U.S. v. McKnight, s. 93-1394

• Citation: 17 F.3d 1139
• Decision Date: 08 March 1994
• Docket Number: Nos. 93-1394,93-1489 and 93-1766,s. 93-1394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles McKNIGHT, also known as Paul Byrne, also known as Arthur McGreevy, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Theresa BARNER, also known as Dolores Michaels, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Singleton HALL, also known as Frank Essig, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1139

17 F.3d 1139

UNITED STATES of America, Plaintiff-Appellee, v. Charles McKNIGHT, also known as Paul Byrne, also known as

Arthur McGreevy, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Theresa BARNER, also known as Dolores Michaels, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Singleton HALL, also known as Frank Essig,

Defendant-Appellant.

Nos. 93-1394, 93-1489 and 93-1766.

United States Court of Appeals,

Eighth Circuit.

March 8, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 93-1766

April 18, 1994.

Rehearing Denied in No. 93-1489

May 5, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 93-1394

May 13, 1994.

Counsel who represented the appellant Charles McKnight was Howard A. Shalowitz of Clayton, Missouri.

Counsel who represented the appellant Theresa Barner was Steven Z. Routburg of Creve Coeur, Missouri.

Counsel who represented the appellant Anthony Hall was JoAnn Trogg of Clayton, Missouri.

Counsel who represented the appellee was Dorothy L. McMurtry, Assistant United States Attorney, of St. Louis, Missouri.

Before MAGILL, Circuit Judge, LAY, Senior Circuit Judge, and HANSEN, Circuit Judge.

LAY, Senior Circuit Judge.

Charles McKnight (McKnight), Theresa Barner (Barner) and Anthony Singleton Hall (Hall) appeal from a judgment entered by the district court ¹ on a jury verdict finding them guilty of one count of conspiracy to possess stolen mail and to use unauthorized access devices, in violation of 18 U.S.C. Sec. 371, and one count of using a social security number, not assigned to him or her, in violation of 42 U.S.C. Sec. 408. Hall also appeals his conviction for possession of stolen mail in violation of 18 U.S.C. Secs. 2 and 1708 and the enhancement of his sentence made under sections 4A1.1(b) and 3B1.1(b) of the Sentencing Guidelines. Each of the defendants has raised several claims of error which allegedly prejudice their convictions. With the exception of one count of the conviction, we find no merit to any of the defendants' claims. We discuss only the claim relating to the defendants' convictions for misrepresentation of a social security number which was not assigned to him or her. The other claims are either frivolous or fail to constitute error. ² In Counts IV, V and VII of the superseding indictment, McKnight, Barner and Hall, respectively, were charged with falsely representing a social security number not assigned to him or her in violation of 42 U.S.C. Sec. 408(a)(7)(B). ³ In each case, the basis for the charge was that the defendant possessed a false identification card with a social security number on it which was not his or her own. The charge against McKnight was based on an investigative reporter identification card in the name of Arthur McGreevy bearing McKnight's picture and purportedly signed by McKnight. The card also had a line which read, "SS # 059-98-2781." At trial, a handwriting expert testified that McKnight signed the name Arthur McGreevy, and the district manager of the Social Security Administration, Stan Laurent, testified that social security number 059-98-2781 is not that of McKnight. Laurent testified that he did not know who made the false identification card, or whether the card was ever used.

Similarly, the basis for the charge against Barner was a false employee identification card found in Barner's purse bearing the name Annette Rakowitz and containing a social security number which was not Barner's. The basis for the charge against Hall was a false Illinois driver's license found in Hall's vehicle in the name "Frank Essig" and bearing Hall's photograph and a social security number which was not assigned to Hall. A stolen credit card in the name Frank Essig was also found in the car. For each defendant, the indictment charged that

the defendant, did knowingly, willfully and with the intent to deceive, falsely represent Social Security Account Number [059-98-2781 (McKnight), 059-89-7149 (Barner), 339-09-4286 (Hall) ] to be the number assigned by the Secretary of Health and Human Services to [him or her], when, in fact, such number was not the Social Security Account Number assigned by the Secretary to [him or her].

