United States v. Robert Alexander , 725 F.3d 1117 ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA ,               No. 12-30156
    Plaintiff-Appellee,
    DC No.
    v.                       3:11-cr-05352
    RBL-1
    ROBERT KENT ALEXANDER,
    Defendant-Appellant.          OPINION
    Appeal from the United States District Court
    for the Western District of Washington
    Ronald B. Leighton, District Judge, Presiding
    Argued and Submitted
    April 9, 2013—Seattle, Washington
    Filed August 6, 2013
    Before: Dorothy W. Nelson, A. Wallace Tashima, and
    Consuelo M. Callahan, Circuit Judges.
    Opinion by Judge Tashima
    2               UNITED STATES V . ALEXANDER
    SUMMARY*
    Criminal Law
    Affirming a conviction for aggravated identity theft, the
    panel held that a victim’s true name and banking numbers
    appearing on a counterfeit check are a “means of
    identification” for purposes of 18 U.S.C. §§ 1028A,
    1028(d)(7).
    COUNSEL
    Alan Zarky (argued) and Colin Fieman, Assistant Federal
    Public Defenders, Tacoma, Washington, for Defendant-
    Appellant.
    Michael S. Morgan (argued), Assistant United States
    Attorney; Jenny A. Durkan, United States Attorney for the
    Western District of Washington, Seattle, Washington, for
    Plaintiff-Appellee.
    OPINION
    TASHIMA, Circuit Judge:
    We must decide whether a counterfeit paper check that
    bears a victim’s true name, bank account number, and routing
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V . ALEXANDER                    3
    number is a “means of identification of another person” for the
    purposes of the aggravated identity theft statute, 18 U.S.C.
    §§ 1028A, 1028(d)(7)). The district court answered in the
    affirmative and returned a judgment of conviction. We have
    jurisdiction under 
    28 U.S.C. § 1291
     and, for the following
    reasons, we affirm.
    I.
    While employed as a newspaper deliveryman, Robert Kent
    Alexander stole mail belonging to two individuals who resided
    along his delivery route, M.S. and V.S. (“the Snows”). The
    stolen mail contained a check imprinted with the Snows’
    names, address, bank account number, and bank routing
    number. Alexander used the stolen check to create a second,
    counterfeit check bearing the false name “Robert C. Snow”
    (listed as a joint account holder along with the Snows), a false
    Washington State ID number for Robert Snow, and the
    Snows’ true bank account and routing numbers.
    Alexander then used the counterfeit check and a fake ID
    card in the name “Robert Charles Snow,” a card that bore
    Alexander’s picture, to make a $158.06 purchase at Walmart.
    Alexander was on supervised release at the time and, several
    days prior to the Walmart transaction, a warrant had been
    issued for his arrest alleging various supervised release
    violations. During a subsequent search of Alexander’s
    residence, probation officials discovered the counterfeit check.
    The Snows later reported the Walmart transaction as an
    unauthorized debit.
    Alexander was charged with aggravated identity theft in
    violation of 18 U.S.C. § 1028A (count 1), bank fraud in
    4              UNITED STATES V . ALEXANDER
    violation of 
    18 U.S.C. § 1344
     (count 2), passing a forged or
    altered check in violation of 
    18 U.S.C. § 513
    (a) (count 3), and
    possessing stolen mail in violation of 
    18 U.S.C. § 1708
     (count
    4). He pleaded guilty to counts 2, 3, and 4. A bench trial was
    held on count 1, which charged that Alexander “knowingly
    used, without lawful authority, a means of identification of
    another person, to wit, the name and Peninsula Credit Union
    account number of M.S. and V.S., during and in relation to a
    felony listed in . . . Section 1028A(c), to wit, bank fraud, in
    violation of . . . Section 1344.” Alexander stipulated to the
    relevant facts but moved for a judgment of acquittal on the
    grounds that his conduct did not amount to a violation of
    § 1028A. He argued that, as a matter of statutory
    interpretation, the passing of a stolen check cannot form the
    basis of an aggravated identity theft conviction. He noted that
    § 1028A(a)(1) requires the unlawful use of “a means of
    identification of another person,” a term statutorily defined as
    “any name or number that may be used, alone or in
    conjunction with any other information, to identify a specific
    individual, including any . . . access device []as defined in [18
    U.S.C.] section 1029(e).” 
    18 U.S.C. § 1028
    (d)(7). But
    because the term “access device” is defined elsewhere in Title
    18 as excluding paper checks, see 
    id.
     § 1029(e)(1), Alexander
    argued that the names and numbers on his counterfeit check
    were, as a matter of law, not a “means of identification.”
    The district court rejected Alexander’s proposed reading
    of the statute and, following a one-day bench trial, Alexander
    was convicted of aggravated identity theft. The court
    sentenced Alexander to a total of seventy-two months’
    imprisonment followed by five years of supervised release and
    $158.06 of restitution.
    UNITED STATES V . ALEXANDER                    5
    II.
