Argued and Submitted April 9, 2013 —Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding DC No. 3:11-cr-05352 RBL-1
Alan Zarky (argued) and Colin Fieman, Assistant Federal Public Defenders, Tacoma, Washington, for Defendant-Appellant.
Michael S. Morgan (argued), Assistant United States Attorney; Jenny A. Durkan, United States Attorney for the Western District of Washington, Seattle, Washington, for Plaintiff-Appellee.
Before: Dorothy W. Nelson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.
Affirming a conviction for aggravated identity theft, the panel held that a victim's true name and banking numbers appearing on a counterfeit check are a "means of identification" for purposes of 18 U.S.C. §§ 1028A, 1028(d)(7).
TASHIMA, Circuit Judge
We must decide whether a counterfeit paper check that bears a victim's true name, bank account number, and routing number is a "means of identification of another person" for the purposes of the aggravated identity theft statute, 18 U.S.C. §§ 1028A, 1028(d)(7)). The district court answered in the affirmative and returned a judgment of conviction. We have jurisdiction under 28 U.S.C. § 1291 and, for the following reasons, we affirm.
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.
Alexander was charged with aggravated identity theft in violation of 18 U.S.C. § 1028A (count 1), bank fraud in violation of 18 U.S.C. § 1344 (count 2), passing a forged or altered check in violation of 18 U.S.C. § 513(a) (count 3), and possessing stolen mail in violation of 18 U.S.C. § 1708 (count 4). He pleaded guilty to counts 2, 3, and 4. A bench trial was held on count 1, which charged that Alexander "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." 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)(1) 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.C.] ...