Opposition Brief — Matthew G. Munksgard, Petitioner v. United States
Supreme Court briefDec 16, 2019
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No. 19-5457
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
MATTHEW G. MUNKSGARD, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether the court of appeals correctly determined that
the trial evidence was sufficient to establish that the bank to
which
petitioner
submitted
a
fraudulent
loan
application
was
federally insured at the time of the fraud.
2.
Whether petitioner “use[d], without lawful authority, a
means of identification of another person,” within the meaning of
18 U.S.C. 1028A(a)(1), when he forged another person’s signature
on a contract that he submitted to a federally insured bank in
support of a loan application.
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (N.D. Fla.):
United States v. Munksgard, No. 15-cr-12 (Dec. 21, 2016)
United States Court of Appeals (11th Cir.):
United States v. Munksgard, No. 16-17654 (Jan. 30, 2019)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 19-5457
MATTHEW G. MUNKSGARD, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-A32) 1 is
reported at 913 F.3d 1327.
The order of the district court is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on January
30, 2019.
A petition for rehearing was denied on May 2, 2019 (Pet.
Appendix A to the petition for a writ of certiorari
contains an unpaginated transmittal memorandum from the clerk of
the court of appeals to the parties, which accompanied that court’s
decision. For clarity, this brief treats Appendix A as if it were
separately paginated beginning on the first page of the court of
appeals’ opinion (i.e., with page 1 of the opinion as Pet. App. A1).
1
2
App. B1).
30,
The petition for a writ of certiorari was filed on July
2019.
The
jurisdiction
of
this
Court
is
invoked
under
28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Northern District of Florida, petitioner was convicted on
four counts of making false statements on a loan application, in
violation of 18 U.S.C. 1014, and one count of aggravated identity
theft, in violation of 18 U.S.C. 1028A.
Judgment 1.
Petitioner
was sentenced to 30 months of imprisonment, to be followed by three
years of supervised release.
affirmed.
Judgment 3-4.
The court of appeals
1.
Pet. App. A1-A32.
In 2013, petitioner, a land surveyor, applied for a line
of credit with Drummond Community Bank, a federally insured bank
operating in west central Florida, to finance his land-surveying
business.
Pet. App. A3-A4.
In support of his loan application,
petitioner submitted a purported contract between him and a company
named Cal-Maine Foods.
Ibid.
The contract bore the signature of
Kyle Morris, a Cal-Maine Foods employee.
petitioner
later
admitted,
the
Id. at A4.
contract
was
In fact, as
fraudulent,
and
petitioner had signed Morris’s name without Morris’s knowledge or
permission.
Ibid.
Between 2013 and 2014, petitioner obtained three more lines
of credit from Drummond Bank.
Pet. App. A4.
In each instance,
petitioner submitted a fraudulent contract in support of his loan
3
application.
Ibid.
The entities identified in the contracts,
however, had no knowledge of the agreements, and the contracts
were signed in the names of fictitious employees.
2.
Florida
Ibid.
In May 2015, a grand jury in the Northern District of
returned
an
indictment
charging
petitioner
with
four
counts of making false statements on a loan application to a
federally insured financial institution, in violation of 18 U.S.C.
1014, based on petitioner’s four fraudulent loan applications to
Drummond Bank; and one count of aggravated identity theft, in
violation of 18 U.S.C. 1028A, based on petitioner’s unauthorized
use of Morris’s name and signature on the forged Cal-Maine Foods
contract.
Indictment 1-3.
During petitioner’s jury trial, the government introduced
three pieces of evidence to show, as required by 18 U.S.C. 1014,
that
Drummond
Bank
petitioner’s false
was
federally
applications.
insured
Pet.
App.
at
A5.
the
time
of
First,
the
government introduced a certificate issued to Drummond Bank by the
Federal Deposit Insurance Corporation (FDIC) in 1990, which showed
that the bank’s deposits were FDIC-insured when the bank was
initially chartered in 1990.
Trial Tr. 155.
Ibid.; Gov’t C.A. Br. 5; 9/13/2016
Second, Drummond Bank’s vice president and chief
underwriter, David Claussen, testified that the bank was FDICinsured at the time of trial in 2016.
