Monday, December 01, 2008

U.S. v. Blixt, No. 07-30198 (11-26-08). What's in a name? If it is a forged signature, the possible charge of aggravated identity theft. The 9th (Rawlison joined by Graber and Wright) holds that the forging of 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." Here, the defendant forged another's signature on a number of checks. At trial, she argued that a signature is not a means of identification, like a SSN or a driver's license. The signature is just not "a series of lines, curves, and squiggles," but the very essence of identification. Even if the signature is not used by the bank to process the check, it is still a means of identifying the payor, and therefore falls under the statute.

U.S. v. Weyhrauch, No. 07-30339 (11-26-08). This is an interlocutory appeal related to a possible honest services mail fraud. The defendant is a lawyer and was an Alaskan state representative in 2006. The legislature was dealing with oil taxes at the time, and he sent letters to an oil company concerning future legal work if he voted the way they wanted. The indictment alleged no actual compensation or favors, but alleged facts suggesting that he acted favorably to the oil company on the understanding that he would be hired in the future. No actual bribery took place; but the defendant never disclosed any conflicts of interest. There were legislature ethics rules, but no state laws regarding such disclosures. Some of the government's charges were dismissed and this case taken up. The 9th (Fisher joined by Tashima and D. Nelson) hold that a prosecution for federal honest services mail fraud under 1341 and 1346 does not require a state law violation. The case revolves around the definition of "honest services" and the circuits have split on whether there must be a specific state law that is violated (5th Circuit), a violation of a fiduciary duty established by state or federal law (3rd Circuit) or whether honest services is governed by a uniform federal standard inherent in 1346 (4th, 7th, 8th, 10th, and 11th Circuits). The support for a limiting principle is to establish boundaries, and to prevent the federal government from interfering with local or state government. The statute and congressional intent does not seem to narrow the scope, and so the 9th joined the majority of circuits in holding that 1346 establishes a uniform standard for honest services that applies to every public official, and is not limited by a requirement of violation of state laws. As a result, the 9th also reverses the district court's exclusion of certain evidence that goes to proving a violation of honest services even though the evidence is not related to any state law violation. The 9th finally finds that the government managed to appropriately certify this issue on the fourth try.


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