Friday, August 16, 2013

The Newspaper Deliveryman, the Check and Identity Theft

After Robert Kent Alexander was convicted of aggravated identity theft in violation of 18 U.S. Code § 1028A and sentenced to “seventy-two months' imprisonment followed by five years of supervised release and $158.06 of restitution”, he appealed.  U.S. v. Alexander, 2013 WL 3988682 (U.S. Court of Appeals for the 9th Circuit 2013).

This, according to the court’s opinion, is how Alexander came to be charged:

While employed as a newspaper deliveryman, Robert Kent Alexander stole mail belonging to two individuals who resided along his delivery route, M.S. and V.S. (`the Snows’). The stolen mail contained a check imprinted with the Snows' names, address, bank account number, and bank routing number.

Alexander used the stolen check to create a second, counterfeit check bearing the false name `Robert C. Snow’ (listed as a joint account holder along with the Snows), a false Washington State ID number for Robert Snow, and the Snows' true bank account and routing numbers.

Alexander then used the counterfeit check and a fake ID card in the name `Robert Charles Snow,’ a card that bore Alexander's picture, to make a $158.06 purchase at Walmart.

Alexander was on supervised release at the time and, several days prior to the Walmart transaction, a warrant had been issued for his arrest alleging various supervised release violations. During a subsequent search of Alexander's residence, probation officials discovered the counterfeit check. The Snows later reported the Walmart transaction as an unauthorized debit.

U.S. v. Alexander, supra.

Alexander waived his right to a jury trial and opted for a bench trial, instead, which was held by a federal district court judge in the Western District of Washington.  U.S. v. Alexander, supra.

The charge against Alexander alleged that he “`knowingly used, without lawful authority, a means of identification of another person, to wit, the name and Peninsula Credit Union account number of M.S. and V.S., during and in relation to a felony listed in . . . Section 1028A(c), to wit, bank fraud, in violation of . . . Section 1344.’” U.S. v. Alexander, supra

As the article at this site explains, the § 1028A aggravated identity theft offense consists of using a “means of identification” of another person without their permission to commit one of the felonies listed in 18 U.S. Code § 1028A(c).  As you can see, § 1028A(c)(5) lists bank fraud (in violation of 18 U.S. Code § 1344) as one of those felonies.  

At his bench trial, Alexander

stipulated to the relevant facts but moved for a judgment of acquittal on the grounds that his conduct did not amount to a violation of § 1028A. He argued that, as a matter of statutory interpretation, the passing of a stolen check cannot form the basis of an aggravated identity theft conviction.

He noted that § 1028A(a)(l) requires the unlawful use of `a means of identification of another person,’ a term statutorily 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 . . . access device [ ]as defined in [18 U.S. Code] section 1029(e).” 18 U.S. Code § 1028(d)(7).

But because the term `access device is defined elsewhere in Title 18 [of the U.S. Code] as excluding paper checks, see id. § 1029(e)(1), Alexander argued that the names and numbers on his counterfeit check were, as a matter of law, not a means of identification.’

U.S. v. Alexander, supra.  The district court judge rejected his argument and, as noted above, convicted him. 

The Court of Appeals began its analysis of his argument by noting that aggravated identity theft “involves the knowing transfer, possession, or use of `a means of identification of another person.’”  U.S. v. Alexander, supra (quoting 18 U.S. Code § 1028A(a)(l)).  It also explained that the statute

defines a `means of identification’ as

any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—

(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 18 U.S. Code § 1029(e))[.]

U.S. v. Alexander, supra. 

The court also pointed out that 18 U.S. Code § 1028, which is the basic identity theft statute,

cross-references the access-device fraud statute [18 U.S. Code § 1029], which defines `access device’ 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) (emphasis added).

U.S. v. Alexander, supra. 

Alexander then argued that

his counterfeit check effected ` “transfer originated solely by paper instrument’ under the parenthetical language of § 1029(e)(1); we assume, without deciding, that he is correct. According to Alexander, by incorporating the access-device definition from § 1029(e)(1) into § 1028(d)(7)(D), Congress excluded check forgery from the crime of aggravated identity theft.

U.S. v. Alexander, supra. 

The Court of Appeals did not agree, finding that

[i]t is plain from the language of § 1028(d)(7) that although every access device is a means of identification, not all means of identification are access devices. The term `access device’ appears in § 1028(d)(7)(D), one of four subsections that illustrate the sorts of `name[s] or number[s]’ that meet the definition of a `means of identification.’

Subsections (A) through (D) are connected by the disjunctive `or,’ indicating that no single subsection is necessary to the definition.  Moreover, subsections (A) through (D) are preceded by the word `including,’ which suggests that the list is illustrative rather than exhaustive. . . .

Thus, whether Alexander's counterfeit check was an `access device’ does not answer the question whether the names and banking numbers on his counterfeit check were a `means of identification. For that answer, we must look to § 1028(d)(7)'s introductory paragraph, as well as the examples provided in subsections (A) through (C).

Alexander does not dispute that his counterfeit check contained the Snows' names, bank account number, and routing number. `[A]ny name or number that may be used, alone or in conjunction with any other information, to identify a specific individual’ is a `means of identification’ under § 1028(d)(7).

Subsection (A) reiterates that any `name’ meets the definition. 18 U.S.C. § 1028(d)(7)(A). Moreover, a `routing code’ expressly meets the definition of a “means of identification” under § 1028(d)(7)(C). 

The names and banking numbers on Alexander's counterfeit check are therefore a `means of identification’ under the plain statutory text.

U.S. v. Alexander, supra. 

Alexander also argued that

treating a victim's name and banking numbers on a counterfeit check as a `means of identification’ would render § 1029(e)(1) -- the provision that excludes paper-instrument transfers from the definition of an access device -- a nullity. 

He asks us to `give effect’ to § 1029(e)(1)’s paper-instrument exclusion by holding that the names and numbers on his counterfeit check were not a `means of identification.’ The argument suffers a number of flaws.

As an initial matter, Alexander's nullity argument rests on a logical fallacy. A transfer originated solely by paper instrument is not an access device at all; as such, § 1028(d)(7)(D) has no application.  Stated differently, the only `effect’ of the paper-instrument exclusion is in defining the contours of the term “access device.” See id. § 1029(e)(1).

Assuming, for the sake of argument, that Alexander's counterfeit check was not an `access device’ because it effected a `transfer originated solely by paper instrument,’ the access-device definition—and its paper-instrument exclusion—simply play no further role in the analysis. Id. We fail to see how a subsection that has no application to begin with can be rendered a nullity.

In any event, our interpretation of § 1028(d)(7) does not render § 1029(e)(1)'s paper-instrument exclusion a nullity. That exclusion continues to limit the scope of conduct prohibited by the access-device fraud statute. See id. § 1029(e)(1). . . . Alexander offers no persuasive argument to the contrary.

U.S. v. Alexander, supra. 

The Court of Appeals therefore affirmed Alexander’s conviction and sentence.  U.S. v. Alexander, supra. 

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