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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