USA v. Jason Reynold

Filing

OPINION filed [1427299] (Pages: 5) for the Court by Judge Williams [11-3101]

USCA Case #11-3101

Document #1427299

Filed: 03/26/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2013

Decided March 26, 2013

No. 11-3101
UNITED STATES OF AMERICA,
APPELLEE
v.
JASON TODD REYNOLDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00087-1)
Gary E. Proctor argued the cause for appellant. On the
brief were William B. Purpura Jr. and Marta K. Kahn.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy
Curt, and Jonathan P. Hooks, Assistant U.S. Attorneys.
Elizabeth H. Danello, Assistant U.S. Attorney, entered an
appearance.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Jason Reynolds was
the chief financial officer of the National City Christian
Church in Washington, D.C. (The church is operated in part
through a National City Christian Church Foundation, but for
our purposes the two appear interchangeable and we will refer
only to the church.) In that capacity he swindled the church
out of more than $850,000, much of it through arranging an
increase in the church’s line of credit at Adams National
Bank.
Reynolds’s technique in increasing the line of credit led
to charges of “aggravated identity theft” under 18 U.S.C.
§ 1028A. The technique appears comparatively simple. As
chief financial officer he had access to digital versions of the
signatures of at least four of the church’s officers. He used
these to create a purported corporate resolution bearing the
officers’ signatures and approving the increased borrowing,
which resolution he then gave the bank.
A jury convicted Reynolds of four counts of aggravated
identity theft, one for each of the officers. It also found him
guilty of bank and wire fraud, making a false statement on a
loan application, four counts of tax evasion, and first-degree
fraud under District of Columbia law. Section 1028A calls for
a sentence of two years for each § 1028A violation. 18 U.S.C.
§ 1028A(a)(1).
Such sentences are generally to run
consecutively with sentences for other offenses, but may
sometimes (as here) run concurrently with sentences for other
§ 1028A violations. Id. § 1028A(b). On appeal, Reynolds
argues that under a proper construction of § 1028A there was
insufficient evidence to sustain his identity theft convictions;
he also argues that the district court made two erroneous

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evidentiary rulings. Only the identity theft claim calls for
discussion in a published opinion.
* * *
Reynolds contends that the government was required to
prove both that he stole the officers’ identity information and
that the officers suffered individual harm beyond that suffered
by the church. Because the government did not present
evidence on those points at trial, says Reynolds, his
convictions under § 1028A must be vacated. We review this
claim for plain error: although Reynolds asked the district
court for a judgment of acquittal on the § 1028A charges, his
motion did not raise these arguments. See United States v.
McCoy, 242 F.3d 399, 402 (D.C. Cir. 2001).
We begin of course with the statutory language, United
States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C. Cir.
2008), and if its meaning is plain and unambiguous as to the
disputed issue, that is where we stop, Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997); see also Connecticut Nat’l
Bank v. Germain, 503 U.S. 249, 253-54 (1992). Section
1028A reads in relevant part:
Whoever, during and in relation to any felony violation
enumerated in [18 U.S.C. § 1028A(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). The parties agree that Reynolds
committed a felony enumerated in § 1028A(c), and Reynolds
has abandoned on appeal his argument that a signature is not a
“means of identification.”

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This leaves Reynolds with statutory text that is clearly not
on his side. While he argues that § 1028A applies only to
“stolen” information, § 1028A(a)(1) explicitly covers a
defendant who “uses” a means of identification without lawful
authority. By contrast, two subsections of the immediately
preceding provision, which sets forth various other identityrelated fraud crimes, refer specifically to identity information
that has been “stolen.” See 18 U.S.C. § 1028(a)(2), (6).
To the extent that there is a textual hook for Reynolds’s
stolen-information argument, it is the requirement that the use
be “without lawful authority.” But “use[] . . . without lawful
authority” easily encompasses situations in which a defendant
gains access to identity information legitimately but then uses
it illegitimately—in excess of the authority granted. All
circuits to consider the question have agreed on the principle.
See, e.g., United States v. Lumbard, 706 F.3d 716, 725 (6th
Cir. 2013); United States v. Ozuna-Cabrera, 663 F.3d 496,
498-99 (1st Cir. 2011); United States v. Abdelshafi, 592 F.3d
602, 607-08 (4th Cir. 2010). Reynolds concedes that he
submitted the signature-bearing corporate resolution to the
bank “without obtaining the express permission of the
signature holders each time he used it,” Appellant’s Br. 10,
and thus without authority, let alone lawful authority. Thus
the statutory text seems to give Reynolds no hold.
Accordingly Reynolds turns to § 1028A’s title—
“aggravated identity theft”—and to isolated statements in the
legislative history referring to the stealing of information
through computer hacking and the like. The statutory text
being unambiguous, however, these tools cannot aid him. See
Connecticut Nat’l Bank, 503 U.S. at 253-54; Bhd. of R.R
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528
(1947). Moreover, even if the statute itself were less clear,
mention of particular examples in the legislative history—in
all probability chosen for their vividness, poignancy, and

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resonance with popular understandings—would provide no
ground for narrowing its reach. See Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 649 (1990). We therefore
reject Reynolds’s argument that § 1028A requires evidence
that the defendant stole the identity information at issue.
Reynolds’s second argument—that § 1028A applies only
where the individuals whose means of identification were
unlawfully used have suffered individual harm—has even less
statutory support. It rests solely on occasional comments in
the legislative history illustrating the types of harm that
violative behavior may cause—the sort of example that
proponents of a provision would naturally highlight. Again,
the statute is clear, and these examples supply no basis for
reading it narrowly. See id.
Because both Reynolds’s arguments lack merit, we find
no error—much less plain error—in the district court’s denial
of his motion for a judgment of acquittal on the § 1028A
charges.
* * *
The judgment of the district court is
Affirmed.

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