USA v. Robert Alexander

Filing

FILED OPINION (DOROTHY W. NELSON, A. WALLACE TASHIMA and CONSUELO M. CALLAHAN) AFFIRMED. Judge: AWT Authoring,. FILED AND ENTERED JUDGMENT. [8732114]

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
ROBERT KENT ALEXANDER,
Defendant-Appellant.

No. 12-30156
DC No.
3:11-cr-05352
RBL-1
OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
April 9, 2013—Seattle, Washington
Filed August 6, 2013
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima

Page: 1 of 11

Case: 12-30156

2

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER
SUMMARY*

Criminal Law
Affirming a conviction for aggravated identity theft, the
panel held that a victim’s true name and banking numbers
appearing on a counterfeit check are a “means of
identification” for purposes of 18 U.S.C. §§ 1028A,
1028(d)(7).

COUNSEL
Alan Zarky (argued) and Colin Fieman, Assistant Federal
Public Defenders, Tacoma, Washington, for DefendantAppellant.
Michael S. Morgan (argued), Assistant United States
Attorney; Jenny A. Durkan, United States Attorney for the
Western District of Washington, Seattle, Washington, for
Plaintiff-Appellee.

OPINION
TASHIMA, Circuit Judge:
We must decide whether a counterfeit paper check that
bears a victim’s true name, bank account number, and routing
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 11

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

Page: 3 of 11

3

number is a “means of identification of another person” for the
purposes of the aggravated identity theft statute, 18 U.S.C.
§§ 1028A, 1028(d)(7)). The district court answered in the
affirmative and returned a judgment of conviction. We have
jurisdiction under 28 U.S.C. § 1291 and, for the following
reasons, we affirm.
I.
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.
Alexander was charged with aggravated identity theft in
violation of 18 U.S.C. § 1028A (count 1), bank fraud in

Case: 12-30156

4

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

violation of 18 U.S.C. § 1344 (count 2), passing a forged or
altered check in violation of 18 U.S.C. § 513(a) (count 3), and
possessing stolen mail in violation of 18 U.S.C. § 1708 (count
4). He pleaded guilty to counts 2, 3, and 4. A bench trial was
held on count 1, which charged that Alexander “knowingly
used, without lawful authority, a means of identification of
another person, to wit, the name and Peninsula Credit Union
account number of M.S. and V.S., during and in relation to a
felony listed in . . . Section 1028A(c), to wit, bank fraud, in
violation of . . . Section 1344.” Alexander stipulated to the
relevant facts but moved for a judgment of acquittal on the
grounds that his conduct did not amount to a violation of
§ 1028A. He argued that, as a matter of statutory
interpretation, the passing of a stolen check cannot form the
basis of an aggravated identity theft conviction. He noted that
§ 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), Alexander
argued that the names and numbers on his counterfeit check
were, as a matter of law, not a “means of identification.”
The district court rejected Alexander’s proposed reading
of the statute and, following a one-day bench trial, Alexander
was convicted of aggravated identity theft. The court
sentenced Alexander to a total of seventy-two months’
imprisonment followed by five years of supervised release and
$158.06 of restitution.

Page: 4 of 11

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

Page: 5 of 11

5

II.
We review de novo the district court’s interpretation of a
criminal statute. See United States v. Keyser, 704 F.3d 631,
640–41 (9th Cir. 2012). Our analysis begins with the plain
language of the statute. United States v. Williams, 659 F.3d
1223, 1225 (9th Cir. 2011). “If the plain meaning of the
statute is unambiguous, that meaning is controlling and we
need not examine legislative history as an aide to
interpretation unless the legislative history clearly indicates
that Congress meant something other than what it said.” Id.
(internal quotation marks and citation omitted).
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.”
A.
Aggravated identity theft involves the knowing transfer,
possession, or use of “a means of identification of another
person.” Id. § 1028A(a)(1). The statute defines a “means of
identification” as
any name or number that may be used, alone
or in conjunction with any other information,
to identify a specific individual, including any–

Case: 12-30156

6

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER
(A) name, social security number, date of
birth, official State or government issued
driver’s license or identification number, alien
registration number, government passport
number, employer or taxpayer identification
number;
(B) unique biometric data, such as
fingerprint, voice print, retina or iris image, or
other unique physical representation;
(C) unique electronic identification
number, address, or routing code; or
(D) telecommunication identifying
information or access device (as defined in
section 1029(e))[.]

