United States Court of Appeals
             for the Fifth Circuit                            United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              October 20, 2020
                                No. 17-11212                    Lyle W. Cayce
                                                                     Clerk

United States of America,

                                                          Plaintiff—Appellee,

                                    versus

Jeffrey Ndungi Sila,

                                                       Defendant—Appellant.


               Appeal from the United States District Court
                   for the Northern District of Texas
                        USDC No. 3:16-CR-448-1


Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
       A jury convicted Jeffrey Sila of theft of public funds and aggravated
identity theft. On appeal, he contends that the district court erred by failing
to give the jury a “unanimity of theory” instruction on Counts I and II of his
indictment, that there was insufficient evidence to convict him on Count III,
and that his sentence was incorrect. We AFFIRM the judgment of the
district court with respect to Counts I and II, VACATE Sila’s conviction on
Count III, and REMAND the case for re-sentencing.
                                       No. 17-11212


                                             I.
        In 2016, the Internal Revenue Service began investigating a scheme
involving stolen tax refund checks. The IRS believed the scheme was being
run out of Kenya and suspected Lydia Breaux of acting as a stateside
operative. Breaux soon confided in an undercover IRS agent that Jeffrey
Sila—already a suspect in the investigation—had entered the United States
from Kenya with a large tax refund check in need of cashing. The trio (the
IRS agent, Breaux, and Sila) met in a Dallas, Texas restaurant to negotiate
the purchase of the tax refund check by the IRS agent. At this meeting, Sila
showed the agent a picture of the check, made out to a long-deceased
individual named Cynthia Short. Sila also assured the agent that he could get
him a fake driver’s license in Short’s name.
        Negotiations continued over the course of a week until the trio met up
again to close the deal on August 9, 2016. The IRS agent purchased the
check. A few days later, Sila made good on his promise and e-mailed the
agent a fake driver’s license in Short’s name. Further investigation revealed
that other fraudulent tax refunds had been issued to a bank account linked to
Breaux. One such refund, under the name Dietrich Eipper, was filed with an
IP address associated with Sila.
        Sila was arrested and charged with two counts of theft of public funds
in violation of 18 U.S.C. §§ 2 and 641, based on two fraudulent tax refunds:
one in Short’s name (Count I) and one in Eipper’s name (Count III).1 Sila
was also charged with aggravated identity theft in violation of 18 U.S.C. §§ 2
and 1028A (Count II), based on the use of Short’s identity to accomplish the

        1
          The pertinent portion of 18 U.S.C. § 641 prohibits embezzling, stealing,
purloining, or knowingly converting any “record, voucher, money, or thing of value of the
United States or of any department or agency thereof.” Title 18 U.S.C. § 2(a) provides
that “[w]hoever commits an offense against the United States or aids, abets . . . or procures
its commission, is punishable as a principal.”




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                                  No. 17-11212


Count I offense. A federal jury convicted Sila on all three counts and the
district court subsequently sentenced him. Sila timely appealed.
                                      II.
       Sila raises three arguments: (A) that the district court erred by failing
to give the jury a “unanimity of theory” instruction on Counts I and II, (B)
that there was insufficient evidence to convict him of theft of public funds on
Count III (the Eipper tax refund), and (C) that his sentence should be vacated
for erroneous loss attribution. We address each of these arguments in turn.
                                      A.
       Sila first argues that the district court should have given the jury a
unanimity of theory instruction.        We review a district court’s jury
instructions for abuse of discretion. United States v. Hernandez, 

,
311 (5th Cir. 1996). We “will not reverse if the court’s charge, viewed in its
entirety, is a correct statement of the law which clearly instructs jurors as to
the relevant principles of law.”

criminal case, a jury “cannot
convict unless it unanimously finds that the Government has proved each
element.” Richardson v. United States, 

, 817 (1999). In general,
however, “the jury need not agree as to mere means of satisfying the actus
reus element of an offense.” Schad v. Arizona, 

, 632 (1991)
(plurality opinion). Thus, “[i]n the routine case, a general unanimity
instruction will ensure that the jury is unanimous on the factual basis for a
conviction, even where an indictment alleges numerous factual bases for
criminal liability.” United States v. Holley, 

, 925–26 (5th Cir.
1991) (quoting United States v. Beros, 

, 460 (3d Cir. 1987)).
       But an exception to the general rule arises when the “differences
between means become so important that they may not reasonably be viewed
as alternatives to a common end, but must be treated as differentiating what
the Constitution requires to be treated as separate offenses.” Schad, 

                                         No. 17-11212


at 633 (plurality opinion). Where the exception applies, a general unanimity
“instruction will be inadequate to protect the defendant’s constitutional
right to a unanimous verdict” because “there exists a genuine risk that the
jury is confused or that a conviction may occur as the result of different jurors
concluding that a defendant committed different acts.” 

