Munksgard applied for a line of credit at a small bank operating in a few counties in west central Florida. To support his application, he submitted a surveying contract with a company Cal-Maine foods showing the signature of a Cal-Maine employee, Kyle Morris. The contract was fraudulent and Munksgard signed Morris’s’ name without knowledge or permission. He made multiple fraudulent applications for lines of credit by supporting the applications with fraudulent contracts signed by fictional employees. Munksgard was indicted on four counts of knowingly making a false statement in order to obtain a loan from an FDIC-insured bank in violation of 18 USC section 1014 and one count of aggravated identity theft for placing Morris’ signature on the Cal-Main Foods contract in violation of 18 USC section 1028A.
Knowles appealed her convictions for the use of an unauthorized access devise and for aggravated identity theft in violation of 18 U.S.C. 1029 and 1028. She was arrested following a traffic stop in which the car she was a passenger in was stopped for having illegally tinted windows. The officer stopping the car was with agent Tippens of the Department of Labor who was part of a task force investigating identity theft and other crimes. Because the driver was on probation for a state fraud offense, the officer asked for and received consent to search the car. He found four Publix Supermarket money orders each for $500 and money order receipts, along with $1,000 in cash in a compartment. Knowles claimed they were all bought with cash.
Tippens later obtained the surveillance videos from the Publix store where the money order were purchased and matched the purchases shown on the video with the dates times and store numbers reflected on the money order and money order receipts found in the car. The money orders were purchased with prepaid debit cards which were obtained under the names and social security number of two individuals whose identities had been stolen. As a result Knowles was charged.
At the trial the government elicited testimony from Tippens who identified Knowles as the person in the Publix surveillance videos who purchased the money orders with the prepaid debit cards. He based his opinion on his frame-by-frame review of the surveillance videos, his comparison of the individual in the videos to photographs of Knowles and his 20 minute interaction with Knowles during the traffic stop.
George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.
The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon. Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.
In U.S. v Wright the defendant Wright pled guilty to conspiracy to commit wire fraud and aggravated identity theft by filing fraudulent tax returns in the name of identity theft victims in order to obtain the refunds in violation of 18 USC §1349 and possessing 15 or more counterfeit and unauthorized access devised with the intent to defrauds in violation of 18 USC §1029. Other counts involved possession of names and social security number of five different people. The factual proffer of the plea agreement revealed that the IRS discovered fraudulent returns coming from the same Interne Protocol (IP) address what turned out to belong to a Florida apartment that was rented by Wright. The IRS agents executed a search warrant at the apartment where they found person identifying information PII for thousands of people in a number of places in the apartment. After seizing and analyzing the documents, the IRS determined there were 12,124 identities, 331 debit of credit cards containing account information and 2,090 identities found on the computers and flash drive.
The district court sentenced Wright to 84 months. Because the intended loss on all the tax returns totaled $868,472 plus an additional $6,905,500 representing $500 for each of the 13,811 remaining compromised identities found in the apartment. The issue on appeal was whether the loss amount calculated for determining Wright’s sentencing should the $500 amount for each of the remaining 13,811 compromised identities. The appeals court refined the issued by asking whether the 13,311 compromised identities qualified as “access devises” under any part of the definition for access devices as given in the sentencing guidelines. While the court of appeals found the 331 debit or credit cards and numerous social security number are access devises, the question became whether the other thousands of compromised identities which were described only as “personal identifying information.”
In U.S. v. Spivey, the defendants Spivey and Austin reported to police their home had been burglarized. When the police caught the burglar, he informed them that this residence was the site of substantial credit-card fraud and much high-end merchandise was kept there.
Two South Florida Organized Fraud Task Force members began investigating credit card fraud by the defendants and they went to the residence on the pretext of acting as detectives investigating the two burglaries. The detectives wore a police jacket and displayed a gun and badge. When Austin saw the agents approaching she went inside to warn Spivey and told him to hide the card reader/writer in the oven.
The agents told Austin they were there to follow up on the burglary and Austin invited them in. They told Austin that one of the detectives was a crime scene technician and maintained the façade by pretending to brush for latent fingerprints. Austin led the agents through the house and pointed out their home surveillance video of the burglary. Inside the home the officers observed evidence of fraud including a card embossing machine, stacks of credit cards and gift cards, large quantities of expensive merchandise such as designer shoes and iPads. They both told the officers that the embossing machine had been left in the apartment before they moved in.