Id. § 1028(d)(7). Subsection (D) of the aggravated identity
theft statute cross-references the access-device fraud statute,
which defines “access device” as
any card, plate, code, account number,
electronic serial number, mobile identification
number, personal identification number, or
other telecommunications service, equipment,
or instrument identifier, or other means of
account access that can be used, alone or in
conjunction with another access device, to
obtain money, goods, services, or any other
thing of value, or that can be used to initiate a
transfer of funds (other than a transfer
originated solely by paper instrument)[.]

Page: 6 of 11

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

Page: 7 of 11

7

Id. § 1029(e)(1) (emphasis added). Alexander argues that his
counterfeit check effected a “transfer originated solely by
paper instrument” under the parenthetical language of
§ 1029(e)(1); we assume, without deciding, that he is correct.1
According to Alexander, by incorporating the access-device
definition from § 1029(e)(1) into § 1028(d)(7)(D), Congress
excluded check forgery from the crime of aggravated identity
theft. We decline to adopt Alexander’s grossly atextual
reading of the statute.
It is plain from the language of § 1028(d)(7) that although
every access device is a means of identification, not all means
of identification are access devices. The term “access device”
appears in § 1028(d)(7)(D), one of four subsections that
illustrate the sorts of “name[s] or number[s]” that meet the
definition of a “means of identification.” Subsections (A)
through (D) are connected by the disjunctive “or,” indicating
that no single subsection is necessary to the definition.2
Moreover, subsections (A) through (D) are preceded by the
word “including,” which suggests that the list is illustrative
rather than exhaustive. See United States v. Wyatt, 408 F.3d
1257, 1261 (9th Cir. 2005). Thus, whether Alexander’s

1

Accordingly, we do not reach the Government’s alternative argument
that the transaction was actually an electronic funds transfer.
2

See United States v. Romero-Martinez, 443 F.3d 1185, 1189 (9th Cir.
2006); see also United States v. Lewis, 443 F. App’x 493, 495–96 (11th
Cir. 2011) (per curiam) (“[A]n ‘access device’ is only one of several
items that Congress listed, in the disjunctive, as a ‘means of
identification.’ Thus, simply failing to satisfy the definition of ‘access
device’ does not end the analysis with respect to whether a signature on
a stolen check is a ‘means of identification.’” (citation omitted)), cert.
denied, 132 S. Ct. 2742 (2012).

Case: 12-30156

8

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

counterfeit check was an “access device” does not answer the
question whether the names and banking numbers on his
counterfeit check were a “means of identification.” For that
answer, we must look to § 1028(d)(7)’s introductory
paragraph, as well as the examples provided in subsections (A)
through (C).
Alexander does not dispute that his counterfeit check
contained the Snows’ names, bank account number, and
routing number. “[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.
B.
Perhaps recognizing that his proposed reading of the
statute runs headlong into some very obvious textual
problems, Alexander argues that treating a victim’s name and
banking numbers on a counterfeit check as a “means of
identification” would render § 1029(e)(1) – the provision that
excludes paper-instrument transfers from the definition of an
access device – a nullity. He asks us to “give effect” to
§ 1029(e)(1)’s paper-instrument exclusion by holding that the
names and numbers on his counterfeit check were not a
“means of identification.” The argument suffers a number of
flaws.

