United States v. Ronald Gaither

MEMORANDUM

The government appeals the district court’s dismissal of its charge of aggravated identity theft under 18 U.S.C. § 1028A(a)(l) against defendant Ronald Gaither (“Gaither”). The district court dismissed this count of the indictment because (1) the predicate offenses were not related to terrorism; and (2) the stolen identity belonged to a deceased victim. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand.

First, the predicate charges brought against Gaither, bank fraud and theft of government funds, are expressly listed among those that serve as a basis for an identity theft charge under § 1028A(a)(1). 18 U.S.C. §§ 1028A(c)(1), (5). The district coui-t’s belief that the statute applies only to terrorism-related offenses, rather than “straight bank fraud,” is plainly incorrect.

Second, Gaither’s argument that § 1028A(a)(1) does not criminalize the theft of identity documents belonging to a deceased person is foreclosed by United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir.2010), which held that the term “person” as used in § 1028A(a)(1) includes both living and deceased persons. After the Supreme Court in Flores-Figueroa v. United States, —…