United States v. Wedd, No. 18-1392 (2d Cir. 2021)
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The Second Circuit affirmed defendant's conviction for various crimes stemming from his role in two schemes to automatically subscribe consumers, without their knowledge or consent, to premium SMS text messaging services. Counts One and Five charged defendant with conspiracy to commit wire fraud in violation of 18 U.S.C. 1349; Counts Two and Six charged defendant with wire fraud in violation of 18 U.S.C. 1343 and 2; Counts Three and Seven charged defendant with aggravated identity theft in violation of 18 U.S.C. 1028A; and Counts Four and Eight charged defendant with conspiracy to commit money laundering in violation of 18 U.S.C. 1956(h).
The court held that the district court's conduct did not create an appearance of partiality warranting recusal under 28 U.S.C. 455(a); the district court properly instructed the jury on conscious avoidance because sufficient trial evidence supported that theory of criminal liability; and defendant's conduct, as pled and as proven at trial, fit squarely within the scope of the aggravated identity theft statute. The court explained that, by participating in a scheme that employed victims' cell phone numbers to sign them up for paid text message services without their knowledge or consent by means of an auto-subscribing computer program, defendant used, without lawful authority, a means of identification of another person within the meaning of section 1028A.
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