9/13/2016 Trial Tr. 153-154,
158-159; see Pet. App. A5; Gov’t C.A. Br. 5.
Third, Claussen, who
had worked at Drummond Bank for 25 years, additionally testified
4
that the bank’s FDIC certificate is not periodically renewed.
9/13/2016 Trial Tr. 153, 158; Pet. App. A5; Gov’t C.A. Br. 5.
At the close of the evidence, petitioner moved for a judgment
of acquittal on all counts. 9/13/2016 Trial Tr. 341.
With respect
to the false-loan-application counts, petitioner argued that the
trial evidence was insufficient to establish that Drummond Bank
was federally insured at the time of petitioner’s offenses in 2013
and 2014.
Id. at 345-346.
With respect to the aggravated-
identity-theft count, petitioner argued that he did not “use[]”
Morris’s name within the meaning of 18 U.S.C. 1028A.
Trial Tr. 356-357.
The district court rejected petitioner’s
contentions and denied the motion.
Id. at 353-356, 368-370.
The jury found petitioner guilty on all counts.
A5.
9/13/2016
Pet. App.
The district court sentenced petitioner to 30 months of
imprisonment,
consisting
of
concurrent
six-month
terms
of
imprisonment on each of the false-loan-application counts, and a
statutorily mandated consecutive 24-month term of imprisonment on
the aggravated-identity-theft count.
Judgment 3; see 18 U.S.C.
1028A(a)(1).
3.
The court of appeals affirmed.
Pet. App. A1-A32.
On
appeal, petitioner renewed his contentions that the evidence was
insufficient to show that Drummond Bank was federally insured as
required by 18 U.S.C. 1014 and that he did not “use[]” Morris’s
name within the meaning of 18 U.S.C. 1028A.
Pet. App. A2-A3.
court of appeals rejected both contentions.
Id. at A1-A17.
The
5
a.
The court of appeals found that “[t]he government’s
evidence of insurance, while not overwhelming, was sufficient to
prove beyond a reasonable doubt that Drummond Community Bank was
FDIC-insured” at the time of petitioner’s false loan applications.
Pet. App. A8. It observed that, under circuit precedent, “at least
in some circumstances, evidence of either ‘prior’ or ‘subsequent’
insurance, even standing alone, can be adequate proof of coverage
at the time of the offense.”
Id. at A9; see id. at A8-A9 (citing
Cook v. United States, 320 F.2d 258, 259 (5th Cir. 1963). 2
And it
reasoned that the 1990 FDIC certificate provided “evidence
* * *
of
‘prior
existence’”
of
insurance
coverage;
that
Claussen’s
testimony that Drummond Bank was insured in 2016 provided evidence
of “‘subsequent existence’” of such coverage; and that Claussen’s
testimony that the bank’s FDIC certificate is not periodically
renewed “provide[d] additional evidence -- beyond mere prior and
subsequent existence -- that Drummond [Bank] was insured in 2013
and 2014,” particularly given that Claussen “had spent 25 years at
the small bank[] and was therefore likely to be familiar with its
administration and operations.”
The
court
of
appeals
Id. at A10.
determined
that
“[c]oupled with the ‘universal presumption
this
* * *
evidence
--
that all banks
are federally insured,’” and “viewing the proof in the light most
Fifth Circuit decisions issued prior to October 1, 1981,
are binding precedent in the Eleventh Circuit. See Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2
6
favorable to the government” -- sufficiently supported the jury’s
finding that “Drummond [Bank] was insured by the FDIC on the dates
of [petitioner’s] offenses.”
Pet. App. A10-A11 (quoting United
States v. Maner, 611 F.2d 107, 110 (5th Cir. 1980)).
The court
clarified that, by referring to a “‘universal presumption
* * *
that all banks are federally insured,’” it did not mean that it
“t[ook] official notice of a disputed fact,” but instead merely
“acknowledge[d] the state of the world -- an exercise that is
necessarily part of any review of the reasonableness of a jury's
decision.”
Id. at A10 & n.4 (citation omitted).
At the same time,
the court issued a “warning to federal prosecutors” to “do better”
in future cases and to avoid this “irritatingly familiar” issue by
submitting more conclusive evidence that a bank is federally
insured.
Id. at A2.
b.
