Players: Decision by Judge Rawlinson, joined by Judge Graber and visiting CD Cal District Judge Wright II.
Facts: Blixt forged her boss’s signature on checks made out to herself. Id. at *1. At trial, she unsuccessfully objected to jury instructions that equated a forged signature with a “means of identification” for 18 USC § 1028A (the “aggravated identity theft” statute, which carries a two-year consecutive mandatory minimum). Id. at *2. She also raised the issue in a Rule 29 motion. Id. at *2. Blixt was convicted, sentenced to forty-eight months, and appealed. Id.
Issue(s): “Blixt contends that the district court erred as a matter of law when it ruled that a signature is a name for purposes of [the] Aggravated Identity Theft statute . . . . Blixt asserts that she did not use another's name, she merely forged a signature, and because a forged signature is not separately identified as a “means of identification” under § 1028A, her actions did not violate the statute.” Id. at *3 (internal quotations omitted) (emphases added).
Held: “Whether the use of another’s signature constitutes a ‘means of identification’ for purposes of the Aggravated Identity Theft statute has not yet been resolved by this or any other circuit. Finding no prior authority on the issue, we hold as a matter of first impression 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.
Of Note: In Blixt, Judge Rawlinson jumps the Ninth out in front of all federal circuits to create a brand new rule (and a particularly bad one at that). Section 1028A of Title 18 is the (relatively) new “aggravated identity theft” statute, that tacks a two-year mandatory minimum sentence on top of the sentence for, for example, mail fraud charges. Like 21 USC § 851, Section 1028A is a mandatory-minimum statute that has been thoroughly abused by prosecutors to coerce unfair dispositions or discourage motions or trials – one notable example in the Northern District of California had an AUSA threatening to stack § 1028A counts to create a double-digit mandatory minimum sentence in a routine fraud case.
Blixt (another lamentable Montana case) has the Ninth expanding criminal liability for Section 1028A by converting the state crime of forgery, into the federal crime of identity theft. Here’s the new rule: now you don’t need a fake I.D., stolen routing numbers, or hacked identity codes – just scrawl someone else’s signature and it’s a two-year mand-min federal crime for "aggravated" identity theft!
Contrast Blixt to Judge Silverman's recent decision in Miranda-Lopez, where the Ninth held that the Rule of Lenity required that this terrible statute requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, 532 F.3d 1034 (9th Cir. 2008), blog here.
Hard to reconcile the spirits of Blixt and Miranda-Lopez. Blixt merits en banc review – this brand new federal rule will allow AUSAs to convert routine state forgery cases into stacked two-year mandatory minimum charges. The decision flatly ignores the Rule of Lenity, and offers little analysis for its dramatic expansion of criminal liability for these mandatory-minimum charges. If it survives, Blixt will spark a split – and the Ninth will find itself on the wrong side.
How to Use: While challenges to Blixt are underway, remember this red flag:
If you have a forged signature in a federal case, read the outline mentioned below and ask if the forged signature is “in relation to” a felony enumerated in Section 1028A(c). If so, re-evaluate the cost-benefit analysis of motions or trial – a superseding § 1028A count or two can dramatically change the exposure of an otherwise minor case.For Further Reading: We’ve previously plugged Boston AFPD Martin Richey’s excellent outline on identity theft: here’s another pitch for it as well as a link.
Image of Judge Johnnie Rawlinson from http://www.pepperdine.edu/pr/releases/2007/may/solgrad07.htm
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org