United States v. Lester George ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4125
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
LESTER DEAN GEORGE,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cr-00133-BO-1)
Argued: October 31, 2019 Decided: January 9, 2020
Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges.
Vacated and remanded by published opinion. Judge Floyd wrote the opinion in which
Judge Keenan joined in full and in which Judge Richardson joined in all except Part II.D.
ARGUED: Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellant. Paul K. Sun, Jr., ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Gabriel J. Diaz,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellant. Kelly Margolis Dagger, ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:
The case before us presents a question of first impression for this Court: whether
the term, “another person,” in the federal aggravated identity theft statute includes
deceased, in addition to living, victims of identity theft. 18 U.S.C. § 1028A(a)(1). The
district court below held that it does not. Therefore, the court allowed the defendant, Lester
Dean George, to withdraw his guilty plea to the count of aggravated identity theft and
dismissed that count. The Government appealed. For the following reasons, we vacate the
district court’s judgment and remand for resentencing.
I.
George, a citizen of Trinidad and Tobago, entered the United States on a temporary
visa that permitted him to stay until 1987. 1 George overstayed his visa and unlawfully
remained in the United States. On May 17, 2013, George used the means of identification
of a deceased victim (“Victim”) in connection with purchasing a residence in North
Carolina. In particular, he used the Victim’s name, date of birth, and social security number
in an attempt to secure a home loan insured by the United States Department of Housing
and Urban Development.
On April 19, 2018, George was charged in a two-count indictment with: false
representation of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B), and
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
1
These facts are taken from George’s change-of-plea hearing in which he pleaded
guilty to all counts.
2
On September 11, 2018, George pleaded guilty to both counts, without a plea
agreement.
On December 17, 2018, George moved to withdraw his guilty plea as to the
aggravated identity theft count on the basis that the district court had previously ruled that
a defendant could not be convicted of aggravated identity theft if the victim whose identity
was stolen was already deceased.
On January 18, 2019, at George’s sentencing hearing, the district court granted his
motion to withdraw his guilty plea as to the aggravated identity theft count and dismissed
the count. On the remaining false representation of a social security number count, George
was sentenced to time served.
The Government timely appealed, arguing that the district court erred in allowing
George to withdraw his guilty plea and dismissing the aggravated identity theft count.
II.
The question presented here is whether the term “person” in the aggravated identity
offense provision at issue, 18 U.S.C. § 1028A(a)(1), includes deceased persons. As it is a
matter of statutory interpretation, this Court conducts a de novo review. Clark v. Absolute
Collection Serv., Inc., 741 F.3d 487, 489 (4th Cir. 2014).
A.
When interpreting a statute, courts must “first and foremost strive to implement
congressional intent by examining the plain language of the statute.” United States v.
3
Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010) (quoting United States v. Passaro, 577 F.3d
207, 213 (4th Cir. 2009)). As a result, “[a]bsent ambiguity or a clearly expressed legislative
intent to the contrary,” id. (quoting United States v. Bell, 5 F.3d 64, 68 (4th Cir. 1993)), we
apply the plain meaning of the statute, which is “determined by reference to its words’
‘ordinary meaning at the time of the statute’s enactment,’” id. (quoting United States v.
Simmons, 247 F.3d 118, 122 (4th Cir. 2001)).
Beyond the general tools of statutory interpretation, “special considerations
govern[] the interpretation of criminal statutes.” United States v. Hilton, 701 F.3d 959, 966
(4th Cir. 2012). Criminal statutes are “strictly construed and should not be interpreted to
extend criminal liability beyond that which Congress has plainly and unmistakenly
proscribed.” Id. (internal quotation marks omitted) (quoting United States v. Childress,
104 F.3d 47, 51–52 (4th Cir. 1996)). This is referred to as the “rule of lenity,” a rule of
statutory construction, that provides that when ambiguity is present in criminal statues, that
ambiguity “must be resolved in favor of lenity for the accused.” United States v. Sheek,
990 F.2d 150, 153 (4th Cir. 1993) (quoting United States v. Headspeth, 852 F.2d 753, 759
(4th Cir. 1988)). The rule is not triggered, however, by the “simple existence of some
statutory ambiguity” given that “most statutes are ambiguous to some degree.” Muscarello
v. United States, 524 U.S. 125, 138 (1998); accord Reno v. Koray, 515 U.S. 50, 65 (1995)
(“The rule of lenity applies only if, ‘after seizing everything from which aid can be
derived,’ we can make ‘no more than a guess as to what Congress intended.’” (citations
omitted)).