The court of appeals also rejected petitioner’s separate
contention that Section 1028A’s prohibition on “us[ing]” the means
of identification of another without lawful authority is limited
to “impersonat[ing] [the victim] or otherwise act[ing] on his
behalf.”
Pet. App. A12 (citation omitted).
The court “f[ound]
[it]self in agreement” with the Sixth Circuit’s recent decision in
United States v. Michael, 882 F.3d 624 (2018), which “held that a
pharmacist
had
‘used’
a
doctor’s
and
patient’s
‘means
of
identification’ -- even though he impersonated neither -- when he
included
the
doctor’s
National
Provider
Identifier
and
the
7
patient’s name and birthdate on a fraudulent insurance claim.”
Pet. App. A12.
The court of appeals cited three principal reasons supporting
that determination.
Pet. App. A12-A16.
First, the court observed
that the plain meaning of the verb “use” is “to convert [an object]
to one’s service; to avail oneself of it; or to employ it.”
at
A13
(brackets
and
citation
omitted).
Because
Id.
petitioner
“‘employed’ Morris’s name in order to procure a bank loan, and
thereby
‘convert[ed]’
conduct came
within
Morris’s
that plain
name
‘to
[his]
meaning.
service,’”
Ibid.
(brackets
his
in
original).
Second, the court of appeals found that confining Section
1028A
to
impersonations
would
contravene
the
“[s]tatutory
context.”
Pet. App. A14.
The court explained that Section 1028A
“criminalizes the knowing and unauthorized use of a means of
identification ‘during and in relation to’ certain enumerated
felonies,” and that the “‘during and in relation to’ language
connotes causation” of the predicate felonies.
omitted).
Ibid. (citation
In this case, the court explained, “forging Morris’s
name to bolster [petitioner’s] loan application facilitated” the
bank fraud.
Ibid.
Third, the court of appeals observed that, in prior decisions
addressing other criminal statutes, this Court and others have
similarly “found the word ‘use’
* * *
to entail employing or
converting an object to one’s service.”
Pet. App. A15 (citing,
8
inter alia, United States v. Castleman, 572 U.S. 157, 170-171
(2014) (“[T]he word ‘use’ [in 18 U.S.C. 922(g)(9)] conveys the
idea
that
the
thing
used
* * *
has
been
made
the
user’s
instrument.” (citation omitted))).
The court of appeals explained that it is irrelevant that
petitioner did “not take anything from Morris nor did he obligate
Morris to do anything.”
true
owner,”
the
§ 1028A(a)(1).”
Pet. App. A16.
court
Ibid.
“[H]arm to the identity’s
observed,
“isn’t
The
also
court
an
element
rejected
of
(ibid.)
petitioner’s assertion that, according to him, his use of Morris’s
means of identification did not influence the bank’s decision to
approve the loan.
“[R]eliance,” the court explained, is not
required under Section 1028A(a)(1).
c.
Ibid.
Judge Tjoflat dissented, on the view that the evidence
was insufficient to support the jury’s finding that the bank was
FDIC-insured, see Pet. App. A18-A32.
He did not express any
disagreement with the court’s interpretation of the term “use[]”
in the aggravated-identity-theft statute.
ARGUMENT
Petitioner contends (Pet. 7-10) that the trial evidence was
insufficient to establish that the bank to which he repeatedly
submitted
fraudulent
loan
applications
was
federally
insured.
Petitioner separately contends (Pet. 10-14) that his use of the
name and forged signature of another person on the contract that
he submitted to the bank did not constitute a “use[], without
9
lawful authority, [of the] means of identification of another
person” within the meaning of 18 U.S.C. 1028A(a)(1).
The court of
appeals correctly rejected both contentions, and its decision does
not conflict with any decision of this Court or of any other court
of appeals.
This Court has repeatedly denied petitions for writs
of certiorari presenting arguments similar to both of petitioner’s
contentions in this case.
See Ayewoh v. United States, 565 U.S.
836 (2011) (No. 10-10422) (sufficiency of evidence that bank is
federally insured); Hall v. United States, 562 U.S. 1223 (2011)
(No. 10-6878) (same); El-Ghazali v. United States, 549 U.S. 1055
(2006) (No. 06-5616) (same); Smith v. United States, 525 U.S. 1020
(1998) (No. 98-5053) (same); Warren v. United States, 519 U.S. 831
(1996) (No. 95-8905) (same); Gatwas v. United States, 140 S. Ct.