(internal quotation marks omitted) (quoting United States v. Duncan, 

, 1114 (6th Cir. 1988) (overruled on other grounds by 

)).
        Sila asserts that his right to a unanimous jury verdict was violated by
the district court’s failure to give a “unanimity of theory” instruction to the
jury on Count I (the Short tax refund). The district court’s instruction did
not address two aspects of unanimity that Sila wanted it to require: unanimity
with respect to the location of the crime and unanimity with respect to the
possible distinctions between “stealing” and “conversion” in § 641.2
Instead, the district court gave a general unanimity instruction: “[t]o reach a
verdict, whether it is guilty or not guilty, all of you must agree. Your verdict
must be unanimous on each count of the second superseding indictment.”
Sila argues that a general unanimity instruction was inadequate to protect his
constitutional rights. See 

.
        Relying on Schad, Sila first argues that “[m]isappropriating the check
in Kenya would constitute one offense; converting the check to cash through


        2
           During the charge conference at trial, Sila’s counsel proposed some language that
would have distinguished between stealing and converting in § 641, but did not offer any
language or suggest any corrections to the district court’s charge relating to the location
(Dallas or Kenya) of the Count I offense. It is therefore doubtful that Sila’s jury-charge
argument with respect to the location of the crime was properly preserved on appeal. See
United States v. Bennett, 

, 243 (5th Cir. 2017) (noting that a district court errs
in rejecting a requested jury instruction if the instruction is “substantively correct”, is “not
substantially covered in the charge given to the jury”, and “concerns an important point in
the trial.”).




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                                  No. 17-11212


a sale in Dallas would constitute another.” He says that, because the
Government proved that the Short tax refund was filed in Kenya in April
2015 (the Government did not prove who filed it) and proved that the check
was sold in Dallas in August 2016, the conduct in each location must be
treated as separate offenses and the jury should have been instructed
accordingly. Sila says that the Government advanced both theories at trial
and notes several instances when the Government mentioned Sila’s conduct
in Kenya.
       To support this argument that the jury needed to be instructed that it
must be unanimous as to whether the conduct in Kenya or Dallas formed the
basis for Count I, Sila relies on Holley, 

. In Holley, the defendant
was charged with two counts of perjury and each count alleged multiple
perjurious statements.

He argued on appeal that a unanimity
instruction was necessary to ensure that the jury was unanimous as to at least
one statement alleged in each of the two counts.

We agreed and
determined that a unanimity of theory instruction was required because each
count of the indictment “allege[d] multiple false statements” and “[t]he
[G]overnment was required to prove dissimilar facts to show the knowing
falsity of each statement.”

Without a unanimity of theory
instruction, there was “a reasonable possibility that the jury was not
unanimous with respect to at least one statement in each count.”

       The Government does not dispute that Sila’s conduct in Dallas and
his conduct in Kenya could have theoretically constituted two separate
violations of § 641. Rather, the Government maintains that it sought to
convict Sila on Count I based only on his conduct in Dallas. Therefore, the
Government argues, the district court did not err in failing to give a unanimity
of theory instruction as to the location of the crime.




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                                No. 17-11212


      Sila is correct that, if the Government had alleged he violated § 641 in
Kenya and/or in Dallas, then a unanimity of theory instruction consistent
with Holley would have been required. But the United States did not allege
two offenses in two locations, or even that one offense occurred across two
locations. The indictment is instead based solely on the August 9, 2016
Dallas transaction—made over a year after the fraudulent tax refund in
Short’s name was filed in Kenya. The indictment alleged that the crime
occurred on or about August 9, 2016 “in the Dallas Division of the Northern
District of Texas,” not in Kenya.        Plus, the facts alleged in Count I
correspond to the August 9, 2016 transaction, and cannot be reasonably
construed to relate to any conduct performed at a much earlier date on a
different continent. Unlike the indictment in Holley, Count I of Sila’s
indictment does not allege “multiple” offenses or “embrace[] two or more
separate offenses, though each be a violation of the same statute.” 

