"Name"

This post is about a federal identity theft case: U.S. v. Blixt, 2008 WL 5003239 (9th Circuit Court of Appeals 2008).

Here, according to the Ninth Circuit, are the facts that resulted in Ms. Blixt’s being charged with identity theft:

Blixt began working for Crawford and Company in 1998 in its Helena, Montana office. Crawford is a large international corporation, providing claim adjusting, vocational rehabilitation, and risk management services to its insurance company clients. At the time of the events leading to Blixt's conviction, Timothy Fitzpatrick was the branch manager.

When checks arrived from insurance companies, they were forwarded from the Helena office . . . to Crawford's headquarters in Atlanta via commercial carrier. From 2003 to 2004, it was primarily Blixt's responsibility to forward the packages.

The Helena branch maintained a checking account at Valley Bank, with Fitzpatrick having signature authority. . . . [I]n March, 2003, Blixt began to deposit client payments into the Valley Bank account. Blixt wrote approximately 352 checks from this account for her own personal gain, forging Fitzpatrick's signature on each check. The total amount of the checks was in excess of $150,000.00. . . .

In . . . 2004, Blixt began sending false accounting information to Crawford's Atlanta office to cover her actions. . . . Using this system, Blixt was able to orchestrate allocation of current funds to old accounts from which Blixt had stolen funds.

In August, 2004, Fitzpatrick was alerted by Valley Bank to `some unusual signatures on checks that were coming into the account.’ Ultimately, Blixt admitted her actions to Fitzpatrick.

U.S. v. Blixt, supra. Blixt was charged with committing (i) mail fraud in violation of 18 U.S. Code § 1341 and aggravated identity theft in violation of 18 U.S. Code § 1828A.

The aggravated identity theft statute makes it a crime to, “during and in relation to” committing one of a number of specified federal felonies, knowingly use, “without lawful authority, a means of identification of another”. 18 U.S. Code § 1828A(1). The felony violations specified in § 1828A include mail fraud, so Blixt was charged with knowingly using a means of identification of another “during and in relation to” the commission of mail fraud. Section 1028A defines “means of identification” as “any name or number that may be used . . . to identify a specific individual, including . . . name, social security number, date of birth, . . . driver's license . . . number, . . . passport number, employer or taxpayer identification number”. 18 U.S. Code § 1028A(d)(7).

Mail fraud consists of using the mails to execute a scheme to defraud. 18 U.S. Code § 1341. Blixt’s using the mail to send false accounting information to the Atlanta office would qualify as mail fraud because it helped her keep the scheme going when it might otherwise have been discovered earlier. Since the mail fraud statutes makes it a crime to use the mails to “execute” a scheme to defraud, it encompasses conduct other than the conduct actually involved in perpetrating the fraud, i.e., in securing the money or property that is the object of the fraud.

Blixt was convicted of both counts and appealed, making a rather interesting but ultimately futile argument in challenging her conviction for the § 1028A offense. She claimed “she did not use another's name, she merely forged a signature, and because a forged signature is not separately identified as a `means of identification’ under § 1028A , her actions did not violate the statute.” U.S. v. Blixt, supra. The Ninth Circuit began its analysis of her argument by noting that

[w]hether the use of another's signature constitutes a `means of identification for purposes of the Aggravated Identity Theft statute has not yet been resolved by this or any other circuit. Finding no prior authority on the issue, we hold as a matter of first impression that forging another's signature constitutes the use of that person's name and thus qualifies as a `means of identification’ under 18 U.S.C. § 1028A .

U.S. v. Blixt, supra.

Seems that should be obvious, doesn’t it? It is obvious, as a matter of common sense, but courts can’t just rely on common sense. They have to be sure that a term used in the definition of a crime has been defined clearly enough, in the law, that a reasonable person would be able to find out precisely what is, and is not, prohibited. The premise that the law is knowable (reasonably clear) and available (published) is the basic reason why “ignorance of the law is no excuse” when it comes to the commission of crimes. If you can figure out what you’re not supposed to do, then you can’t go ahead and do that and then claim you didn’t actually know it was “wrong.”

In analyzing Blixt’s argument, the Ninth Circuit Court of Appeals began noting that there is nothing in the definition of “means of identification” quoted above that

suggests the use of another's name in the form of a signature is somehow excluded from the definition of “means of identification.”

Were we to find that signatures are categorically not names and thus not included within this definition, we would be disregarding the `settled principle of statutory construction that we must give effect, if possible, to every word of the statute.’ . . . By . . . `any’ to qualify the term `name,’ the statute reflects Congress's intention to construct an expansive definition. . . . Categorically carving out a signature from this definition, although a signature is commonly understood to be the written form of a person's name, would impermissibly narrow the definition of “name” in the statute. Thus, . . . a signature is a name for the purpose of applying the Aggravated Identity Theft statute.

U.S. v. Blixt, supra. Ms. Blixt also had another argument in her arsenal. She claimed

a signature is no more than `a series of lines, curves, and squiggles,’ and that no one would be able to decipher Fitzpatrick's name from his signature. However, she does not dispute that Fitzpatrick's signature was meant to be a particularized rendering of his name. Fitzpatrick's signature, however illegible, was thus nothing more than his name written in a particular way and meant to identify him, specifically. Thus, in forging his signature, Blixt indisputably used another person's means of identification for an unauthorized purpose in violation of the Aggravated Identity Theft statute.

U.S. v. Blixt, supra.

Finally, Ms. Blixt argued that the signature on a check is

the event that causes a check to be paid, not the name; and that this use of a signature is `not the theft of “personal data” contemplated by Congress when enacting this statute.’ . . . [T]he process used by banks to direct payment on a check in no way affects the legal question of whether forging another's signature constitutes the use of that person's name. More importantly, . . . the legislative history cited by Blixt more strongly supports a conclusion that Blixt's forgery of Fitzgerald's signature constitutes the use of a `means of identification’ because it conforms precisely to the conduct Congress sought to proscribe -- wrongfully obtaining and using Fitzpatrick's signature for her own economic gain.

U.S. v. Blixt. The Ninth Circuit upheld Ms. Blixt’s conviction on the § 1028A charge (and, for other reasons, on the mail fraud charge, as well).

So, if you’re contemplating forging someone’s signature to commit mail fraud or any of a variety of other federal felonies, you’re on notice that you’re also contemplating the commission of aggravated identity theft, as well.