149
(2019)
(No. 18-9019)
(meaning
of
“use”
in
18
U.S.C.
1082A(a)(1)); Bercovich v. United States, 136 S. Ct. 799 (2016)
(No. 15-370) (same); Otuya v. United States, 571 U.S. 1205 (2014)
(No. 13-6874) (same).
1.
evidence
federally
The same result is warranted here.
The court of appeals correctly determined that the trial
was
sufficient
insured
at
to
the
establish
that
time
petitioner’s
applications in 2013 and 2014.
of
Drummond
Pet. App. A5-A11.
Bank
false
was
loan
That factbound
determination does not warrant further review.
a.
“[E]vidence is sufficient to support a conviction if,
‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
10
essential elements of the crime beyond a reasonable doubt.’”
Coleman v. Johnson, 566 U.S. 650, 654 (2012) (per curiam) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
contention
that
the
evidence
of
Drummond
To prevail on his
Bank’s
FDIC-insured
status was insufficient to support the jury’s guilty verdict on
the false-loan-application counts under 18 U.S.C. 1014, petitioner
accordingly bore the burden of demonstrating that, viewing the
evidence in the light most favorable to the government, no rational
factfinder could have found that fact beyond a reasonable doubt.
The court of appeals correctly found that petitioner cannot satisfy
that standard.
As the court of appeals observed, the trial evidence here
included
a
showing
of
petitioner’s
crime,
plus
occurred in between.
FDIC
coverage
evidence
Pet. App. A10.
both
before
suggesting
that
and
after
no
change
An FDIC certificate from the
time Drummond Bank was initially chartered in 1990 showed the
bank’s prior insured status, and testimony that the bank was
insured at the time of trial in 2016 showed its subsequent insured
status.
Ibid.
In
addition,
testimony
of
the
bank’s
chief
underwriter -- “who had spent 25 years at the small bank, and was
therefore likely to be familiar with [the bank’s] administration
and operations” -- showed that the bank’s insured status was not
“renewed ‘every so often.’”
Ibid.
The court found that the
evidence, taken together, sufficed to enable a reasonable jury to
11
find that the bank was insured at the time of petitioner’s 2013
and 2014 offenses.
Ibid.
That finding accords with the decisions reached by many courts
that have determined that, when the government simply establishes
that a bank is FDIC-insured at the time of trial, the jury has a
sufficient basis to conclude that the bank was insured at the time
the
charged
offense
took
place,
relatively close together.
provided
the
two
times
are
See, e.g., United States v. Ware,
416 F.3d 1118, 1121-1123 (9th Cir. 2005); United States v. Lewis,
260
F.3d
855,
855-856
(8th
Cir.
2001)
(same),
cert.
denied,
534 U.S. 1154 (2002); United States v. Nnanyererugo, 39 F.3d 1205,
1208 (D.C. Cir. 1994) (per curiam) (same), cert. denied, 514 U.S.
1113 (1995); United States v. Sliker, 751 F.2d 477, 484 (2d Cir.
1984) (same), cert. denied, 470 U.S. 1058, and 471 U.S. 1137
(1985); United States v. Knop, 701 F.2d 670, 672-673 (7th Cir.
1983) (same); United States v. Safley, 408 F.2d 603, 605 (4th Cir.)
(same), cert. denied, 395 U.S. 983 (1969); cf. United States v.
Ali, 266 F.3d 1242, 1244 & n.3 (9th Cir. 2001) (finding that an
FDIC
certificate
that
antedated
the
offense
by
“more
than
a
decade,” combined with testimony that the bank was insured at the
time of trial, was insufficient to show that the bank was FDICinsured
at
the
time
of
the
offense).
As
noted
above,
the
government had even more evidence than that here.
Petitioner contends (Pet. 8-9) that the court of appeals
improperly applied a “‘universal presumption’” that banks are
12
federally insured.
* * *
In his view, such a presumption “reverse[s]
the presumption of innocence and excuses the government’s
burden of proof.”
Pet. 9.
That contention is mistaken.