4
Finally, before turning to the statute itself, it is worth noting that every other Circuit
to consider the issue presently before us has held that the term “person” in subsection
1028A(a)(1) includes deceased persons. See United States v. Zuniga-Arteaga, 681 F.3d
1220, 1225 (11th Cir. 2012); United States v. LaFaive, 618 F.3d 613, 616–18 (7th Cir.
2010); United States v. Maciel-Alcala, 612 F.3d 1092, 1100 (9th Cir. 2010); United States
v. Kowal, 527 F.3d 741, 746–47 (8th Cir. 2008); United States v. Jimenez, 507 F.3d 13, 22
(1st Cir. 2007).
B.
Section 1028A provides, in relevant part: “Whoever, during and in relation to any
felony violation enumerated in subsection (c), 2 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 of imprisonment of 2
years.” 18 U.S.C. § 1028A(a)(1). 3 We are tasked with determining whether the phrase
“means of identification of another person,” as used in subsection 1028A(a)(1),
encompasses the unauthorized use of the identification of a deceased person. Id. (emphasis
added).
2
Subsection (c) enumerates various federal criminal statutes, including 42 U.S.C.
§ 408(a)(7)(B) (misuse of a social security number). See 18 U.S.C. § 1028A(c)(11).
3
“Means of identification” is defined as “any name or number that may be used,
alone or in conjunction with any other information, to identify a specific individual.” Id.
§ 1028(d)(7).
5
Given that the term “person” is not defined by the statute, we first start by examining
the word’s ordinary meaning. See FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (“When a
statute does not define a term, we typically ‘give the phrase its ordinary meaning.’”)
(quoting Johnson v. United States, 559 U.S. 133, 138 (2010)). To glean a word’s ordinary
meaning, courts often look to dictionaries for illumination and guidance. See Mohamad v.
Palestinian Auth., 566 U.S. 449, 454 (2012). Here, however, dictionaries are inconclusive
as to the meaning of the term “person,” because “some [dictionary] definitions limit a
‘person’ to a living being, while other definitions are not so limiting.” LaFaive, 618 F.3d
at 616; see also Jimenez, 507 F.3d at 19.
Although dictionaries are inconclusive, the use of “person” in common parlance is
illustrative of its ordinary meaning. The word “person” is generally used to refer to both
the living and the dead. That is why, after all, the adjectives of “living” or “deceased” are
added to the word; the adjective modifies and narrows the general noun. See Kowal, 527
F.3d at 746 (“[T]he adjectives ‘living’ and ‘deceased’ may both properly be used to narrow,
that is to make more specific, the meaning of the noun ‘person.’”) Thus, as the Government
points out, the question of whether the word “person” includes a “deceased person,” in
effect, answers itself. In light of the ordinary meaning of the word “person,” “[i]t is
reasonable to assume that Congress considered it unnecessary to distinguish between theft
of the identity of a deceased person as opposed to a living person because the word ‘person’
is broad enough to cover both.” Id.; accord Maciel-Alcala, 612 F.3d at 1099 (“[H]ad
Congress used the phrase ‘living or deceased’ in § 1028A(a)(1), it would have been
surplusage.”).
