Sunday, February 16, 2020

Case o' The Week: Theft With No Steal Still Loses Appeal - Gagarin and Aggravated Identity Theft

  What is the the difference between identity theft, and identity fraud, in the Ninth?
   Five letters (and two years).
   United States v. Gagarin, 2020 WL 727761 (9th Cir. Feb. 13, 2020), decision available here.

 Players: Decision by Judge Gould, joined by Judge Bea. Concurrence by Judge Friedland. Hard fought appeal by ND Cal Appellate Chief Carmen Smarandoiu.  

Facts: Karen Gagarin participated in an insurance fraud conspiracy. Id. at *1. Gagarin’s cousin, Gilroy, asked Gagarin to secure a policy for her. Id. at *3. Gilroy testified that Gagarin instructed her to lie about her place of employment. Id. The application, apparently submitted by Gagarin, contained false information about employment, salary, and the nature of Gilroy’s relationship with the beneficiary. Id. There were several electronic signatures purporting to be by Gilroy. Id. at *2.
  Gagarin was convicted after trial of, among other counts, aggravated ID theft for the Gilroy application, in violation of 18 USC § 1028A. Id.

Issue(s): “Gagarin challenges the district court’s denial of her post-trial motion for a judgment of acquittal on the aggravated identity theft count . . . .” Id. at *1. “Gagarin claims that three essential elements were not satisfied, contending that (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.’” Id. at *4.

Held: “Gagarin attempt[ed] to pass herself off as her cousin through forgery and impersonation. . . . . [T]he use of another person’s means of identification makes a fraudulent claim for payment much harder to detect. . . and Gagarin’s forgery of her cousin’s signature did just that by obscuring her own role in the fraudulent application. Her use of Gilroy’s means of identification was thus central to the fraud and ‘furthered and facilitated’ its commission. [W] e hold that Gagarin’s actions constituted ‘use’ under the meaning of the aggravated identity theft statute.” Id. at *4 (internal quotations and citations omitted).
  “Gagarin also contends that she did not act ‘without lawful authority, a required element of aggravated identity theft. We disagree. . . . Whether a particular use was ‘itself illegal’ relates to the degree of connection between the use of the identity and the predicate felony. But the statute already contains language about the required nexus: the use must be ‘during and in relation to’ specified unlawful activity. Here, for the reasons stated above, Gagarin used Gilroy’s identity during and in relation to the wire fraud that Gagarin does not challenge occurred here. Gagarin has not shown that use ‘without lawful authority’ required more in this case.” Id. at *5.
  “[E] ven 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.’ Id. at *6.

Of Note: Supervise an intern? That can earn you +3 offense levels for being a manager or supervisor. Id. at *7. The Ninth’s affirmance of this sentencing enhancement is another disappointing aspect of a frustrating opinion.

How to Use: In a thoughtful decision, the Seventh Circuit narrowed this expansive statute by limiting the term, “another person” to refer to a person who did not consent to the use of the means of identification.” See United States v. Spears, 729 F.3d 753, 758 (7thCir. 2013) (en banc). Gagarin author Judge Gould makes a point of criticizing the Spears analysis. Id. at *6.
  In a brief, but insightful, concurrence, Judge Friedland muses that the Seventh actually seems to have gotten it right. Gagarin, 2020 WL 727761, at *10 (Friedland, J., concurring).
  Read Judge Friedland’s concurrence and preserve the challenge when faced with a § 1028A charge that – like here – involved a person who consented to the use of an identity. Judge Friedland’s valid concerns may someday win the day.
Attorney General William Barr
For Further Reading: Turns out that we and DOJ agree: the Guidelines are far too harsh, line-AUSAs do seek far too much custody time, and reasonable sentences should involve far less incarceration.
   For one of many summaries of last week’s stunning Stone sentencing saga, see a NBC News article here
  Here’s hoping your federal client is the subject of a sympathetic White House Tweet, and a helpful sentencing-mitigation memo from Attorney General Barr.

Image of “You Can’t Steal Something That’s Been Given To You” from

Image of the Honorable Attorney General William Barr from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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