U.S. v. Blixt

• Decision Date: 26 November 2008
• Docket Number: No. 07-30198.,07-30198.
• Citation: 548 F.3d 882
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Margaret BLIXT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

548 F.3d 882

UNITED STATES of America, Plaintiff-Appellee, v. Margaret BLIXT, Defendant-Appellant.

No. 07-30198.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2008.

Filed November 26, 2008.

Palmer A. Hoovestal, Hoovestal Law Firm, Helena, MT, for defendant-appellant Margaret Blixt.

Michael S. Lahr, Assistant United States Attorney, Helena, MT, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. No. CR-06-00025-CCL-1.

Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II^* District Judge.

RAWLINSON, Circuit Judge:

Margaret Blixt (Blixt) appeals from her jury conviction and sentence for mail fraud under 18 U.S.C. § 1341 and aggravated identity theft under 18 U.S.C. § 1028A. The district court denied Blixt's motion to dismiss the aggravated identity theft charge and subsequent motion for acquittal on the same count. The court determined as a matter of law that contrary to Blixt's assertion, a signature is a name for the purpose of defining a "means of identification" as used in § 1028A. The district court also denied Blixt's motion for acquittal on the mail fraud charge, rejecting her interpretation of what is required to prove the materiality element of the offense.

Blixt appeals these rulings, the inclusion and exclusion of various jury instructions, and the court's decision not to depart downward for diminished mental capacity pursuant to U.S.S.G § 5K2.13. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I.

BACKGROUND Blixt began working for Crawford and Company (Crawford) in 1998 in its Helena, Montana office. Crawford is a large international corporation, providing claim adjusting, vocational rehabilitation, and risk management services to its insurance company clients. At the time of the events leading to Blixt's conviction, Timothy Fitzpatrick (Fitzpatrick) was the branch manager.

When checks arrived from insurance companies, they were forwarded from the Helena office, along with associated invoices and accounting information, to Crawford's headquarters in Atlanta via commercial carrier. From 2003 to 2004, it was primarily Blixt's responsibility to forward the packages.

The Helena branch maintained a checking account at Valley Bank, with Fitzpatrick having signature authority. Beginning in March, 2003, Blixt began to deposit client payments into the Valley Bank account. Blixt wrote approximately 352 checks from this account for her own personal gain, forging Fitzpatrick's signature on each check. The total amount of the checks was in excess of $150,000.00.

In January, 2004, Blixt began sending false accounting information to Crawford's Atlanta office to cover her actions. Crawford accounting personnel relied on the invoice numbers written by Blixt to determine where to allocate the funds. Using this system, Blixt was able to orchestrate allocation of current funds to old accounts from which Blixt had stolen funds.

In August, 2004, Fitzpatrick was alerted by Valley Bank to "some unusual signatures on checks that were coming into the account." Ultimately, Blixt admitted her actions to Fitzpatrick.

In October or November, 2004, Detective Russell Whitcomb (Whitcomb) of the Helena Police Department interviewed Blixt. Blixt admitted that she forged Fitzpatrick's signature, stole the money, and used it for her own benefit.

FBI Special Agent Kevin Damuth (Damuth) also met with Blixt. Blixt told Damuth that she deposited checks received from customers into the Valley Bank account and withdrew the money by writing checks to herself, signing Fitzpatrick's name. She admitted that neither Fitzpatrick nor anyone else from Crawford had given her authorization to sign Fitzpatrick's name.

On October 4, 2006, Blixt was indicted on two counts. Count 1 charged Blixt with a violation of 18 U.S.C. § 1341 (mail fraud). Count 2 charged her with a violation of 18 U.S.C. § 1028A(a)(1) (aggravated identity theft).

Blixt moved to dismiss Count 2, arguing that a signature was not a name, and therefore not a means of identification under 18 U.S.C. § 1028A. The district court denied Blixt's motion, holding that a forged signature was a means of identification as contemplated under that statute.

Prior to trial, the government filed a motion in limine to prevent Blixt from arguing and presenting evidence at trial that a forged signature is not a means of identification. Upon completion of the government's case, the district court denied the motion. The court also denied Blixt's motion for acquittal pursuant to Rule 29 of the Rules of Criminal Procedure, made at the close of the government's case.