.
      The record also fails to vindicate Sila’s portrayal of the trial and his
argument that the jury could have been confused. See

He cites the
Government’s closing argument, where the prosecutor said: “When did the
theft occur? Well, the indictment alleges August the 9th. That’s the day he
was in possession of [the Short tax refund]. He had brought it from Kenya,
he had the intent to sell it and convert it to cash. That’s stealing. That’s
conversion.” Far from proving that the Government charged Sila for his
conduct in Kenya, this quote bolsters the Government’s argument that “the
theft occurred . . . on August the 9th”—when Sila was in Dallas, not Kenya.
He notes another moment from the Government’s closing argument: “And
where did Mr. Sila come from to come to the United States with that check?
It was Kenya.” Context is key. In this portion of its closing argument, the
United States was not emphasizing the fact that Sila traveled to the United
States from Kenya, but rather that Sila’s coming from Kenya was further




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evidence that he was associated with the Kenyan IP address used to file the
Short tax refund. None of the quotes to which Sila directed us show that the
Count I offense was based on conduct in Kenya as opposed to conduct in
Dallas.
          Sila alternatively says he could have been convicted of violating 18
U.S.C. § 641 by either “steal[ing]” or “convert[ing]” public funds, and that
the statute’s different verbs create two different offenses. Thus, Sila says,
the jury should have been instructed as to which offense—stealing or
converting—the Government had accused him of committing.                    Sila’s
argument is foreclosed by our recent holding in United States v. Coffman, 

(5th Cir. 2020). In Coffman, as here, the defendant was convicted
of violating the first paragraph of § 641 and argued on appeal that the district
court erred by failing to give a special unanimity instruction addressing the
different verbs of § 641.

We looked to the Supreme Court’s
decision in Morissette v. United States, 

(1952), where the Court
treated the verbs of § 641’s first paragraph “together”:
          We find no other purpose [in § 641] than to collect from
          scattered sources crimes so kindred as to belong in one
          category . . . . It is not surprising if there is considerable
          overlapping in the embezzlement, stealing, purloining and
          knowing conversion grouped in this statute. What has
          concerned codifiers of the larceny-type offense is that gaps or
          crevices have separated particular crimes of this general class
          and guilty men have escaped through the breaches.

(quoting 

–67).
          Rejecting Coffman’s argument that § 641’s first paragraph listed
distinct elements, we held that “[t]he alternative verbs in the first paragraph
of Section 641 are means of committing the offense, not elements.”

stealing or converting public funds are different means of
violating § 641, but § 641 is violated all the same, and the Government need



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                                   No. 17-11212


not separately prove that a defendant either stole or converted public funds.
See also 

(Scalia, J., concurring in part) (“[W]hen a
single crime can be committed in various ways, jurors need not agree upon
the mode of commission.”). We therefore affirm Sila’s convictions on
Counts I and II.
                                       B.
       Next, Sila argues that there was insufficient evidence to convict him
on Count III. Count III of the indictment charged Sila with aiding and
abetting a violation of § 641 by participating in the filing of a fraudulent tax
return in the name of Dietrich Eipper. On appeal, Sila does not dispute that
such an act could serve as a basis for conviction, nor does he dispute the
validity of any of the record evidence. Instead, he argues that no rational
juror could have concluded on the evidence presented that he filed or aided
and abetted in filing the Eipper tax refund.
       “[T]he standard of review is whether the evidence, as viewed in the
light most favorable to the verdict, would permit a rational trier of fact to find
[the defendant] guilty beyond a reasonable doubt.” United States v. Guerrero,

, 939 (5th Cir. 1999) (quoting United States v. Pankhurst, 

, 352 (5th Cir. 1997)). The evidence is insufficient only when, taking all
inferences in favor of the verdict, “no rational juror could have found guilt
beyond a reasonable doubt.” United States v. Hoffman, 

