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United States v. Gatwas

United States Court of Appeals, Eighth Circuit

December 3, 2018

United States of America Plaintiff - Appellee
v.
Lony Tap Gatwas Defendant-Appellant

          Submitted: September 28, 2018

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         For tax years 2009 to 2013, Lony Tap Gatwas prepared personal income tax returns for his Des Moines clients that obtained inflated refunds by falsely claiming dependents, including returns that reported several of Gatwas's eight children as dependents of his clients. A Southern District of Iowa jury convicted Gatwas of multiple counts of wire fraud, aggravated identity theft, and preparing false tax returns. The district court[1] sentenced him to 45 months in prison, 21 months for the wire and tax fraud counts and the statutorily mandated consecutive 24 months for aggravated identity theft. Gatwas appeals the judgment that he committed seven counts of aggravated identity theft, arguing the district court erred in denying his motion for acquittal and in instructing the jury on the elements of this offense because the court misconstrued the term "uses, without lawful authority," in 18 U.S.C. § 1028A(a)(1). We review this question of statutory interpretation de novo. Tramp v. United States, 978 F.2d 1055, 1055 (8th Cir. 1992). We conclude the issue is essentially controlled by our prior decisions in United States v. Retana, 641 F.3d 272, 273-76 (8th Cir. 2011), and United States v. Hines, 472 F.3d 1038, 1038-40 (8th Cir. 2007), and therefore affirm.

         Congress enacted Section 1028A in 2004 to provide a mandatory minimum sentence for most identity theft offenses already prohibited by 18 U.S.C. § 1028(a)(7). See Identity Theft Penalty Enhancement Act, Pub. L. No. 108-275 § 2, 118 Stat. 831. Section 1028A(a)(1) defines the aggravated identity theft offense at issue:

(1) In General. -- Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

         Thus, to convict Gatwas of these charges, the government needed to prove that he (1) knowingly used (2) a means of identification of another person (3) without lawful authority (4) during and in relation to committing a felony enumerated in § 1028A(c) (here, a wire fraud violation of 18 U.S.C. § 1343). 18 U.S.C. § 1028A(a)(1), (c)(5); Hines, 472 F.3d at 1039. Gatwas does not challenge the jury's verdict that he knowingly used the names and social security numbers of falsely claimed dependents, including his own children, in committing wire fraud. He argues only that he did not "use" their means of identification "without lawful authority."

         Gatwas argues, based on the statute's text and context, that the term "uses, without lawful authority," requires proof that he stole or assumed the identity of another person. Thus, the district court erred in denying his acquittal motion because he neither stole nor assumed the identities of the children he falsely claimed as his clients' dependents. Since its enactment in 2004, the scope of § 1028A(a)(1) has been frequently challenged because the offense triggers a mandatory consecutive penalty for those convicted of the many felonies enumerated in subsection (c)(5).

         Defendants in nearly every circuit have argued that the statute does not apply if they used another person's means of identification with his or her permission because consensual use is not use "without lawful authority." As Gatwas concedes, that argument has been widely rejected. We confirmed in Retana that our decision in Hines "held that the use of another person's social security number for an illegal purpose satisfied the statute as a use 'without lawful authority' regardless of whether that use occurred with or without the other person's permission." 641 F.3d at 275. Theft or misappropriation of a victim's identity is not an essential element of the offense. See, e.g., United States v. Mahmood, 820 F.3d 177, 187-88 (5th Cir. 2016), and cases cited. Thus, when Gatwas used the names and social security numbers of actual children, including his own, during and in relation to his wire fraud, whether the minors "consented" to the use was irrelevant.

         Gatwas correctly notes that, in both Hines and Retana, the defendant assumed the identity of another person, so the holdings in those cases do not refute his argument that "uses, without lawful authority," requires proof that he stole or assumed the identity of another person. But this argument has nothing to do with the term "without lawful authority." Rather, its substance is that we should limit the meaning of the word "use" to circumstances in which the defendant misappropriated another person's identity in committing an enumerated felony.

         Numerous prior decisions have upheld § 1028A(a)(1) convictions where the defendant neither stole nor assumed the identity of the other person. See United States v. White, 846 F.3d 170, 177-78 (6th Cir. 2017) (travel agent passed off false military identification cards as clients' means of identification); United States v. Reynolds, 710 F.3d 434, 435-36 (D.C. Cir. 2013) (use of false church officer signatures to increase church's authorized borrowing); United States v. Dvorak, 617 F.3d 1017, 1024-27 (8th Cir. 2010) (chiropractor submitted false claims for children he did not treat to obtain Medicaid reimbursement). Indeed, Gatwas urges a more restrictive meaning than the meaning adopted in the case he relies on to establish a circuit conflict. In United States v. Berroa, the First Circuit "read the term 'use' to require that the defendant attempt to pass him or herself off as another person or purport to take some other action on another person's behalf." 856 F.3d 141, 156-57 (1st Cir. 2017) (emphasis added). Here, Gatwas fraudulently used the identities of children to obtain tax refunds on behalf of his clients (thereby earning tax preparer fees for himself).

         Our sister circuits have construed the word "use" broadly, relying on the statute's causation element -- that the use be during and in relation to an enumerated felony -- to limit its scope. See United States v. Michael, 882 F.3d 624, 628 (6th Cir. 2018) ("The salient point is whether the defendant used the means of identification to further or facilitate the health care fraud."); United States v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013) ("a defendant who uses the means of identification of another 'during and in relation to any felony violation enumerated' in the statute necessarily lacks a form of authorization recognized by law"); United States v. Mobley, 618 F.3d 539, 547-48 (6th Cir. 2010) ("That a defendant's use of any social security number --including his own -- to submit fraudulent credit applications must be 'without lawful authority' is obvious," quoted in Retana, 641 F.3d at 275); United States v. Maldonado, 731 Fed.Appx. 831, 833 (11th Cir. 2018).

         These prior cases establish that the interpretation of § 1028A(a)(1) urged by Gatwas on appeal is unsound. Therefore, his motion for judgment of acquittal was properly denied. Gatwas more or less concedes that the causation element of the § 1028A(a)(1) offense, requiring that the knowing use be "during and in relation to" an enumerated felony, places an important limitation on the sweep of the statute. However, he protests, the broad interpretation of "uses, without lawful authority," adopted by other circuits renders this term superfluous: if any transfer, possession, or use of another person's means of identification "during and in relation to" an enumerated felony is illegal, he argues, it could never be done with lawful authority. As the Supreme Court is "reluctant to treat ...


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