    We review de novo the district court’s interpretation of a
    criminal statute. See United States v. Keyser, 
    704 F.3d 631
    ,
    640–41 (9th Cir. 2012). Our analysis begins with the plain
    language of the statute. United States v. Williams, 
    659 F.3d 1223
    , 1225 (9th Cir. 2011). “If the plain meaning of the
    statute is unambiguous, that meaning is controlling and we
    need not examine legislative history as an aide to
    interpretation unless the legislative history clearly indicates
    that Congress meant something other than what it said.” 
    Id.
    (internal quotation marks and citation omitted).
    The plain language of the aggravated identity theft statute
    answers the question before us: a victim’s true name and
    banking numbers, appearing on a counterfeit check, are “any
    name or number that may be used . . . to identify a specific
    individual.” 
    18 U.S.C. § 1028
    (d)(7). Accordingly, we agree
    with the district court that the Snows’ personal information
    appearing on Alexander’s counterfeit check was a “means of
    identification.”
    A.
    Aggravated identity theft involves the knowing transfer,
    possession, or use of “a means of identification of another
    person.” 
    Id.
     § 1028A(a)(1). The statute defines a “means of
    identification” as
    any name or number that may be used, alone
    or in conjunction with any other information,
    to identify a specific individual, including any–
    6             UNITED STATES V . ALEXANDER
    (A) name, social security number, date of
    birth, official State or government issued
    driver’s license or identification number, alien
    registration number, government passport
    number, employer or taxpayer identification
    number;
    (B) unique biometric data, such as
    fingerprint, voice print, retina or iris image, or
    other unique physical representation;
    (C) unique electronic identification
    number, address, or routing code; or
    (D) telecommunication identifying
    information or access device (as defined in
    section 1029(e))[.]
    Id. § 1028(d)(7). Subsection (D) of the aggravated identity
    theft statute cross-references the access-device fraud statute,
    which defines “access device” as
    any card, plate, code, account number,
    electronic serial number, mobile identification
    number, personal identification number, or
    other telecommunications service, equipment,
    or instrument identifier, or other means of
    account access that can be used, alone or in
    conjunction with another access device, to
    obtain money, goods, services, or any other
    thing of value, or that can be used to initiate a
    transfer of funds (other than a transfer
    originated solely by paper instrument)[.]
    UNITED STATES V . ALEXANDER                            7
    Id. § 1029(e)(1) (emphasis added). Alexander argues that his
    counterfeit check effected a “transfer originated solely by
    paper instrument” under the parenthetical language of
    § 1029(e)(1); we assume, without deciding, that he is correct.1
    According to Alexander, by incorporating the access-device
    definition from § 1029(e)(1) into § 1028(d)(7)(D), Congress
    excluded check forgery from the crime of aggravated identity
    theft. We decline to adopt Alexander’s grossly atextual
    reading of the statute.
    It is plain from the language of § 1028(d)(7) that although
    every access device is a means of identification, not all means
    of identification are access devices. The term “access device”
    appears in § 1028(d)(7)(D), one of four subsections that
    illustrate the sorts of “name[s] or number[s]” that meet the
    definition of a “means of identification.” Subsections (A)
    through (D) are connected by the disjunctive “or,” indicating
    that no single subsection is necessary to the definition.2
    Moreover, subsections (A) through (D) are preceded by the
    word “including,” which suggests that the list is illustrative
    rather than exhaustive. See United States v. Wyatt, 
    408 F.3d 1257
    , 1261 (9th Cir. 2005). Thus, whether Alexander’s
    1
    Accordingly, we do not reach the Government’s alternative argument
    that the transaction was actually an electronic funds transfer.
    2
    See United States v. Romero-Martinez, 
    443 F.3d 1185
    , 1189 (9th Cir.
    2006); see also United States v. Lewis, 443 F. App’x 493, 495–96 (11th
    Cir. 2011) (per curiam) (“[A]n ‘access device’ is only one of several
    items that Congress listed, in the disjunctive, as a ‘means of
    identification.’ Thus, simply failing to satisfy the definition of ‘access
    device’ does not end the analysis with respect to whether a signature on
    a stolen check is a ‘means of identification.’” (citation omitted)), cert.
    denied, 
    132 S. Ct. 2742
     (2012).
    8             UNITED STATES V . ALEXANDER
    counterfeit check was an “access device” does not answer the
    question whether the names and banking numbers on his
    counterfeit check were a “means of identification.” For that
    answer, we must look to § 1028(d)(7)’s introductory
    paragraph, as well as the examples provided in subsections (A)
    through (C).
    Alexander does not dispute that his counterfeit check
    contained the Snows’ names, bank account number, and
    routing number. “[A]ny name or number that may be used,
    alone or in conjunction with any other information, to identify
    a specific individual” is a “means of identification” under
    § 1028(d)(7). Subsection (A) reiterates that any “name”
    meets the definition. 
    18 U.S.C. § 1028
    (d)(7)(A). Moreover,
    a “routing code” expressly meets the definition of a “means of
    identification” under § 1028(d)(7)(C). The names and
    banking numbers on Alexander’s counterfeit check are
    therefore a “means of identification” under the plain statutory
    text.
    B.