In violation of Title 42, United States Code, Section 408.

The government argued at trial that these pieces of physical evidence were sufficient to allow the jury to conclude that McKnight, Barner and Hall had represented to the person preparing the false cards that the social security numbers printed thereon were theirs or that they had misrepresented the numbers to others. Each defendant objected and moved for a judgment of acquittal as to the false representation counts, arguing that the government had failed to produce any evidence that the defendants had represented the false social security numbers to anyone. The district court responded to the defendants' motions for judgment of acquittal that "I think it is a very marginal situation as to the claims in [Counts IV, V and VII]," but allowed the question to go to the jury. The jury convicted, and the defendants now appeal.

The issue in this case is, in light of all of the evidence presented, whether a jury rationally could have inferred, beyond a reasonable doubt, that the defendants represented false social security numbers. In deciding whether evidence is sufficient to withstand a motion for judgment of acquittal, we must view the evidence and all reasonable inferences in the light most favorable to the government. United States v. Gordon, 974 F.2d 97, 100 (8th Cir.1992). We find that the government produced insufficient evidence to support a conviction under the statute.

Section 408(a)(7) provides:

Whoever ... for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose ... (B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Secretary to him or to another person, when in fact such number is not the social security account number assigned by the Secretary to him or to such other person ... shall be guilty of a felony....

42 U.S.C. Sec. 408(a)(7). From the statutory language, the elements of a 42 U.S.C. Sec. 408(a)(7)(B) violation are easy to discern. The government must allege and prove that the defendant (1) for any purpose, (2) with the intent to deceive, (3) represents a particular social security account number to be his or another person's, (4) which representation is false. See United States v. Darrell, 828 F.2d 644, 647 (10th Cir.1987) (setting forth these four elements). Defendants urge that the government failed to produce sufficient evidence of the third element, to wit, evidence that the defendants ever represented the false social security numbers to anyone.

This case is unlike those that have affirmed convictions for actual misrepresentations made by defendants. See, e.g., United States v. Barel, 939 F.2d 26, 34 (3d Cir.1991) (affirming conviction where defendant used false social security number to open bank accounts); Darrell, 828 F.2d at 647-48 (affirming conviction where defendant used false social security number to obtain loan and gave police false identification to conceal identity); United States v. Holland, 880 F.2d 1091, 1095 (9th Cir.1989) (affirming conviction for use of false social security numbers to obtain illegitimate paychecks). Indeed, the cases uniformly require some evidence, either direct or circumstantial, of the use of a false social security number to uphold a conviction under Sec. 408(a)(7)(B). E.g., United States v. Manning, 955 F.2d 770, 773 (1st Cir.1992) ("To establish that [the defendant] violated [the statute], the government needed to prove that [the defendant] used a false social security number ... for any purpose, with the intent to deceive." (emphasis added)). ⁴

In United States v. Doe, 878 F.2d 1546 (1st Cir.1989), a case factually similar to the present case, ⁵ the First Circuit reversed a conviction stating that "we can find no evidence whatsoever in the record that [the defendant] ... falsely represented that this social security number was his," when a defendant was merely in possession of a false social security card bearing a false social security number upon his arrest.

Moreover, it is clear that Congress, by using the term represent, meant to proscribe the use, not merely the possession, of a false social security number. The term "represent" connotes a positive action, not merely passive possession. Indeed, the legislative history of section 408 reflects Congress's principal concern with forbidding the use of a fraudulent number. ⁶ This reading is buttressed when one considers the instances in which Congress has made possession an offense. For example, the subsection of the statute immediately following the section at issue makes it a crime when one "possesses a social security card or counterfeit social security card with intent to sell or alter it." 42 U.S.C. Sec. 408(a)(7)(C); see also 18 U.S.C. Sec. 1028(a)(3) & (4) (making possession of false identification for particular purposes a crime). Had Congress intended to make mere possession of identification bearing a false social security number a crime, it certainly could have. The statutory language and the legislative history of section 408(a)(7)(B) indicate, however, that Congress was interested in proscribing the use of a false social security, not mere possession. Yet these defendants, who merely possessed false...