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Signing another person’s name to defraud constitutes identity theft

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.

In U.S.A. v.  Munksgard,  the federal criminal defense attorney argued that the government failed to present sufficient evidence to prove beyond a reasonable doubt one of the elements of the section 1014 count – that the bank is insured by the FDIC. The court of appeals disagreed. Viewing the evidence in a light most favorable to the government the evidence of insurance was sufficient to prove beyond a reasonable doubt that Drummond Community Bank was FDIC insured. First, the government proved the prior existence of insurance by introducing a certificate of FDIC insurance issued when Drummond was initially chartered in 1990. Second, the government proved a subsequent existence, that the bank’s senior vice president testified that the bank was insured at the time of the trial. Finally, when asked whether the bank’s FDIC certificate is renewed every so often, the bank VP testified that it was not. The court concluded that a reasonable jury could conclude that his testimony provides additional evidence, beyond mere prior and subsequent existence, that Drummond was insured in 2013 and 2014 when Munksgard submitted the fraudulent contacts.

The court upheld the aggravated identity theft conviction for which Munksgard received an additional 24 month sentence. It was based on his signing Morris’s name to the fraudulent contract with Cal-Maine Foods. Section 1028A provides that “whoever during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term 2 years imprisonment.”

The court ruled that signing the name “Kyle Morris” will be sufficient as proof of a means of identification. Munksgard concede that he signed the name without lawful authority.   The only issue was whether the defendant “used” Morris’s identity. The court rejected the attorney’s argument that he did not try to impersonate him or otherwise act on his behalf. The court found that merely signing his name without authority is sufficient to satisfy the use requirement of the statute. The plain meaning of the term “use” particularly when understood in the statutory context and in the light of relevant precedent shows that Munksgard unlawfully used Morris’s name within the meaning of section 1028A. Therefore the facts support a conviction.