Wednesday, October 30, 2013

Narrowing the Crimes of Aggravated Identity Theft, 18 U.S.C. § 1028A, and False Statement to a Bank, 18 U.S.C. § 1014

The Aggravated Identity Theft statute, 18 U.S.C. § 1028A, makes it a crime to "knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person" in relation to certain other offenses listed in 18 U.S.C. § 1028A(c). At issue in United States v. Miller, Case No. 12-6501 (Oct. 30, 2013), was how to define the term "use."

The defendant had signed a loan document—in his own name—falsely claiming that his business partners knew that their joint investment had been used as collateral for the loan. For this conduct, he was properly convicted of making false statements to a bank in violation of 18 U.S.C. § 1014.

But he was also convicted of aggravated identity theft based on the theory that he had "used" his business partners’ identities simply by listing their names on the loan document. The Government maintained that this conviction was proper merely because the defendant "employed their names to his benefit, converted their names to his service, and intentionally availed himself of their names in order to falsely manufacture authority to encumber [the joint] property for [his own] benefit." The Government argued that "if there is any false statement about authority, which necessarily involves the ‘use’ of someone’s name, made in connection with a predicate offense under § 1028A(c), the government can always charge aggravated identity theft in addition to the underlying offense."

The Sixth Circuit disagreed. Relying largely on Judge Paul Maloney’s decision in United States v. Wilcox, No. 1:09-cr-140, 2010 WL 55964, *7 (W.D. Mich. Jan. 4, 2010) (unpublished), the court applied the rule of lenity to adopt a narrow interpretation of the verb "uses" to exclude "merely lying about what [others] did." Instead, to "use" the identity of others for purposes of aggravated identity theft, a defendant must "steal or possess their identities, impersonate them or pass himself off as one of them, act on their behalf, or obtain anything of value in one of their names."

The court also reversed one of the defendant’s two false statement convictions under 18 U.S.C. § 1014, which was premised on his signing of a "modification and renewal agreement" which "did not reaffirm or newly assert" the false statement on which the original loan application was based, but "simply agreed that [the defendant] must bear the legal consequences of having signed the underlying documents, whether the representations contained therein were true or not." The court made clear that "implied representations" are not enough to sustain a conviction.  "Section 1014 prohibits only 'false statements,'" but "'does not generally cover misleading statements, false pretenses, schemes, trickery, fraud or other types of deception.'"

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