U.S. v. Mitchell

• Decision Date: 06 March 2008
• Docket Number: No. 06-5169.,06-5169.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwight Jose MITCHELL, a/k/a Marcus Jackson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

518 F.3d 230

UNITED STATES of America, Plaintiff-Appellee, v. Dwight Jose MITCHELL, a/k/a Marcus Jackson, Defendant-Appellant.

No. 06-5169.

United States Court of Appeals, Fourth Circuit.

Argued: December 6, 2007.

Decided: March 6, 2008.

ARGUED: Thomas Edward Vanderbloemen, Gallivan, White & Boyd, P.A., Greenville, South Carolina, for Appellant. W. Walter Wilkins, Assistant United States Attorney, Office of the United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: James Barlow Loggins, Assistant Federal Public Defender, Office of the Federal Public Defender, Greenville, South Carolina, for Appellant. Reginald Lloyd, United States Attorney, Columbia, South Carolina, for Appellee.

Before MICHAEL and KING, Circuit Judges, and CATHERINE C. BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Reversed by published opinion. Judge MICHAEL wrote the opinion, in which Judge KING and Judge BLAKE joined.

OPINION

MICHAEL, Circuit Judge:

Dwight Jose Mitchell used a false driver's license and counterfeit checks in the name of Marcus Jackson to buy merchandise and return it for cash refunds. Section 1028A(a)(1) of Title 18 makes it a crime, called aggravated identity theft, to use a means of identification of another person (a specific person) in the commission of certain felonies, including bank fraud. Mitchell pled guilty to bank fraud, but he appeals his conviction, rendered in a bench trial, for aggravated identity theft. Although there are real persons named Marcus Jackson, Mitchell did not couple his use of that name with a sufficient amount of correct, distinguishing information to identify a specific Marcus Jackson, as required by the statute. We therefore reverse Mitchell's conviction for aggravated identity theft.

I.

Mitchell was charged in a three-count superseding indictment with bank fraud in violation of 18 U.S.C. § 1344 (count I), transporting counterfeit securities in interstate commerce in violation of 18 U.S.C. § 2314 (count II), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (count III). He pled guilty to count I and not guilty to count III; the government dismissed count II. Mitchell was tried by the court without a jury on count III's charge of aggravated identity theft. Count III alleged that on or about October 3, 2005, in the District of South Carolina Mitchell used, without lawful authority, a means of identification of another person. Specifically, this count alleged that Mitchell used a Georgia driver's license in the name of Marcus Jackson, to commit bank fraud by passing counterfeit checks drawn on Wachovia Bank. Stipulated facts, which we recount first, made up much of the evidence at trial.

Around January 2002 Mitchell, who was a legal alien, embarked on a scheme to defraud banks and retailers. Using a computer and check writing software, Mitchell printed counterfeit personal checks. The checks showed a targeted bank as drawee and listed Marcus Jackson as drawer. As an identification document Mitchell used a false Georgia driver's license featuring his own photograph but bearing the name Marcus Jackson. Using the counterfeit checks and the false identification, Mitchell would buy merchandise from a retailer at one store and return it for a cash refund at another store operated by the same retailer.

Mitchell pursued this scheme until October 4, 2005, when he was arrested by city police in Greenville, South Carolina, after passing counterfeit checks drawn on Wachovia Bank in the name of Marcus Jackson. Mitchell passed the checks at Marshall's, a local retail store, using as identification the false Georgia driver's license in the name of Marcus Jackson. When Mitchell was arrested, he had in his possession the false license and blank counterfeit checks, all in the name of Marcus Jackson. The driver's license number on the false license does not exist in the database of the Georgia Department of Driver Services. The department has, however, issued licenses in the name of Marcus Jackson.

The government introduced the false driver's license in the name of Marcus Jackson, 2446 New Hope Dr., East Point, GA, DOB: 10-19-77. Two additional government exhibits from the Georgia Department of Driver Services showed that valid driver's licenses had been issued to (1) Marcus Deyone Jackson, 2133 Stanton Rd., # B1, East Point, GA, DOB: 2-18-1977; and (2) Marcus Jackson, 100 Morrow Rd., Apt. B2, Forest Park, GA, DOB: 2-24-1976.

Mitchell, who was the only witness, testified in his own defense. He said that he did not know anyone named Marcus Jackson when he used the false driver's license and counterfeit checks in that name. According to Mitchell, he "just went in the phone book," because "when [he] couldn't think [of] a name," he "went and found [one]." J.A. 43. Mitchell further testified that he "ma[d]e up" the name Marcus Jackson. Id. This testimony, taken in the light most favorable to the government, is sufficient to establish that Mitchell got the name Marcus Jackson from a telephone book.

At the close of all the evidence Mitchell moved for a judgment of acquittal, arguing that the name Marcus Jackson was not sufficiently unique to identify a specific person. According to Mitchell, other identifiers were needed to identify a specific Marcus Jackson, and thus he did not use the means of identification of a specific person. The government argued that it only had to prove that a real person named Marcus Jackson existed, and the evidence showed there were at least two such persons. The district court agreed with the government, denied Mitchell's motion for acquittal, and found him guilty of aggravated identity theft.

The district court sentenced Mitchell to forty months in prison on the bank fraud count and a consecutive twenty-four months in prison on the aggravated identity theft count. Mitchell appeals only his conviction for aggravated identity theft.

II.

The question in this appeal is whether Mitchell, while engaging in bank fraud, committed aggravated identity theft by using "a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The answer turns on the meaning of the phrase "a means of identification of another person" and the sufficiency of the evidence. The meaning of the statute is a legal question that we review de novo. United States v. Montejo, 442 F.3d 213, 215 (4th Cir.2006). In reviewing the sufficiency of the evidence, we must sustain a guilty verdict "if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Substantial evidence "is evidence that a reasonable [trier] of fact could accept as adequate and sufficient to support a [finding of] a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc).

A.

The aggravated identity theft statute, 18 U.S.C. § 1028A, was enacted to "provide[ ] enhanced penalties for persons who steal identities to commit terrorist acts, immigration violations, firearms offenses, and other serious crimes." H.R.Rep. No. 108-528 at 3 (2004), 2004 U.S.C.C.A.N. at 779. An offense occurs under subsection (a)(1) of the statute when a person "during and in relation to any [enumerated] felony violation . . . knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The enumerated companion felonies include mail, bank, and wire fraud, acquisition of customer information by false pretenses, theft of public money or property, and violations relating to alien registration, immigration, and citizenship. Id. § 1028A(c). Conviction under § 1028A(a)(1) triggers a mandatory two-year prison term that must run consecutively to any other term imposed. Id. § 1028A(b).

In considering the meaning of § 1028A(a)(1)'s phrase "a means of identification of another person," our starting point is the language of the statute. When "the statute's language is plain, the sole function of the courts is to enforce it according to its terms," except in the rare case in which "the literal application . . . will produce a result demonstrably at odds with the intentions of its drafters." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citations and internal quotation marks omitted). In assessing for plain meaning, "[w]e do not . . . [consider] statutory phrases in isolation; we read statutes as a whole." United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); Ayes v. United States Dep't of Veterans Affairs, 473 F.3d 104, 108 (4th Cir.2006).

Here, the statute provides a definition that plainly clarifies the meaning of "a means of identification of another person." "Means of identification" is 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 —

(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)).

18 U.S.C. § 1028(d)(7) (emphasis added). The definition's overriding requirement is that a means of identification — that is, an identifier or identifiers — must be sufficient "to identify a specific individual." More particularly, the definition of a means of identification encompasses "any name or number that may be used, alone or in conjunction with any other information, to identify a specific...