, 541 (5th
Cir. 2018) (quoting United States v. Sanjar, 

, 744 (5th Cir.
2017)). We “consider countervailing evidence as well as the evidence that
supports the verdict.” United States v. Brown, 

, 664 (5th Cir.
1999) (quoting United States v. Giraldi, 

, 1372 (5th Cir. 1996)).
       At trial, the Government offered the following evidence in support of
the Count III charge: After the undercover IRS agent met with Breaux and
Sila in Dallas and purchased the refund check in Short’s name, further




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                                         No. 17-11212


investigation revealed that Breaux was connected to several other fraudulent
tax refunds. One of these was the Eipper tax refund. This refund had been
filed from a Kenyan IP address ending in 139 (the “139 IP address”), and this
IP address was assigned to a company called Enterprise ICT. (Enterprise
ICT was also assigned to another IP address, the one used to file the Short
tax refund in Count I). Sila used Enterprise ICT’s mailing address as the
“home” address on one of his PayPal accounts. Between 2011 and 2016,
PayPal accounts in Sila’s name had used the 139 IP address almost 1,000
times. After the Eipper tax refund issued to Breaux’s bank account, she
wired $9,000 to Sila’s brother, Edwin. In addition to this evidence, the
United States argued that Sila’s connections with Breaux and Edwin on both
the Short tax refund and the Eipper tax refund evinced an overlay of
participants between the crimes.3
        On appeal, Sila argues that there is no way to know whether any of the
logins to his PayPal accounts from the 139 IP address were actually him or
were instead someone else with his login information. He stresses that the
139 IP address was assigned to a business, Enterprise ICT, and that any
number of people—most importantly, his brother Edwin—could have been
using the 139 IP address to log into Sila’s PayPal accounts. He notes that his
PayPal accounts were logged into several times after he was taken into
custody. He also argues that, because the mailing address assigned to
Enterprise ICT and one of Sila’s PayPal accounts was located in a Nairobi
mall, it is possible that the mailing address “was a central depository for mail
for every business at the mall.” Sila contends that the Government offered
no evidence that he otherwise used the 139 IP address on the day the Eipper

        3
          In his brief, Sila argued for the first time that such overlay-of-participant evidence
was inadmissible under Federal Rule of Evidence 404(b) and our decision in 

. Because we hold the evidence insufficient on Count III regardless of whether
overlay-of-participant evidence was properly admitted, we do not address this argument.




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                                      No. 17-11212


tax refund was filed with that IP address.              Finally, he notes that the
Government said in its closing argument at trial that Enterprise ICT was his
brother’s business, not his.
        Drawing “all reasonable inferences in support of the verdict,” we hold
that the evidence was insufficient to support Sila’s Count III conviction. The
Government presented no conclusive evidence showing that Sila had ever
used the 139 IP address, much less that he used it to file (or help file) the
Eipper tax refund. All circumstantial evidence supporting the Government’s
contention that Sila used the 139 IP address many times is severely undercut
by the fact that anyone associated with Enterprise ICT and logged into their
system could have used it. Moreover, that Sila’s PayPal was accessed after
he was taken into custody substantially weakens the Government’s argument
that he was the exclusive user of his PayPal accounts and therefore was the
only person using the 139 IP address to log into his PayPal accounts almost
1,000 times between 2011 and 2016. We therefore vacate Sila’s Count III
conviction.
                                           C.
        Finally, Sila argues that the district court attributed an erroneous
amount of loss to him and thereby improperly sentenced him. Specifically,
Sila says that the district court clearly erred in attributing $3.9 million of loss
to him based on the IP address ending in 154 used for Counts I and II.
Because there will be a re-sentencing here,4 we need not address Sila’s
argument about the reliability of the assertions in the Presentence Report and
whether those assertions support the district court’s attributing to Sila all




        4
         At oral argument, the United States conceded that a reversal of Sila’s Count III
conviction would require re-sentencing.




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                                   No. 17-11212


fraudulent tax refunds filed from the 154 IP address from 2011 to 2016 in its
calculation of a proper sentence on Counts I and II.
                               *        *         *
       The judgment of the district court is AFFIRMED on Counts I and
II and VACATED with respect to Count III. The case is REMANDED
for re-sentencing.




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