US v. Gagarin, No. 18-10026 (2-13-2020)(Gould w/Bea; concurrence by Friedland). Alert: Circuit inflict! For “aggravated identity theft,” the 9th and the 7th differ in their interpretation of the identity of “another person.”

The 9th affirms the convictions here. In this insurance fraud case, involving submitting fraudulent insurance policies, the 9th finds the defendant “used” a means of identification in forging her cousin’s signature. This was “without lawful authority” despite the cousin’s agreeing to the use of her identity.  Under the 9th’s precedent, the use of an “actual person’s” identity constitutes aggravated identity theft. The 7th Circuit takes a more restrictive approach, requiring no consent. 

The majority opinion criticizes the approach of an en banc 7th Circuit. The concurrence, by Friedland, would be more generous. She agrees the 9th is bound by its own precedent.

The 9th also found no error in imposing a sentencing enhancement for being a manager or supervisor. It also upheld restitution.

Hard fought appeal by Carmen Smarandoiu and Candis Mitchell of Cal N (San Francisco). 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/13/18-10026.pdf