Wednesday, 01 January 2014 02:52

U.S. v. Robert Kent Alexander: Aggravated Identity Theft

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On April 9, 2013, the United States Ninth Circuit Court of Appeals upheld the conviction of Robert Kent Alexander on one count of aggravated identity theft in connection with stealing mail and using the information of the legitimate recipient of that mail to create a counterfeit check and fake Washington State identification to make a purchase totaling $158.06 at Walmart.

Alexander was also charged with one count each of bank fraud, passing a forged or altered check, and possessing stolen mail, He pleaded guilty to these charges but disputed the charge of aggravated identity theft on the grounds that passing stolen check cannot meet the requirements of aggravated identity theft under the statute, since, according to court documents, "§ 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.] section 1029(e).” 18 U.S.C. § 1028(d)(7). But because the term “access device” is defined elsewhere in Title 18 as excluding paper checks, see id. § 1029(e)(1)," Therefore, he argued that names and numbers on the counterfeit check did not constitute "means of identification" under the law.

Court documents state the facts of the case as follows: " 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."

The Ninth Circuit applied the de novo standard of review of the district court's decision and contended that the "plain language of the aggravated identity theft statute answers the question before us: a victim’s true name and banking numbers, appearing on a counterfeit check, are “any name or number that may be used . . . to identify a specific individual.' 18 U.S.C. § 1028(d)(7). Accordingly, we agree with the district court that the Snows’ personal information appearing on Alexander’s counterfeit check was a “means of identification.”"

Also, the appeals court noted that Alexander's argument concerning whether or not a check was an access device under the law, this argument "does not answer the question whether the names and banking numbers on his counterfeit check were a 'means of identification.'” The court held that "“[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."

Therefore, the Ninth Circuit Appeals Court affirmed the conviction for aggravated identity theft, finding that the true name and banking numbers of a victim that appear on a counterfeit check constitute a means of identification under 18 U.S.C. §§ 1028A, 1028(d)(7).


United States v. Robert Kent Alexander, Ninth Circuit Court of Appeals, Opinion

18 U.S. Code § 1028 - Fraud and Related Activity in Connection with Identification Documents, Authentication Features, and Information


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