United States v. Brown

• Decision Date: 16 March 2023
• Docket Number: 4:22-CR-3131
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. LACIE BROWN, Defendant.
• Court: U.S. District Court — District of Nebraska

1

UNITED STATES OF AMERICA, Plaintiff, v. LACIE BROWN, Defendant.

No. 4:22-CR-3131

United States District Court, D. Nebraska

March 16, 2023

ORDER TO SHOW CAUSE

JOHN M. GERRARD, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Magistrate Judge's findings and recommendation (filing 28) that the Court accept the defendant's plea of guilty to the charge of knowingly possessing an authentication feature of the United States that was stolen or produced without lawful authority, knowing that it was stolen or produced without such authority. See filing 21. The Court, however, has questions about the factual basis for the plea.

Fed. R Crim. P. 11(b)(3) is quite clear: "Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." A guilty plea is supported by an adequate factual basis when the record contains sufficient evidence at the time of the plea upon which a court may reasonably determine that the defendant likely committed the offense. United States v Cheney, 571 F.3d 764, 769 (8th Cir. 2009). That means that there must be a factual basis for every element of the crime charged. United States v. Stewart, 739 F.2d 1379, 1381 (8th Cir. 1984). A valid guilty plea admits all the elements of a criminal charge and facts that form the basis for federal jurisdiction. United States v Williams, 557 F.3d 556, 560 (8th Cir. 2009)

The purpose of this rule is to protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that their conduct does not actually fall within the charge. United States v. Heid, 651 F.3d 850, 854 (8th Cir. 2011) (citing McCarthy v. United States, 394 U.S. 459 (1969)). Facts obtained from the prosecutor's summarization of the plea agreement and the language of the plea agreement itself, a colloquy between the defendant and the Court, and the stipulated facts before the Court, may be sufficient to find a factual basis for a guilty plea. United States v. Scharber, 772 F.3d 1147, 1150 (8th Cir. 2014). But the Court commits plain error if it accepts a plea when the record shows that the defendant's conduct did not, as a matter of law, meet all of the elements of the crime to which they pled guilty. United States v. Wroblewski, 816 F.3d 1021, 1025 (8th Cir. 2016)

The problem in this case is with the required element of an "authentication feature." See 18 U.S.C. § 1028(a)(6). An "authentication feature" is defined as

any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified.

§ 1028(d)(1). The "feature" at issue here is a Social Security number, presumably meant to be a "sequence of numbers." See id. But a Social Security number isn't used "on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified." See id. (emphasis supplied). Rather, as the Court explained at length in United States v. Rodriguez-Cisneros,

the obvious purpose of the legislation-both from its history and its plain language-was to address anti-counterfeiting measures.

A Social Security number, by contrast, is clearly a "means of identification" as defined by the statute: a "name or number that may be used, alone or in conjunction with any other information, to identify a specific individual," including a Social Security number or driver's license number. § 1028(d)(7). The purpose of a Social Security number is identification, not security. The two categories are not necessarily mutually exclusive, but the distinction is helpful. Any "means of identification" could presumably be used to detect deception, because it could be used to discover that the person presenting the identifying document is not actually the person identified. The fact that Congress drew a distinction between a "means of identification" and a "authentication feature" suggests that the latter should be a feature primarily used for security.

916 F.Supp.2d 932, 935 (D. Neb. 2013). Accordingly, the Court held that a Social Security number isn't an "authentication feature" because its primary function isn't its use by the issuing authority to determine if an identification document is counterfeit, altered, or otherwise falsified. Id.

The factual basis provided for the plea here establishes only that the defendant made unauthorized use of the victim's Social Security number on student loan applications. See filing 27 at 2...