6
Despite the above, George points to the fact that some state legislatures, such as
North Carolina, have used the adjectives of “deceased” or “dead” to modify the term
“person” in state legislation; George argues, therefore, that the plain meaning of “person”
does not necessarily encompass deceased persons. How some state legislatures have
chosen to draft state legislation, however, is of little help in assessing how a term has been
used by Congress; the fact that “Congress could have drafted the statute differently does
not negate the plain meaning of the statute as enacted.” LaFaive, 618 F.3d at 618.
Moreover, George’s reliance on this Court’s decision in Hilton is misplaced. The
plain reading of “person” to include deceased persons is in contradistinction to the
interpretive task this Court faced in Hilton. See 701 F.3d at 966–69. In Hilton, this Court
addressed whether the same statutory provision encompassed corporate victims of identity
theft. The Court observed that “Congress drafted the identity theft statutes by using the
term ‘person,’” which the Dictionary Act defines as including corporations, “but also by
using the word ‘individual,’ which may or may not include corporations.” Hilton, 701 F.3d
at 967; see also id. (noting that the Dictionary Act treats the word “individual” as a subset
of “person”). Due to the ambiguity and interpretive disconnect between the term “person”
and “individual,” the Court applied the rule of lenity and held that the aggravated identity
theft statute therefore did not apply to the unauthorized use of means of identification of a
corporation. Id. at 968–69 (holding that “nothing in the text, structure, articulated purpose,
or legislative history of the identity theft statutes compels the conclusion that Congress
intended to make the theft of a corporation’s identity a crime” (footnote omitted)).
7
Thus, based on the ordinary meaning of the term “person,” subsection
1028A(a)(1)’s prohibition on using the identification of another “person” includes both
living and deceased victims.
C.
The plain meaning of the term “person” as including deceased persons in subsection
1028A(a)(1) is strengthened when that provision is read in the context of its neighboring
subsection, (a)(2). See 18 U.S.C. § 1028A(a)(1)–(2); see also United States v. Johnson,
915 F.3d 223, 229 (4th Cir. 2019) (“[W]e ‘interpret the relevant words not in a vacuum,
but with reference to the statutory context.’” (quoting Torres v. Lynch, 136 S. Ct. 1619,
1626 (2016)).
Subsection 1028A(a)(2) provides an enhanced penalty (a mandatory term of
imprisonment of five, as opposed to two, years) for identity theft connected to acts of
terrorism. 18 U.S.C. § 1028A(a)(2). In addition to prohibiting the unlawful transfer,
possession, or use of the “means of identification of another person,” the subsection also
prohibits the unlawful transfer, possession, or use of a “false identification document.” Id.
Nothing in the statute limits the phrase “false identification document” to documents of
living persons. As a result, as our sister Circuits have pointed out, construing “means of
identification of another person” to exclude deceased persons would lead to the
“nonsensical result” that subsection (a)(2) “would prohibit the use of a deceased person’s
social security card but not the oral use of that same deceased person’s social security
number” in connection with acts of terrorism. LaFaive, 618 F.3d at 617; Maciel-Alcala,
8
612 F.3d at 1099. Consequently, as the word “person” in subsection (a)(2) must logically
include living and deceased persons, the word “person” in subsection (a)(1) must also
include living and deceased persons. LaFaive, 618 F.3d at 617; Comm’r of Internal
Revenue v. Lundy, 516 U.S. 235, 250 (1996) (“The interrelationship and close proximity
of [two statutory provisions] presents a classic case for application of the normal rule of
statutory construction that identical words used in different parts of the same act are
intended to have the same meaning.” (internal quotation marks omitted)) (quoting Sullivan
v. Stroop, 496 U.S. 478, 484 (1990)).
In light of its plain, ordinary meaning and the statutory context, the term “person”
is unambiguous and includes deceased persons as victims of identity theft. Given the term
is unambiguous, the rule of lenity is “not implicated here.” Kowal, 527 F.3d at 747; accord
Jimenez, 507 F.3d at 22; LaFaive, 613 F.3d at 618; Maciel-Acala, 612 F.3d at 1102;
Zuniga-Arteaga, 681 F.3d at 1226.
D.
