In United States v. Gagarin, --- F.3d ---, No. 18-10026 (9th Cir. 2020), the Court affirmed a conviction for aggravated identity
theft under 18 U.S.C. § 1028A(a)(1), a three-level role sentence
enhancement, and the restitution order.
The case arose from a scheme to defraud an insurance company by submitting fraudulent life insurance applications.
The defendant was convicted of the 1028A based on an application she submitted for her cousin. The cousin testified she had asked for the policy and had intended to pay it, but had not been the one to sign it.
On appeal, the defendant argued that, given her cousin's consent, the evidence was insufficient to support the conviction because: "(1) she did not 'use' a means of
identification 'during and in relation to' the commission of
wire fraud under the terms of the statute, (2) she did not act 'without lawful authority,' and (3) she did not use the means
of identification of 'another person.'"
The Court rejected each of these arguments.
First, it held, "Gagarin purported to take action on behalf of her
cousin Melissa Gilroy, and in so doing used Gilroy’s identity
to further the fraudulent insurance application."
Second, "[w]e have further held that
§ 1028A’s prohibition of the use of another person’s means of identification 'without lawful authority' 'clearly and
unambiguously encompasses situations . . . where an
individual grants the defendant permission to possess his or
her means of identification, but the defendant then proceeds
to use the identification unlawfully.'"
Third, the Court declined to adopt the Seventh Circuit's construction of the term "another person" to mean only a person who did not consent to the
information’s use: "even if Gagarin had Gilroy’s consent, we
follow our circuit precedent to hold that Gagarin used the means of identification of 'another person' by using the
identification of another 'actual person.'"
As to the Guidelines issue, the Court explained, "[a]lthough '[i]t is not necessary that the district court make
specific findings of fact to justify the imposition of the role
enhancement,' there must be evidence in the record to
support the enhancement.'" On the facts before it, the Court found sufficient evidence.
Finally, the Court affirmed the joint and several restitution order.