Page: 8 of 11

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

Page: 9 of 11

9

As an initial matter, Alexander’s nullity argument rests on
a logical fallacy. A transfer originated solely by paper
instrument is not an access device at all; as such,
§ 1028(d)(7)(D) has no application.3 Stated differently, the
only “effect” of the paper-instrument exclusion is in defining
the contours of the term “access device.” See id.
§ 1029(e)(1). Assuming, for the sake of argument, that
Alexander’s counterfeit check was not an “access device”
because it effected a “transfer originated solely by paper
instrument,” the access-device definition – and its paperinstrument exclusion – simply play no further role in the
analysis. Id. We fail to see how a subsection that has no
application to begin with can be rendered a nullity.
In any event, our interpretation of § 1028(d)(7) does not
render § 1029(e)(1)’s paper-instrument exclusion a nullity.
That exclusion continues to limit the scope of conduct
prohibited by the access-device fraud statute. See id.
§ 1029(e)(1). And the definition of an “access device”
continues to have practical significance in other contexts. See,
e.g., U.S.S.G. § 2B1.1(b)(11) (2012) (imposing a two-level
sentencing increase for select offenses involving “the
production or trafficking of any . . . unauthorized access
device or counterfeit access device”); Id. cmt. 9(A) (defining
“counterfeit access device” and “unauthorized access device”
by the meanings given in § 1029(e)). Alexander offers no
persuasive argument to the contrary.

3

The only other example in subsection (D) – “telecommunication
identifying information” – is not at issue in this case. 18 U.S.C.
§ 1028(d)(7)(D).

Case: 12-30156

10

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER
C.

Finally, Alexander argues that treating the victims’ names
and banking numbers on a counterfeit check as a “means of
identification” will upset the state-federal balance in the
prosecution of theft offenses by federalizing check forgery.
Again, Alexander’s argument is foreclosed by the plain
statutory language. To the extent that a forged check contains
a victim’s true name, bank account number, and routing
number – personal data that easily “may be used . . . to
identify a specific individual” – such a check plainly and
comfortably fits within the broad language of § 1028(d)(7)
(“any name or number”) as well as the specific language of
subsections (A) (“name”) and (C) (“routing code”).
We have previously observed that, “[b]y using the word
‘any’ to qualify the term ‘name,’ the [aggravated identity
theft] statute reflects Congress’s intention to construct an
expansive definition.” United States v. Blixt, 548 F.3d 882,
887 (9th Cir. 2008). In Blixt, we held that “forging another’s
signature constitutes the use of that person’s name and thus
qualifies as a ‘means of identification’ under 18 U.S.C.
§ 1028A.” Id. at 886. We explained that “[c]ategorically
carving out a signature from th[e] definition [of a means of
identification] . . . would impermissibly narrow the definition
of ‘name’ in the statute.” Id. at 887. Alexander’s proposed
construction of the statute poses a similar problem.
Categorically carving out paper-instrument transfers from the
definition of a means of identification would impermissibly
narrow the broad introductory language of § 1028(d)(7),
which defines “means of identification” in terms of the nature
of the personal data – “any name or number” – rather than the
medium on which it is conveyed (e.g., paper instruments).

Page: 10 of 11

Case: 12-30156

08/06/2013

ID: 8732114

DktEntry: 33-1

UNITED STATES V . ALEXANDER

Page: 11 of 11

11

Congress knows how to exclude paper-instrument
transfers from the ambit of a criminal statute. They did so in
1984, when they defined the term “access device” as part of
the Credit Card Fraud Act. See Comprehensive Crime
Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976,
2183–84 (codified at 18 U.S.C. § 1029). But in 1998, when
it defined the term “means of identification” as part of the
Identity Theft and Assumption Deterrence Act, it painted with
a broader brush. See Pub. L. No. 105-318, 112 Stat. 3007,
3008–09 (1998) (codified at 18 U.S.C. § 1028(d)). We
presume that such drafting decisions are deliberate. See
United States v. Johnson, 680 F.3d 1140, 1144 (9th Cir.
2012) (“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(quoting Kucana v. Holder, 558 U.S. 233 (2010) (internal
quotation marks omitted)).
The judgment of conviction is AFFIRMED.