flores-Figueroa addressed the issue whether, to be convicted under § 1028A, a defendant must know that the stolen identification

at issue belonged to an actual person, as opposed to a fictitious identity.

556 U.S. at 648. The Court concluded that such knowledge is required, id.

at 647, but did not consider whether the identity theft statutes apply to corporate identities. 

UNITED STATES v. HILTON 15
B.

Tamatha and Jimmy contest the sufficiency of the evidence

to support their convictions for mail theft, in violation of 18

U.S.C. § 1708 (the mail theft statute). They argue that the

thefts of Woodsmiths’ checks were not within the purview of

the mail theft statute, because Tamatha’s position as office

manager and bookkeeper included the authority to open

Woodsmiths’ post office box and remove all mail from it.

Thus, according to these defendants, Tamatha lawfully

removed the letters containing customers’ checks from Woodsmiths’ post office box and later committed the common law

offense of larceny or embezzlement, but did not violate the

federal mail theft statute. We find no merit in this argument.

We review the district court’s denial of a motion for judgment of acquittal de novo. United States v. Penniegraft, 641

F.3d 566, 571 (4th Cir. 2011). In reviewing the sufficiency of

the evidence supporting a conviction, we consider the evidence in the light most favorable to the government and "will

sustain the jury’s verdict if any rational trier of fact could

have found the essential elements of the crime charged

beyond a reasonable doubt." Id. (emphasis in original). 

The mail theft statute, 18 U.S.C. § 1708, provides in relevant part:

Whoever steals, takes, or abstracts, or by fraud or

deception obtains, or attempts so to obtain, from or

out of any mail, post office, or station thereof, letter

box, mail receptacle, or any mail route or other

authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package,

bag, or mail, or abstracts or removes from any such

letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys

any such letter, postal card, package, bag, or mail, or

16 UNITED STATES v. HILTON
any article or thing contained therein . . . (emphasis

added).

The mail theft statute does not encompass thefts that occur

after a letter has left the custody of the postal service, in this

case, the post office. See United States v. Patterson, 664 F.2d

1346, 1347-48 (9th Cir. 1982); United States v. Logwood, 360

F.2d 905, 907-08 (7th Cir. 1966). Accordingly, to meet this

statutory requirement, the government was required to prove

that the defendants had the intent to steal at the time Tamatha

removed the mail from the postal facility. See United States

v. Lampson, 627 F.2d 62, 66 (7th Cir. 1980); see also Allen

v. United States, 387 F.2d 641, 643 (5th Cir. 1968) (the fact

that "[a letter] was stolen is not sufficient; the proof must

show that it was stolen from the mails").

The evidence at trial showed that Tamatha had the intent to

steal at the time she removed the checks from the mailbox,

because the fraudulent scheme already was in place. The SunTrust bank account was opened by Jacqueline on January 23,

2007, and the first stolen check was deposited the very next

day. The extended time period during which the conspiracy

was conducted further illustrates Tamatha’s and Jimmy’s preexisting intent to steal. The checks were deposited over a twoyear period, demonstrating a pattern of conduct that negated

any possible inference of mistake or misapprehension of

authority. 

The jury was instructed that, to convict the defendants of

mail theft, the required intent to steal must have existed "at

the time the mail [was] taken or obtained from the mailbox,

post office or authorized depository for mail matter." Accordingly, by finding Tamatha and Jimmy guilty of mail theft, the

jury found that they had an intent to steal the checks when

Tamatha removed the mail from the post office. 

The fact that Tamatha was authorized to remove mail from

Woodsmiths’ mailbox does not alter our analysis. Although

UNITED STATES v. HILTON 17
Tamatha’s supervisor had given her the authority to collect

Woodsmiths’ mail, this authority did not extend to removal of

the mail for the purpose of converting it for her own benefit.

Under established principles of agency law, the scope of an

agent’s authority is not unlimited and does not extend to

actions that harm the interests of the principal. Cf. In re Am.

Biomaterials Corp., 954 F.2d 919, 924-25 (3d Cir. 1992) (noting that an employee who embezzles from his corporation

does not act within the scope of his employment in doing so).

Thus, an act of a servant is not within the scope of employment if it is "within an independent course of conduct not

intended by the employee to serve any purpose of the

employer." Restatement (Third) of Agency § 7.07(2) (2006).

In the present case, the evidence established that Tamatha’s

supervisors had not given Tamatha the authority to remove

customer checks from the company’s post office box and to

convert them for her own benefit. As the office manager and

bookkeeper, Tamatha was authorized to collect Woodsmiths’

mail from the company post office box, enter customer checks

into the accounting system, and deposit the checks into

Woodsmiths’ BB&T bank account. Michael Munoz, the

owner of Woodsmiths, testified that Tamatha’s authority

regarding customer checks was limited to that particular bank

account.8 Munoz also testified that, contrary to one of the

defense theories at trial, Woodsmiths’ management did not

permit checks written by customers to be endorsed and given

directly to a Woodsmiths vendor for payment; rather, any

such payments to vendors were required to be recorded in the

company accounting system.9

8Munoz elaborated that he did not authorize anyone to take from Woodsmiths the 168 checks in question or to deposit them into the SunTrust

account. 