The court
appeals made clear that it was not “taking official notice of a
disputed fact so much as acknowledging the state of the world -an
exercise
that
is
necessarily
part
reasonableness of a jury’s decision.”
of
any
review
of
the
Pet. App. A10 n.4.
The
jury was not required to assume that banks in general, or this
bank in particular, would have any significant likelihood of
flitting in and out of FDIC coverage.
In recognizing this, the
court simply gave effect to the well-established principle that
juries can “very properly exercise their own judgment and apply
their own knowledge and experience in regard to the general subject
of inquiry.”
Head v. Hargrave, 105 U.S. 45, 51 (1882) (citation
omitted).
b.
Petitioner contends (Pet. 8) that this case should be
“controlled by” the Fifth Circuit’s decision in United States v.
Platenburg, 657 F.2d 797 (5th Cir. Unit A Oct. 1981).
But
petitioner
that
does
not
identify
any
inconsistency
between
decision and the decision below.
In Platenburg, the government did not present any evidence in
its case in chief that the bank in question was insured by the
FDIC.
After the defendant moved for a judgment of acquittal, the
district
court
allowed
the
government
to
reopen
its
case
to
introduce a certificate of insurance issued seven years before the
13
charged offenses.
657 F.2d at 798-800.
Because the government
had not presented a witness who could testify about the certificate
or the bank’s FDIC-insured status, the Fifth Circuit deemed the
evidence insufficient, and reversed the conviction.
Id. at 800.
Here, in contrast the government introduced evidence that
Drummond Bank was insured both when it was first chartered in 1990
and in 2016, as well as testimony indicating that the bank’s FDIC
certificate was not subject to periodic renewal.
argument
thus
amounts
to
his
disagreement
with
Petitioner’s
the
court
of
appeals’ evaluation of the sufficiency of the evidence of FDICinsured status in this particular case.
But that factbound, case-
specific determination does not warrant this Court’s review.
See
United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not
grant
* * *
certiorari to review evidence and discuss specific
facts.”).
2.
Petitioner separately contends (Pet. 10-14) that forging
the signature of another on a document does not constitute “use[]”
of that person’s name within the meaning of 18 U.S.C. 1028A(a)(1).
That contention lacks merit and does not warrant further review.
a.
Section 1028A(a)(1) requires a consecutive two-year term
of imprisonment for any person who, “during and in relation to any
felony
violation
enumerated
in
[Section
1028A(c)],
knowingly
transfers, possesses, or uses, without lawful authority, a means
of identification of another person.”
18 U.S.C. 1028A(b).
18 U.S.C. 1028A(a)(1); see
Here, petitioner did “not dispute that he
14
‘knowingly’ signed Morris’s name to [a] contract”; that Morris’s
name and signature on the forged contract constituted “a means of
identification of another person”; and that his conduct occurred
“‘during and in relation to’” one of the felonies enumerated in
Section 1028A(c) -- specifically, making false statements on a
loan application, in violation of 18 U.S.C. 1014.
A11-A12.
In addition, petitioner “admit[ted] that he signed
Morris’s name ‘without lawful authority.’”
18 U.S.C.
Pet. App.
1028A(a)(1)).
Petitioner
Id. at A12 (quoting
disputed
only
whether
he
“‘use[d]’ Morris’s identification,” contending that he had not
done so “because he only signed Morris’s name, and didn’t try to
impersonate Morris or otherwise act on his behalf.”
Ibid.
court of appeals correctly rejected that contention.
The
Id. at
A12-A16.
Nothing in Section 1028A(a)(1)’s text or context confines the
term “uses” to stealing or assuming an identity.
See Pet. App.
A12-A16; accord United States v. Michael, 882 F.3d 624, 626-627
(6th Cir. 2018); United States v. Gatwas, 910 F.3d 362, 365 (8th
Cir. 2018) (citing cases), cert. denied, 140 S. Ct. 149 (2019).
The most natural reading of “to ‘use’ an object” is “‘[t]o convert
[it] to one’s service,’” “‘to avail oneself of [it],’” or “‘to
employ [it].’”
Pet. App. A12-A13 (citation omitted; brackets in
original); see also Michael, 882 F.3d at 626 (same). That ordinary
meaning of “use” is not limited to theft or impersonation of
another person’s identity.