The above conclusion would generally be the end of the road as to this Court’s
interpretive inquiry given we do not look to “other indicia of congressional intent such as
the legislative history” to interpret an unambiguous term. Lee v. Norfolk S. Ry. Co., 802
F.3d 626, 631 (4th Cir. 2015) (quoting CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d
46, 53 (4th Cir. 2011)). Nevertheless, peeking behind the curtain to view the relevant
legislative history further bolsters our interpretation, and so we briefly discuss it.
9
During a hearing on the Identity Theft Penalty Enhancement Act (ITPEA), Pub. L.
No. 108-275, 118 Stat. 831 (2004), Representative Adam Schiff, one of the Bill’s co-
sponsors, stated: 4
In section A where the offenses are defined, it refers to a means of
identification of another person. I take it by the choice of that language that
these enhancements apply when the fraudulent identification is that of
another existing person, either live or deceased, but an actual individual, so
in the case of a garden-variety immigration case where somebody fabricates
an identity card out of whole cloth, not referring to any other person but
merely invents a persona, that that would not be included within the sweep
of this.
Identity Theft Penalty Enhancement Act, and the Identity Theft Investigation and
Prosecution Act of 2003: Hearing on H.R. 1731 and H.R. 3693 Before the Subcomm. on
Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 108th Cong. 32
(2004) (statement of Rep. Schiff, Member, H. Comm. on the Judiciary) (emphasis added).
In addition, in passing the ITPEA and providing for increased penalties for identity
theft, the legislative history indicates that Congress was frustrated that “many identity
thieves receive short terms of imprisonment or probation.” H.R. Rep. No. 108–528, at 3
(2004), reprinted in 2004 U.S.C.C.A.N. 779, 780. The House Judiciary Committee Report
accompanying the Act repeatedly emphasized Congress’s intent to target and punish
“identity thieves” who “steal identities to commit terrorist acts, immigration violations,
firearms offenses, and other serious crimes.” Id. Moreover, one of Congress’s purposes
4
Although it is true that “statements of one legislator made during debate may not
be controlling” in ascertaining Congress’s intent, North Haven Bd. of Ed. v. Bell, 456 U.S.
512, 526 (1982), “Representative Schiff’s remarks, as those of the Bill’s cosponsor, are
‘clearly probative of a legislative judgment’ and are therefore ‘entitled to weight,’” Maciel-
Alcala, 612 F.3d at 1100 (quoting Simpson v. United States, 435 U.S. 6, 13 (1978)).
10
was to “protect businesses from financial loss.” Maciel-Alcala, 612 F.3d at 1100.
Congress’s purpose, as illuminated by the legislative history, is furthered by the
interpretation of “person” to include deceased persons. As the Eighth Circuit noted in
Kowal, “[a]n identity stolen from an actual person based on a real name, a real social
security number, and a real birth date makes detection of the theft more difficult than if a
perpetrator had fabricated a false identity.” 527 F.3d at 747. “An identity stolen from a
deceased person, however, is far less likely to be uncovered than one stolen from a living
person.” Id.
Moreover, the theft of a deceased person’s identity is not a “victimless crime”; that
is because, in addition to exposing businesses to potential financial losses, a “decedent’s
estate remains vulnerable to claims before it is closed” and identity theft “can therefore
endanger the decedent’s legacy and bequests. Moreover, the identities of friends and
family of the deceased may be more easily accessed by potential thieves.” Maciel-Alcala,
612 F.3d at 1101–02. As a result, the potential harm caused to the community and the
individual whose identity is stolen is similar regardless of whether the victim is living or
deceased.
Thus, though not necessary for our conclusion, the legislative history further
bolsters our interpretation.
III.
For the foregoing reasons, we conclude that subsection 1028A(a)(1) prohibits the
unauthorized use of the means of identification of deceased, as well as living, victims.
11
Accordingly, we vacate the district court’s judgment allowing George to withdraw his
guilty plea and dismissing the aggravated identity theft count, and remand for resentencing.
VACATED AND REMANDED
12