Argued and Submitted, Pasadena, California: December
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-01067-TJH-1. Terry J. Hatter, District Judge, Presiding.
Davina T. Chen (argued), Glendale, California, for Defendant-Appellant.
Cathy J. Ostiller (argued), Robert E. Dugdale, Assistant United States Attorneys, and André Birotte Jr., United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
Before: Paul J. Watford and Andrew D. Hurwitz, Circuit Judges, and William E. Smith, Chief District Judge.[*] Opinion by Judge Smith.
SMITH, Chief District Judge:
Following a jury trial, Doren Harold Ward was convicted on numerous charges, including two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Ward appeals the aggravated identity theft convictions, arguing that the district court constructively amended the indictment in violation of the Fifth Amendment. We agree.
I. Factual Background
A. The Scheme
In 2011, Ward and several co-conspirators were involved in a scheme to defraud Chase Bank USA, N.A. and its customers. The co-conspirators gathered victims' personal information and transmitted it to a co-conspirator in the United Kingdom (" UK" ). The UK co-conspirator would then phone Chase and impersonate the victim, using the personal information to respond to Chase's security questions and corroborate the falsified identity. At the request of the UK co-conspirator, Chase would mail a replacement credit card to an address in California. Ward and his co-conspirators then used these replacement credit cards to make expensive purchases. In total, Chase's losses amounted to some $299,000.
B. Pretrial Events
In a first superseding indictment, Ward was charged with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, two counts of bank fraud in violation of 18 U.S.C. § 1344(1), one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Count VI, charging aggravated identity theft, accused Ward of " knowingly possess[ing] and us[ing], without lawful authority, a means of identification of another person, that is, names and account numbers of customers of [Chase]."
After Ward moved to dismiss Count VI because no specific victim was named, a second superseding indictment was returned, separating former Count VI into Counts VI and VII. Count VI charged Ward with aggravated identity theft related to Chase customer " G.G.," identified
elsewhere in the record as Gerald Glen. Count VII charged Ward with aggravated identity theft related to Chase customer " C.H.," identified elsewhere in the record as Chris Hagler.
Ward attempted to plead guilty to all charges but the two counts of aggravated identity theft. The district court declined to accept the plea, reasoning that it could not accept a plea to the conspiracy charge without it effectively becoming an admission to the identity theft charges.
C. The Trial
Ward proceeded to trial on all six counts. At the outset of the trial, Ward stipulated to his guilt on the conspiracy, bank fraud and access device charges, contesting only the aggravated identity theft charges.
Over Ward's objection, the district court permitted testimony from victims in addition to Gerald Glen and Chris Hagler about the theft of their identities in the scheme. Specifically, the district court permitted the testimony of Rufus and Janey Brandt, a married couple from Wisconsin, Robert Bitter, and Kimberly Franklin. Ward and his co-conspirators had ordered replacement credit cards for the Brandts and for Bitter, and had used those cards to make sizeable purchases. Computer printouts bearing Franklin's personal information had been found during the execution of a search warrant at Ward's apartment. While no evidence was introduced that Franklin's account had been compromised, it was assumed that Ward obtained her personal information for purposes of stealing her identity.
Ward's objection to the testimony of the Brandts, Bitter and Franklin was premised on his contention that the testimony was relevant only to the conspiracy, bank fraud and access device charges to which he was admitting guilt, and was thus unduly prejudicial. The government responded by arguing that this testimony was important circumstantial evidence necessary to establish that Ward knew his victims to be real people, an element of aggravated identity theft. The district court overruled Ward's objection and permitted the additional victims to testify.
Glen, Hagler, Franklin, Bitter and Rufus and Janey Brandt all testified during the trial as to the theft of their identities. In its closing argument, while discussing the aggravated identity theft counts, the government contended that Ward knew Glen and Hagler to be real people, but also referred to other victims including the Brandts and Franklin, suggesting that Ward knew that they too were real people. With respect to Rufus Brandt, the government noted that " we saw Rufus Brandt's . . . Mileage Plus card. Real people have these rewards programs. . . . These are real people's credit cards." With respect to Franklin, the government reminded jurors that " [y]ou met Kimberly Franklin. She told you that the Social Security number, the address, the driver's license, the DOB, on this email printout found at the defendant's home were all hers. That was her information that the defendant knew and had sitting in his apartment."
Following closing arguments, the district court instructed the jury. On Count VI, charging aggravated identity theft with respect to Gerald Glen, the ...