US v. Osuna-Alvarez, No. 13-50636 (6-10-15)(Per curiam with Noonan, Wardlaw and Murguia). "Am I my brother's keeper?" No, at least when it comes to identity theft, passports, and a twin. The defendant crossed the border at the Otay Mesa POE. A dog alerted on his car, where meth -- a lot of meth -- was found. The defendant stated his name was "Hector Osuna," and presented a US Passport. The fingerprint search prove dit was a false name, and the defendant admitted that his real name was Miguel and he was using his twin brother's name.

At trial on the charge of aggravated identity theft, the twin brother claimed he had lost his passport. He denied giving his brother permission to use it. The court (bench trial) found the defendant not credible, and opined that the brother was complicit. The defendant was found guilty.

On appeal, the defendant argued that he did not steal his brother's passport, and therefore did not use it "without lawful authority." The defendant used the finding of complicity to argue that obviously it was given to the defendant, and he was using it with lawful authority. The 9th held, however, that the offense of aggravated identity theft, 18 U.S.C. 1028A(a)(1), despite its title, does not require theft as an element of the offense. The offense clearly includes when a person gives a means of identification to another, and that person uses it unlawfully. The defendant knowingly made use of a means of identification not his own, and therefore did so unlawfully.