The officers then ended their ruse and told Spivey that they investigated credit-card fraud. After being advised of his rights, he gave written consent to the officers to conduct a full search of the home and of his computer and cell phone. In that search, the officers recovered high end merchandise, drugs, a handgun, and embossing machine, a card reader/writer and about seventy-five counterfeit cards. The defendants were indicted and both challenged the search with a motion to suppress all the evidence found on the grounds of a Fourth Amendment violation. The district court denied the motion and the defendants appealed.
Appellants in the Pierre opinion appealed their federal criminal convictions and sentences for conspiracy to defraud the Internal Revenue Service, conspiracy to traffic in unauthorized access devises, aggravated identity theft and other substantive counts of identity theft following a jury trial. The scheme in this case involved filing fraudulent income tax returns. The Defendants filed tax returns in the names of Florida prison inmates. The tax refunds were paid to the TaxProfessors’ debit cards that were used at automatic teller machines to obtain cash.
The scheme unraveled after an officer spotted a Cadillac with dark tinted windows and could not see inside the vehicle. He also noticed a temporary tag on the vehicle that was registered to the Defendant whose family owned a body shop that authorities suspected fraudulently issued temporary vehicle tags. The officer made a traffic stop because the he believed the tinting on the windows was below the standards permitted by Florida law. After receiving consent to search the inside of the car the officer found prepaid debit cards issued by a business that was called TaxProfessor. The investigation into the debit cards led to a search warrant for the home of a defendant who was connected to TaxProfessor. The Defendants also approached an employee of the Florida Department of Children and Family Services as a child protective investigator who had access to personal identifying information through a state database. The Defendant paid the DCF employee for a printout from the website which contained a list of inmates and SSN’s for 25 names on the list. Tax returns were filed using the inmates’ information and the tax refunds were loaded onto these debit cards for TaxProfessors accounts.
In U.S. v. Brown the Defendant pleaded guilty in federal court for knowingly receiving 481 counterfeit United States Postal Money Orders from a foreign county with intent to pass them off as real, violation of 18 U.S.C. § 473. As part of her plea agreement she waived her right to appeal her federal conviction and sentence. At the plea colloquy she admitted that she knew the postal money orders were not true and were counterfeit.
Nevertheless, she filed her appeal and raised the issue in her appeal that her indictment was defective because it did not expressly allege the mens rea element of the section 473. She argued that the omission deprived the federal court of subject-matter jurisdiction to accept her guilty plea and therefore her conviction is null and void.
Brown’s two count indictment was based on her receipt of packages containing the counterfeit money orders. Count one did not allege knowledge, however count 2 did allege that the defendant acted knowingly. The Defendant plead guilty to count one.
Brown’s jurisdictional argument went like this. The indictment was defective on its face because count one did not include the required mens rea element, which is an essential element of section 473 that makes if a crime to receive and/or pass counterfeit money orders. Because of this omission, Brown argued the indictment does not state a federal crime and therefore the district court never had jurisdiction to sentence her.
In U.S. v. Edmond, Defendant was indicted for conspiracy to commit access-device fraud and aggravated identity theft based upon his use of social security numbers to make fraudulent bank transfers. Pursuant to a plea agreement, he pleaded guilty to possession of fifteen or more unauthorized access devices – an unindicted offense – and one count of aggravated identity theft. On the basis of this plea, the District Court sentenced Edmond to prison for a total of 48 months.
For some time in January to the beginning of April 2013, Edmond and his co-conspirator, Sheenequa Angel Michel, allegedly engaged in a scheme fraudulently transfer money using unauthorized “replacement cards”. Michel, a Bank of America teller, would improperly access, photograph, and create lists of “the personal identification information, including Social Security numbers,” of BofA customers. Edmond would then use that information to acquire unauthorized replacement cards, and in turn, would use those cards to make fraudulent money transfers. This resulted in a total loss of $14,243.31. A BofA representative confronted her after investigation identity-theft complaints. Michel admitted her involvement. Later she agreed to cooperate. She transferred another 90 names to Edmond, this list consisted of controlled identities provided by law enforcement. Following the transfer, agents arrested Edmond.