9

Jimmy’s theory at trial, consistent with the statement Tamatha gave to

the officers following her arrest, was that Tamatha had given him the

checks as payment for certain contract work he had done for Woodsmiths.

18 UNITED STATES v. HILTON
The evidence further showed that Tamatha acted directly

contrary to her employer’s interests at the time she removed

each of the checks from Woodsmiths’ post office box. As discussed above, the prior planning of the fraudulent scheme and

its lengthy duration unquestionably support the conclusion

that she intended to defraud her employer in a systematic

fashion over a period of multiple years. Indeed, despite being

confronted with evidence that the fraud was causing Woodsmiths severe financial hardship, Tamatha falsified customer

invoices, altered Woodsmiths’ accounting records, and lied to

her supervisors to disguise and continue perpetration of the

fraud. 

As demonstrated by this evidence, Tamatha acted outside

the scope of the authority granted to her by her employer

when she removed Woodsmiths’ checks from the company’s

post office box and, rather than entering the checks into the

accounting system and depositing them into the company’s

bank account, retained the checks for the benefit of herself

and her co-defendants. Therefore, we conclude that the evidence supported the jury verdict on the counts of mail theft

brought under 18 U.S.C. § 1708. 

C.

Jimmy, Tamatha, and Jacqueline challenge the sufficiency

of the evidence to support their convictions for mail fraud

affecting a financial institution, in violation of 18 U.S.C.

§ 1341.10 The defendants contend that their use of the mail

was only tangential to, rather than "for the purpose of executing," the fraudulent scheme as required by § 1341. Alterna10In Counts 12 through 19, the indictment alleges that the three defendants, "aided and abetted by each other and persons known and unknown

to the grand jury, having devised the scheme and artifice to defraud and

to obtain money and property from The Woodsmiths Company . . . did

take and cause to be taken," fraudulently endorse, and deposit into the

SunTrust bank account eight named checks, in violation of 18 U.S.C. §§ 2

and 1341. 

UNITED STATES v. HILTON 19
tively, they argue that the mails were not used in furtherance

of the fraud, because Tamatha’s actions in mailing invoices

and receiving payment from Woodsmiths’ customers were

functions authorized and required by her employer as a duty

of her employment. 

In reviewing the district court’s denial of the defendants’

motions for judgment of acquittal, we consider whether the

jury reasonably could have concluded that the mailings were

for the purpose of executing the fraudulent scheme, viewing

the evidence in the light most favorable to the government.

United States v. Snowden, 770 F.2d 393, 397 (4th Cir. 1985).

The mail fraud statute, 18 U.S.C. § 1341, provides in relevant

part:

Whoever, having devised . . . any scheme or artifice

to defraud, or for obtaining money or property by

means of false or fraudulent pretenses . . . for the

purpose of executing such scheme or artifice or

attempting so to do, places in any post office or

authorized depository for mail matter, any matter or

thing whatever to be sent or delivered by the Postal

Service . . . or takes or receives therefrom, any such

matter or thing, or knowingly causes to be delivered

by mail or such carrier according to the direction

thereon, or at the place at which it is directed to be

delivered by the person to whom it is addressed, any

such matter or thing, shall be fined under this title or

imprisoned not more than 20 years, or both (emphasis added).

The statutory requirement that the mails be used "for the

purpose of executing" the fraud does not require that use of

the mails be "an essential element of the scheme." Schmuck

v. United States, 489 U.S. 705, 710 (1989). Rather, "[i]t is

sufficient for the mailing to be incident to an essential part of

the scheme, or a step in the plot." Id. at 710-11 (citations,

alterations, and internal quotation marks omitted). A person

20 UNITED STATES v. HILTON
causes the use of the mails when he "does an act with knowledge that the use of the mails will follow in the ordinary

course of business." Pereira v. United States, 347 U.S. 1, 8-9

(1954).

The Supreme Court clarified the nature of this required

mailing nexus in Parr v. United States, 363 U.S. 370 (1960),

in which the Court addressed a scheme devised by school district and banking officials to defraud the school district of taxpayer funds. As part of the scheme, one of the defendants

misappropriated tax payments mailed to the school district

office. The government claimed that the mailing nexus was

satisfied by the district’s mailing of tax statements and related

documents to taxpayers, which mailings were required by

state law. Id. at 382, 385. 