During the settling of jury instructions, Blixt's counsel again raised the defense's theory that a forged signature is not a name. The district court indicated that it would instruct the jury otherwise. When Blixt's counsel stated that he intended to present the theory nevertheless, the court responded that it would listen to the argument and if the court thought the argument was "contrary to the instruction, the jury[would] be instructed further."

During closing argument, Blixt's counsel argued that a forged signature is not a means of identification but rather "a series of swirls and lines. It doesn't say anything. And that's what a forged signature is. It's not the use of a name." Defense counsel also made the following statements:

• For there to be false statements for the purpose of engaging in mail fraud, Blixt's statements "had to have influenced somebody to part with money."

• The judge was appointed by the President and affirmed by the Senate.

• The jury was brought from the community "to form[ ] a buffer, the barrier between the awesome power of the government and the people."

• The community "can solve our own problems. We don't need the federal government to intercede in local matters."

• "This is serious, serious business. This is the United States government. This is the same government that is at war in Iraq."

• These are "state offenses" that "should have been charged at the state level because the government cannot prove these elements ..."

• This case "should have been in state court."

Following these statements from defense counsel, the district court instructed the jury that "a signature is a name within the meaning of the phrase `Means of Identification.' " With respect to Blixt's counsel's statements regarding the materiality element of the mail fraud charge, the court also stated that "Mr. Hoovestal has argued that it is necessary here that a person parted with money. Now, this is incorrect under the law ..."

The district court further instructed the jury that the case was properly in federal court and the jury should disregard the "erroneous statement of the law by defense counsel" that the case should have been in state court. Finally, the judge stated that it was irrelevant that he was appointed by the President and approved by the Senate; this did not make him "from Washington, D.C.", and "[t]his court has nothing to do with what's going on in Iraq."

Defense counsel preserved his objections to the district court's jury instructions. Blixt was convicted of both mail fraud and aggravated identity theft. At sentencing, Blixt sought a downward departure due to diminished mental capacity. The district court ultimately declined to further adjust Blixt's sentence. Blixt was sentenced to a term of forty-eight months in prison.

Blixt filed a timely notice of appeal.

II. STANDARDS OF REVIEW

We review de novo a district court's denial of a motion to dismiss the indictment for failure to sufficiently state an offense, United States v. Sutcliffe, 505 F.3d 944, 961 (9th Cir.2007), and the district court's interpretation of the relevant criminal statute. United States v. W.R. Grace, 504 F.3d 745, 751 (9th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2964, ___ L.Ed.2d ___ (2008). We also review de novo the denial of a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. United States v. Johnson, 444 F.3d 1026, 1029 (9th Cir.2006). The district court's formulation of jury instructions is reviewed for an abuse of discretion. See United States v. Tatoyan, 474 F.3d 1174, 1179 (9th Cir.2007). "[H]owever, whether the district court's instructions adequately presented the defendant's theory of the case is reviewed de novo." Id. (citation, alteration and internal quotation marks omitted). We review the district court's application of the Sentencing Guidelines to the facts for an abuse of discretion. United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.2008). "[T]he scheme of downward and upward `departures' [is] essentially replaced by the requirement that judges impose a `reasonable' sentence." United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006).

III. DISCUSSION

A. The Aggravated Identity Theft Count

Blixt contends that the district court "erred as a matter of law when it ruled that a signature is a name for purposes of [the] Aggravated Identity Theft" statute and thus erred in denying both her motion to dismiss Count 2 and her motion for acquittal on Count 2. Blixt asserts that she did not use another's name, she merely forged a signature, and because a forged signature is not separately identified as a "means of identification" under § 1028A, her actions did not violate the statute.

Whether the use of another's signature constitutes a "means of identification" for purposes of the Aggravated Identity Theft statute has not yet been resolved by this or any other circuit. Finding no prior authority on the issue, we hold as a matter of first impression 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.

The Aggravated Identity Theft statute provides in part:

(1) In general.—Whoever,...