In U.S. v. Charles the defendant was found in possession of prepaid debit cards that were loaded with tax-refund monies sent by the I.R.S. in response to fraudulent tax returns. Charles pleaded guilty to the federal crimes of trafficking in access devices and aggravated identity theft. The identity theft count carries an additional two-year sentence that runs consecutively to another other predicate crime involving the unauthorized transfer, possession, or use of the identity of another. The applicable sentencing guidelines provision for the access device count, section 2B1(b)(11)(B), has a two-level increase for the production or trafficking of unauthorized devices The district court found that the enhancement was warranted because the Charles transferred one of the prepaid debit cards to his codefendant and thereby “trafficked” an unauthorized access device.
On appeal, Charles challenged the two point enhancement arguing the district court erred in refusing to submit the applicability of the enhancement to a jury pursuant to Alleyne v. U. S. The court rejected his Alleyne argument because the two level increase only affected Charles’ guidelines calculation and not his statutory mandatory minimum or maximum sentence. Alleyne holds that a court cannot make a judicial finding of a fact at sentencing where the fact is an element of a crime that increases the maximum sentence. Alleyne preserved a sentencing court’s fact finding authority concerning facts that impact the statutory punishment.
However, the court of appeals did find that the two level increase for trafficking was error. U.S.C. § 1028A(a)(1). The guidelines applicable to U.S.C. § 1028A is USSG 2B1.6 which specifically provides that the sentencing guideline for the identity theft offense is the two year consecutive sentence mandated by statute. The Application Notes of the guidelines explain that if a sentence under section 2B1.6 is imposed in conjunction with a sentence for an underlying offense, the court should not apply any specific offense characteristic for the “transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.” Because Charles already received the mandated two-year consecutive for aggravated identity theft, the Application Note to section 2B1.6 precluded the two level increase for transferring the debit card to the codefendant.
In U.S. v. Philador the two defendants pled guilty to conspiracy to steal government funds in violation of 18 U.S.C. §371 and to the charge of theft of government funds in violation of 18 U.S.C. §641. Their offenses involved a scheme to submit fraudulent tax returns to the Internal Revenue Service using stolen social security numbers. They then received refund checks from the government and deposited the funds into various corporate accounts of companies they controlled. The presentence investigation report recommended a six-level enhancement to their offense level pursuant to guidelines section §2B1.1(b)(2)(c) because it claimed the offense involved 250 or more victims. Only twenty-six of the taxpayer victims had been positively identified by the government. The defendants objected to the enhancement, and while they conceded there were more than 250 social security numbers used to file over 250 fraudulent tax returns, the defendants argued that the government failed to meet its burden because the government failed to show by a preponderance of the evidence that 250 of the social security numbers were authentic and belonged to living people.
In rejecting the defendant’s argument, the 11th Circuit found the district court did not err in finding there 250 victims. There was no dispute that over 250 social security numbers were used to cause the Internal Revenue Service to issue fraudulently submitted returns. Because the Internal Revenue Service issued refunds for tax returns associated with those numbers, the district court made the “legitimate” inference that social security numbers corresponded to actual persons. The 11th Circuit has stated in prior cases that it is not necessary for the government to show that in the context of a government issued identification the government verifies an individual’s identity before it issues a driver’s license or a passport. It is reasonable to conclude that the government routinely obtains an applicant’s identity to verify the authenticity of that identity. Here the district court could infer, based on common sense and ordinary human experience that the Internal Revenue Service verifies identifying information, like social security number, before issuing a tax refund. The fact that the Internal Revenue Service paid the refund to the defendants indicates that the social security number used to procure the refunds are associated with real people and the district court’s conclusion was not erroneous.
Additionally, the district court did not err in applying the six-level enhancement without first finding the victims were living. A victim in this context under the sentencing guidelines a victim is a person whose means of identification was used unlawfully. A means of identification is limited to an actual, and not fictitious, individual. The 11th Circuit found the plain meaning of the phrase “actual” does not distinguish between living and deceased persons. Therefore it was not necessary for the district court to make this finding.