The Court rejected the argument that "mailings made or

caused to be made under the imperative command of duty

imposed by state law are criminal under the federal mail fraud

statute, even though some of those who are so required to do

the mailing for the District plan to steal, when or after

received, some indefinite part of its moneys." Id. at 391.

However, the Court expressly declined to comment whether

its reasoning would extend to "the conduct of a doctor’s secretary or a business concern’s billing clerk or cashier in mailing out, in the course of duty, the employer’s lawful

statements with the design, eventually executed, of misappropriating part of the receipts."11 Id. at 386. 

11In addition to the tax statement scheme, the Supreme Court rejected

another claimed mailing nexus in Parr, whereby the defendants fraudulently used the school district’s credit card to obtain gasoline products,

knowing that the gasoline company would use the mails to send the credit

card bills to the district. 363 U.S. at 392. The Court found that this connection between the fraud and the mails was insufficient because it was

immaterial to the defendants, "or to any consummation of the scheme,"

how the gasoline company sought payment. Id. at 393. 

Although the defendants seek to apply this reasoning to their scheme,

we are not persuaded by their attempted analogy. Contrary to defendants’

UNITED STATES v. HILTON 21
More recently, in Schmuck, the Court explained that the

existence of a legal duty to use the mails was the gravamen

of the holding in Parr that such use did not constitute mail

fraud, because the defendants in Parr would have made those

required mailings irrespective of the fraudulent scheme. 489

U.S. at 713 n.7. In its analysis in Schmuck, the Court

addressed a scheme in which the defendant, a seller of used

cars, lowered the odometer readings on used cars and sold

them to retail car dealers, who in turn sold the cars to customers for inflated prices reflecting the lowered odometer readings. 489 U.S. at 707. The Court held that the mailing nexus

was satisfied for purposes of the mail fraud statute, because

the retail dealers mailed a required title application form to

the state department of transportation to complete the transactions, thereby enabling the fraud to be consummated. Id. at

707, 711-12; see also United States v. Woods, 535 F.2d 255,

256-57 (4th Cir. 1974) (holding that the mailing nexus was

satisfied when, "as an integral part of their scheme to

defraud," the defendants submitted fraudulent credit card

applications and the credit cards were sent to them through

the mails, and concluding that the "scheme did not reach fruition . . . until after the cards had been acquired and used by

the defendants"). The Court also rejected the defendant’s contention that "routine mailings that are innocent in themselves

cannot supply the mailing element of the mail fraud offense."

Schmuck, 489 U.S. at 714-15. 

The mailing nexus issue before us is resolved by the

Court’s analysis in Schmuck. The evidence presented at trial

amply established that use of the mail was at least "incident

to an essential part of the scheme, or a step in the plot," if not

"an essential element of the scheme." Schmuck, 489 U.S. at

710-11 (citations omitted). The connection to the mails is concontention that "it was immaterial to Defendants how The Woodsmith

[sic] Company went about collecting its payment," in fact, as discussed

below, Tamatha would not have had access to Woodsmiths’ funds had

customers not sent the checks through the mail. 

22 UNITED STATES v. HILTON
siderably more substantial here than the connection in

Schmuck, given that Tamatha herself sent the invoices which

prompted Woodsmiths’ customers to mail the checks, and she

ultimately stole the checks directly from the company’s post

office box. Although Tamatha sent Woodsmiths’ customers

invoices as part of her official duties as office manager, neither the invoices nor the resulting customer checks were sent

through the mails as a result of a duty imposed by law. 

The evidence further demonstrated that Tamatha caused the

checks to be mailed as a step in executing the fraud, because

this procedure was the only means by which she could have

obtained access to Woodsmiths’ funds. Had the funds instead

been wired directly to Woodsmiths’ bank account, Tamatha

would not have had access to those funds because she was not

a signatory on the account. The evidence also indicated that

Tamatha sent falsified invoices to customers in order to conceal the fraud. This body of evidence supports the conclusion

that Tamatha’s actions causing the checks to be mailed were

"part of the execution of the scheme as conceived by the perpetrator[s] at the time." Schmuck, 489 U.S. at 715. When we

view this evidence in the light most favorable to the government, we hold that the jury reasonably could have concluded

that Tamatha, aided and abetted by Jimmy and Jacqueline,

used the mails for the purpose of executing the fraud at the

time she caused the checks to be mailed. 

IV.

In sum, we affirm Tamatha’s convictions. We reverse

Jimmy’s and Jacqueline’s convictions for identity theft and

aggravated identity theft, because the language of those statutes is fatally ambiguous regarding whether corporate victims

are within the class of protected victims. We affirm Jimmy’s

and Jacqueline’s convictions on all remaining charges, and

remand those convictions to the district court for resentencing. 

UNITED STATES v. HILTON 23
AFFIRMED IN PART,

VACATED IN PART, 

AND REMANDED

24 UNITED STATES v. HILTON