UNITED STATES v. LaFAIVE
Anna LaFaive assumed the identity of her deceased sister, opened checking accounts in her name using counterfeited checks, and withdrew nearly $65,000 before being apprehended. A jury convicted her of two counts of bank fraud and two counts of aggravated identity theft. On appeal, LaFaive challenges her conviction under 18 U.S.C. § 1028A for aggravated identity theft and takes issue with the procedure used by the district court in calculating her sentence
LaFaive made purchases totaling nearly $5,000 at a GameStop and Best Buy from these new checking accounts. She also withdrew $60,000 in cash from a Fifth Third Bank in Ohio. Authorities eventually found LaFaive living in Harper Woods, Michigan, where she was arrested in late June 2007.
II. Analysis
LaFaive argues that she cannot be convicted of aggravated identity theft under § 1028A because that statute does not criminalize the use of a deceased person's identity. She also argues that the district court improperly considered the factors in 18 U.S.C. § 3553(a) to enhance her sentence before adding the mandatory 24-month consecutive sentence under § 1028A(a)(1) to the total guideline calculation. We consider each argument in turn.
Section 1028A(a) provides:
(1) In general.-Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
[T]he adjectives “living” and “deceased” may both properly be used to narrow, that is to make more specific, the meaning of the noun “person.” The word “person” thus encompasses both the living and the deceased, and each of such persons possesses an identity which is susceptible to misappropriation. It is reasonable to assume that Congress considered it unnecessary to distinguish between theft of the identity of a deceased person as opposed to a living person because the word “person” is broad enough to cover both.
We agree that the common usage of the word “person” includes both living and deceased individuals. Because there is nothing in § 1028A(a)(1) that would naturally limit the definition of “person” to just the living, cf. Maciel-Alcala, 2010 WL 2836992, at *6 (noting that the use of “person” in § 1028A(b) is limited to living persons, not because of the definition of the word “person,” but because the rest of the language of that provision logically limits its application to living persons), we conclude that the provision's prohibition on using the identification of “another person” includes the identification of both living and deceased persons.
we agree with the other circuits that have concluded that limiting “person” in subsection (a)(2) to a living person works an “illogical,” “absurd,” and “nonsensical” result. See Maciel-Alcala, 2010 WL 2836992, at *6; Kowal, 527 F.3d at 747; Jimenez, 507 F.3d at 20. Because the word “person” in subsection (a)(2) must include living and deceased persons, the word “person” in subsection (a)(1) must also include living and deceased persons.
We also note that we are not the only court to decide post-Flores-Figueroa that § 1028A covers the use of the identity of both living and deceased persons. See Maciel-Alcala, 2010 WL 2836992, at *6; United States v. Parks, Nos. H-06-226, H-09-1586, 2010 WL 1994186, at *7 n. 5 (S.D.Tex. May 17, 2010); United States v. Davis, No. 8:09-CR-0047, 2009 WL 1476459, at *3 n. 5 (N.D.N.Y. May 27, 2009).
Moreover, theft of a deceased person's identification is not a “victimless crime.” Id . at *8. As noted earlier, the plain language of § 1028A shows that Congress intended the statute to have broad coverage, and our conclusion that “person” includes both the living and deceased comports with that intention.
III. Conclusion
18 U.S.C. § 1028A(a)(1) criminalizes the misuse of another person's identity, whether that other person is living or deceased. The district court, therefore, did not plainly err in entering the jury's conviction of LaFaive for violating that statute. The district court also did not plainly err in calculating or imposing LaFaive's sentence. Accordingly, we Affirm LaFaive's conviction and sentence.
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United States v. Zuniga-Arteaga (May 21, 2012)
Graciela Zuniga-Arteaga appeals her conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Ms. Zuniga-Arteaga argues that § 1028A(a)(1) cannot be applied to her conduct because that provision does not cover the theft of a person s identity when that person is no longer living.
In December 2010, Ms. Zuniga-Arteaga waived a jury trial. She also filed a Motion for Judgment of Acquittal under Federal Rule of Criminal Procedure 29, arguing that § 1028A(a)(1) does not apply because MSG is deceased.
The bench trial was conducted on December 20, 2010. Nine days later, the district court filed its Bench Trial Verdict and Order Denying Motion for 4 Judgment of Acquittal, concluding that § 1028A(a)(1) applies to the identities of the dead, and convicting Ms. Zuniga-Arteaga on both counts of the indictment. On March 21, 2010,
Section 1028A(a)(1) states: In general. Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years. 18 U.S.C. § 1028A(a)(1) (emphasis added). Ms. Zuniga-Arteaga argues that the term person in the statute refers only to the living, and does not cover theft of the identity of a person who has died.
Though this issue is one of first 5 impression for this Court, we now follow four circuits in holding that § 1028A(a)(1) punishes theft of the identity of any actual person, regardless of whether that person is still alive.
18 U.S.C. § 1028(d)(4). 10 that Congress intended the term person in § 1028A to include both living and dead individuals. The statute s purpose supports this interpretation of § 1028A(a)(1). As the Ninth Circuit observed, like the theft of living persons identities, theft of [deceased persons ] identities is not a victimless crime.
