Criminal Practice – Passport Fraud – Identity Theft – Conspiracy

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U.S. v. Luke. (Lawyers Weekly No. 10-01-1201, 15 pp.) (Wilkinson, J.) No. 09-4543, Dec. 8, 2010; USDC at Baltimore (Motz, J.) 4th Cir. Click here for the full text of the opinion.

Holding: A defendant who changed his son’s name and obtained a variety of identification documents and then applied for a passport in that name, can be convicted of conspiracy to commit identification document fraud and aggravated identity theft, says the 4th Circuit.

Defendant contends the district court erred in denying his motion for acquittal on count one. He argues his conviction cannot stand because his conduct did not fall within the ambit of 18 U.S.C. §§ 1028(a)(2) or (a)(4) – the substantive offenses he is charged with having conspired to commit. The evidence clearly showed that he conspired to have passports transferred to him and to transfer those passports to the fraudulent applicants upon receipt.

As he points out, there is no evidence the passport he attempted to obtain was “stolen.” His theory is that § 1028(a)(2) simply does not apply in situations where individuals induce clerks, officials or other governmental actors to unknowingly dole out fraudulent identification documents.

Our precedent, as in U.S. v. Rashwan, 328 F.3d 160 (4th Cir. 2003), undermines the very type of argument that defendant advances. The goal of the statute was to address the increasing use of false identification documents to facilitate crimes. In reality, defendant seeks nothing less than to transfer the mens rea requirement of the offense from himself to government officials. But of course, the statute is not written in any such fashion.

 Defendant also argues that the passport he sought to obtain is not an “identification document” within the context of the statute. To the extent he argues that a passport is never an identification document, that contention lacks merit. Passports plainly fall within the statutory definition of an identification document. If he is arguing that the statute does not permit prosecutions in situations where a defendant conspires to have a passport transferred to him by an agency, he is incorrect. Defendant’s conduct represents the precise type of crime that § 1028(a)(2) was enacted to punish.

Defendant also argues he did not conspire to knowingly possess an identification document, other than one issued lawfully for the use of the possessor, authentication feature or false identification document, with the intent it be used to defraud the U.S. We have not, to date, construed the term intent to defraud in § 1028(a)(4) or determined what kind of proof the government must bring forth to satisfy that element.

Here, there was sufficient evidence to prove defendant’s conduct fit within any reasonable definition of the term. Both applications asserted the applicants wanted passports to travel outside the U.S. One application was more particular: the applicant there sought a passport in order to travel to Nigeria in December 2007. Defendant confirmed that statement of purpose during his meeting with the U.S. Passport Agency’s fraud prevention manager in Philadelphia.

Defendant conspired to violate § 1028(a)(4) in yet another way: by possessing the Social Security and Selective Service cards issued to Jonathan Osuagwu, his son’s changed name, with the intent to defraud the U.S. by submitting those documents in support of a fraudulent passport application. In submitting those cards, defendant defrauded the U.S. by attempting to induce the creation of a false passport.

All of defendant’s arguments can be boiled down to one basic source: His attempt to read 18 U.S.C. § 1028 as restrictively as possible. But Congress enacted the statute to stem the prevalent use of false identification documents in facilitating dangerous and destructive crimes. Defendant committed all sorts of fraud against the government, and the acts he conspired to commit fall precisely within the parameters of §§ 1028(a)(2) and (a)(4).

Convictions affirmed.