See Pet. App. A13; accord Michael,
15
882 F.3d at 626-627; Gatwas, 910 F.3d at 365-366.
In any event,
whatever the precise scope of “use,” the term readily encompasses
petitioner’s conduct in this case:
affixing the name and forged
signature
contract
of
another
to
a
fake
to
support
a
loan
not
take
application, all undisputedly contrary to law.
b.
Petitioner’s contrary contentions lack merit.
Petitioner
contends
(Pet.
12-13)
that
he
“did
anything from Morris,” “obligate Morris to do anything,” or cause
“damage[]” to Morris’s credit.
But, as the court of appeals
correctly noted, “harm to the identity’s true owner isn’t an
element of § 1028A(a)(1).” Pet. App. A16. Petitioner acknowledges
as much in this Court, noting (Pet. 12) that “it is well settled
that actual harm need not be suffered by a victim of Aggravated
Identity Theft.”
Petitioner additionally asserts (Pet. 12) that his use of
Morris’s name was “incidental” to the fraud because, according to
him, Drummond Bank “did not rely upon the signature in extending
the loan.”
Pet. i; see also Pet. 9.
any
evidence
record
to
support
Petitioner does not identify
the
factual
premise
of
that
assertion. In any event, even assuming that petitioner’s assertion
were factually correct, it lacks merit.
This Court “ordinarily
resist[s] reading words or elements into a statute that do not
appear on its face.”
Bates v. United States, 522 U.S. 23, 29
(1997); see, e.g., Brogan v. United States, 522 U.S. 398, 406
(1998); United States v. Wells, 519 U.S. 482, 490-493 (1997).
16
Petitioner identifies no basis in the text, structure, or history
of 18 U.S.C. 1028A(a)(1) supporting the imposition of an atextual
reliance requirement of the sort he urges, and the court of appeals
correctly rejected it.
c.
See Pet. App. A16.
Petitioner suggests (Pet. 10-12) that the decision below
conflicts with the decisions of the First and Sixth Circuits
interpreting
the
scope
of
the
term
“us[ing]”
1028A(a)(1).
That assertion lacks merit.
in
18
U.S.C.
The courts of appeals
broadly agree on the conduct covered by that phrase. To the extent
that any tension exists in the language of courts of appeals’
opinions, it is not implicated in this case.
Courts of appeals, including the First and Sixth Circuits,
have
“universally
rejected
th[e]
argument”
that
Section
1028A(a)(1) “require[s] actual theft or misappropriation of the
means
of
788 F.3d
identification.”
1183,
1185
(9th
United
Cir.)
States
(per
v.
curiam),
Osuna-Alvarez,
cert.
denied,
136 S. Ct. 283 (2015); see United States v. Lumbard, 706 F.3d 716,
721-725 (6th Cir. 2013); United States v. Ozuna-Cabrera, 663 F.3d
496, 498-501 (1st Cir. 2011), cert. denied, 566 U.S. 950 (2012);
see also United States v. Etenyi, 720 Fed. Appx. 445, 454-455 (10th
Cir. 2017); United States v. Mahmood, 820 F.3d 177, 187-188 (5th
Cir.), cert. denied, 137 S. Ct. 122 (2016); United States v.
Zitron, 810 F.3d 1253, 1260 (11th Cir. 2016) (per curiam); United
States v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013), cert. denied,
571 U.S. 1205 (2014); United States v. Reynolds, 710 F.3d 434, 436
17
(D.C. Cir. 2013); United States v. Retana, 641 F.3d 272, 274-275
(8th
Cir.
2011).
“Numerous
prior
decisions
have
upheld
§ 1028A(a)(1) convictions where the defendant neither stole nor
assumed the identity of the other person.”
365.
Gatwas, 910 F.3d at
Petitioner does not identify any court of appeals that has
adopted his narrow interpretation of the term “use[]” in Section
1028A(a)(1) to encompass only theft of or assuming another person’s
identity.
Multiple courts have expressly rejected it. See id. at
365-366; Michael, 882 F.3d at 626-629.
