The line between mere fraud and identity theft is murky. The Sixth Circuit has repeatedly found that the use of another person’s signature does not constitute identity theft so long as the identity of that other person is not purloined. While this holding is both logical and guards against co-extensive reach of the fraud and identity theft statutes, it arguably created a circuit split. Now, in UnitedStates v. White, the Sixth Circuit has narrowed what “use” of a “means of identification” under Section 1028A is.
Ms. White was a travel agent particularly skilled at obtaining low cost flights for her clients. One of her most effective tactics, unfortunately, was to misrepresent the ticketed passenger’s military status. The airlines had caught her before and revoked her agency’s accreditation. But she found work as a subcontractor for another agency. Once she began, the military status discounts of that agency’s customers increased exponentially. Once confronted, White doubled down by creating false military identification cards to support the discounts. There is no crime so bad that a cover-up can’t make worse.
And it was just that cover-up that the Government asked the Court to focus on. Instead of focusing on the use of a name when obtaining the discounted fares, the Sixth Circuit distinguished prior cases (U.S. v .Miller and U.S. v. Medlock) by focusing on the creation of the identify identification cards—which both constituted a means of identification and were used by White. With that, the Sixth Circuit retained its distinction between the use of a name and the use of an identity, but has apparently signaled its continued effort to narrow the range of circumstances in which that distinction may have application.