    Perhaps recognizing that his proposed reading of the
    statute runs headlong into some very obvious textual
    problems, Alexander argues that treating a victim’s name and
    banking numbers on a counterfeit check as a “means of
    identification” would render § 1029(e)(1) – the provision that
    excludes paper-instrument transfers from the definition of an
    access device – a nullity. He asks us to “give effect” to
    § 1029(e)(1)’s paper-instrument exclusion by holding that the
    names and numbers on his counterfeit check were not a
    “means of identification.” The argument suffers a number of
    flaws.
    UNITED STATES V . ALEXANDER                      9
    As an initial matter, Alexander’s nullity argument rests on
    a logical fallacy. A transfer originated solely by paper
    instrument is not an access device at all; as such,
    § 1028(d)(7)(D) has no application.3 Stated differently, the
    only “effect” of the paper-instrument exclusion is in defining
    the contours of the term “access device.” See id.
    § 1029(e)(1). Assuming, for the sake of argument, that
    Alexander’s counterfeit check was not an “access device”
    because it effected a “transfer originated solely by paper
    instrument,” the access-device definition – and its paper-
    instrument exclusion – simply play no further role in the
    analysis. Id. We fail to see how a subsection that has no
    application to begin with can be rendered a nullity.
    In any event, our interpretation of § 1028(d)(7) does not
    render § 1029(e)(1)’s paper-instrument exclusion a nullity.
    That exclusion continues to limit the scope of conduct
    prohibited by the access-device fraud statute. See id.
    § 1029(e)(1). And the definition of an “access device”
    continues to have practical significance in other contexts. See,
    e.g., U.S.S.G. § 2B1.1(b)(11) (2012) (imposing a two-level
    sentencing increase for select offenses involving “the
    production or trafficking of any . . . unauthorized access
    device or counterfeit access device”); Id. cmt. 9(A) (defining
    “counterfeit access device” and “unauthorized access device”
    by the meanings given in § 1029(e)). Alexander offers no
    persuasive argument to the contrary.
    3
    The only other example in subsection (D) – “telecommunication
    identifying information” – is not at issue in this case. 
    18 U.S.C. § 1028
    (d)(7)(D).
    10            UNITED STATES V . ALEXANDER
    C.
    Finally, Alexander argues that treating the victims’ names
    and banking numbers on a counterfeit check as a “means of
    identification” will upset the state-federal balance in the
    prosecution of theft offenses by federalizing check forgery.
    Again, Alexander’s argument is foreclosed by the plain
    statutory language. To the extent that a forged check contains
    a victim’s true name, bank account number, and routing
    number – personal data that easily “may be used . . . to
    identify a specific individual” – such a check plainly and
    comfortably fits within the broad language of § 1028(d)(7)
    (“any name or number”) as well as the specific language of
    subsections (A) (“name”) and (C) (“routing code”).
    We have previously observed that, “[b]y using the word
    ‘any’ to qualify the term ‘name,’ the [aggravated identity
    theft] statute reflects Congress’s intention to construct an
    expansive definition.” United States v. Blixt, 
    548 F.3d 882
    ,
    887 (9th Cir. 2008). In Blixt, we held that “forging another’s
    signature constitutes the use of that person’s name and thus
    qualifies as a ‘means of identification’ under 18 U.S.C.
    § 1028A.” Id. at 886. We explained that “[c]ategorically
    carving out a signature from th[e] definition [of a means of
    identification] . . . would impermissibly narrow the definition
    of ‘name’ in the statute.” Id. at 887. Alexander’s proposed
    construction of the statute poses a similar problem.
    Categorically carving out paper-instrument transfers from the
    definition of a means of identification would impermissibly
    narrow the broad introductory language of § 1028(d)(7),
    which defines “means of identification” in terms of the nature
    of the personal data – “any name or number” – rather than the
    medium on which it is conveyed (e.g., paper instruments).
    UNITED STATES V . ALEXANDER                   11
    Congress knows how to exclude paper-instrument
    transfers from the ambit of a criminal statute. They did so in
    1984, when they defined the term “access device” as part of
    the Credit Card Fraud Act. See Comprehensive Crime
    Control Act of 1984, Pub. L. No. 98-473, 
    98 Stat. 1976
    ,
    2183–84 (codified at 
    18 U.S.C. § 1029
    ). But in 1998, when
    it defined the term “means of identification” as part of the
    Identity Theft and Assumption Deterrence Act, it painted with
    a broader brush. See Pub. L. No. 105-318, 
    112 Stat. 3007
    ,
    3008–09 (1998) (codified at 
    18 U.S.C. § 1028
    (d)). We
    presume that such drafting decisions are deliberate. See
    United States v. Johnson, 
    680 F.3d 1140
    , 1144 (9th Cir.
    2012) (“[W]here Congress includes particular language in one
    section of a statute but omits it in another section of the same
    Act, it is generally presumed that Congress acts intentionally
    and purposely in the disparate inclusion or exclusion.”
    (quoting Kucana v. Holder, 
    558 U.S. 233
     (2010) (internal
    quotation marks omitted)).
    The judgment of conviction is AFFIRMED.