Petitioner errs in contending (Pet. 10-11) that the decision
below
is
inconsistent
Circuits.
with
decisions
of
the
First
and
Sixth
Petitioner cites (ibid.) United States v. Berroa,
856 F.3d 141 (1st Cir.), cert. denied, 138 S. Ct. 488 (2017), which
found that the mere fact that defendants had fraudulently obtained
licenses for medical practice, and thus were not validly licensed
to issue prescriptions, did not mean that they committed aggravated
identity theft in violation of Section 1028A(a)(1) by listing their
actual patients’ names on the prescriptions they issued to those
patients.
See id. at 155-157.
In so doing, the court of appeals
stated that it “read the term ‘use’ to require that the defendant
attempt to pass him or herself off as another person or purport to
take some other action on another person’s behalf.”
156-157.
Id. at
Here, however, by submitting a fraudulent contract that
bore Morris’s forged signature, petitioner plainly “purport[ed] to
take
* * *
action on [Morris’s] behalf” -- i.e., feign Morris’s
18
assent to a contract -- which would satisfy the First Circuit’s
formulation in Berroa.
Ibid.
As the First Circuit’s post-Berroa decision in United States
v. Tull-Abreu, 921 F.3d 294 (2019), cert. denied, No. 19-5975 (Oct.
15, 2019), makes clear, decisions of other circuits that have
“‘uph[eld] § 1028A(a)(1) convictions where the defendant neither
stole nor assumed the identity of the other person’” are “[i]n
accord with Berroa.”
Id. at 300 n.3 (quoting Gatwas, 910 F.3d at
365 and citing United States v. White, 846 F.3d 170, 177 (6th
Cir.), cert. denied, 137 S. Ct. 2203 (2017), and Reynolds, 710 F.3d
at 435-436).
In Tull-Abreu, the First Circuit found that the
defendant, a doctor, had “‘purported to take some other action on
another person’s behalf,’ as set forth in Berroa,” by filing
fraudulent
claims
for
Medicare
reimbursement
that
listed
his
patients’ identifying information, even though he did not steal
that information or assume his patients’ identities.
300 (brackets omitted).
conduct
of
forging
a
912 F.3d at
In asserting that the even more direct
signature
on
a
contract
is
not
“use,”
petitioner thus urges a more restrictive meaning of the term “uses”
than the First Circuit articulated in Berroa, as further clarified
in Tull-Abreu.
Petitioner also cites (Pet. 11) the Sixth Circuit’s decision
in United States v. Miller, 734 F.3d 530 (2013), which construed
the term “uses” not to reach the conduct of a defendant who had
lied about what two individuals had done in securing a loan from
19
a bank.
But as petitioner acknowledges (Pet. 12), the Sixth
Circuit has since clarified in its subsequent decision in United
States v. Michael, supra, that it construes Section 1028A(a)(1) to
encompass conduct by defendants who use a means of identification
“to further or facilitate the [enumerated felony].”
882 F.3d at 628.
Michael,
Michael specifically rejected reading Section
1028A(a)(1) to require that a defendant “impersonate someone else”
or “assume[] another’s identity.”
Id. at 628-629.
Sixth
Miller
“support[ed]
interpretation” that it adopted in Michael.
Id. at 627. 3
Circuit
d.
Even
explained
if
the
that
question
presented
Indeed, the
otherwise
th[e]
warranted
further review, this case would be an unsuitable vehicle to address
it.
Whatever the precise outer limits of the phrase “uses
* * *
[the] means of identification of another person” in 18 U.S.C.
1028A(a)(1), petitioner’s forging of Morris’s signature on a fake
contract to support a loan application falls comfortably within
its scope.
Further review is unwarranted.
The decision below also does not conflict with United
States v. Hong, 938 F.3d 1040 (9th Cir. 2019), which was decided
after the petition for a writ of certiorari was filed. In Hong,
the defendant “provided massage services to patients to treat their
pain,” but then “participated in a scheme where that treatment was
misrepresented as a Medicare-eligible physical therapy service.”
Id. at 1051.
The Ninth Circuit found that the defendant’s
inclusion of the patients’ information in the benefits claims he
submitted did not satisfy 18 U.S.C. 1028A. 938 F.3d at 1050. As
noted above, petitioner in this case did not merely include
Morris’s name as part of a fraudulent submission; he forged
Morris’s signature, thus purporting to assent to the contract on
Morris’s behalf.
3
20
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
FRANCESCO VALENTINI
Attorney
DECEMBER 2019
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