2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-9-2011 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3170

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3170

___________ UNITED STATES OF AMERICA

v. CHRISTOPHER ALAN BROWN, Appellant

_______________________ On Appeal from the Distri ct Court of the Virgin Islands

Division of St. Croix D.C. Criminal No. 10

- cr - 00014

- 001 (Honorable Anne E. Thompson and Honorable Raymond L. Finch )

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 11, 2011 Before: SCIRICA , RENDELL and AMBRO , Circuit Judges

.

(Filed : June 9, 2011)

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge

. Christopher Brown was indicted by a grand jury in the U.S. Virgin Islands of one count of aggravated identity theft du ring and in relation to the offense of bank fraud. After a bench trial, Brown was convicted and sentenced to two years’ imprisonment and2



### four years’ supervised release. On appeal, Brown argues the counterfeit identification he used was insufficient to supp ort his conviction. We will affirm.
I. In January 2008, police arrested Brown and his girlfriend, Heather Golden, in Houston, Texas after they presented a counterfeit check to purchase jewelry. Brown and Golden had schemed to defraud multiple jewelry stor es by buying jewelry using fraudulent checks. After release on bail, Brown and Golden fled to the mobile home of Golden’s stepfather, Scott Nevins, in Austin, Texas. In Austin, Brown and Golden met Jason Brooks, who was renting a trailer owned by Robert St orey, Golden’s family friend and a resident of St. Croix. Storey’s trailer is located on Nevins’s property. After spending one night in Nevins’s home, Brown took without permission Brooks’s expired Texas driver’s license from the glove compartment of Brook s’s unlocked truck. Brown and Golden subsequently fled to St. Croix. Before leaving Texas, they purchased a counterfeit Arkansas identification card. The false card displayed the name “Jason Brooks” and Brooks’s birth date as obtained from his driver’s l icense, along with a fabricated address and Brown’s photograph. In St. Croix, Brown and Golden resumed their scheme. They used a check

- making software program to print checks in the name of “Jason Brooks” that displayed account and routing numbers taken wi thout permission from the payroll checks of the business “Cheeseburgers in Paradise.” Brown and Golden used these checks to buy goods at stores in both St. Croix and St. Thomas, including $10,170 worth of jewelry from H. Stern Jewelry Store (H. Stern) in S t. Thomas. For the3



### H. Stern purchase, Brown identified himself using the counterfeit Arkansas identification card. On April 17, 2008, Brown attempted to use a fraudulent check to buy jewelry from the store Cruzan Gold in St. Croix. The vendor alerted polic e, who arrested Brown. Brown and Golden were charged under 18 U.S.C. § 1344 with conspiracy to commit bank fraud in connection with their scheme to defraud H. Stern. Brown was also charged with aggravated identity theft under 18 U.S.C. § 1028(A) for assum ing the identity of another individual during the transaction. Brown and Golden initially pleaded guilty, bu t Brown withdrew his plea. In February 2010, Brown was charged with forty

- five counts of various offenses. These charges included possession of con traband while incarcerated, conspiracy to possess counterfeit securities, and substantive bank fraud, as well as the aforementioned conspiracy to commit bank fraud and aggravated identity theft. Brown pleaded guilty to all except aggravated identity theft. On March 30, 2010, a federal grand jury indicted Brown of one count of aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. Following a bench trial on April 6, 2010, the District Court convicted Brown. On July 15, 2010, the
court se ntenced Brown to two years’ imprisonment and four years’ supervised release to run consecutively. Brown timely appealed. 1


### II.

1 

### The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.4



### On appeal, Brown contends the government produced insufficient evidence to sustain his conviction for aggravated identity theft. 2 

### He claims the counterfeit identification he used was insufficient to identify a specific person. We disagree. To prove aggravated identity theft, the government had to show beyond a reasonable doubt that Brown “knowingly transfer[red], possesse[d], or u se[d], without lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). 3


### A “means of identification” consists of: any name or number that may be used, alone or in conjunction with any other information, to identify a specifi c individual, including any

- (A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or

2 

### Upon a challenge to the sufficiency of evidence, “we review the evidence in the light most favorable to the government.” Uni ted States v. Applewhaite , 195 F.3d 679, 684 (3d Cir. 1999). We will affirm “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent , 149 F.3d 180, 187 (3d Cir. 1998) (internal qu otation marks omitted). 3 

### The aggravated identity theft statute provides: “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.” 18 U.S.C. § 1028A(a)(1). Section 1028A(c)(5) defines “felony violation enumerated in subsection (c)” to include “any provisio n contained in chapter 63 (relating to mail, bank, and wire fraud)” among qualifying felony violations. Brown pleaded guilty to bank fraud under 18 U.S.C. § 1344.5 

### (D) telecommunication identifying information or acces s device (as defined in section 1029(e))[.] 18 U.S.C. § 1028(d)(7). Brown argues United States v. Mitchell , 518 F.3d 230 (4th Cir. 2008), supports reversal of his conviction. In Mitchell , the defendant selected a corresponding first and last name, city a nd state of residence, and year of birth from a phone book to create a false license. The counterfeit license contained no middle name and a fabricated house number, street name, month and day of birth. The court found these “non

- unique identifiers . . . w ere a hopeless muddle of matching and non

- matching information,” and “the non

- matching identifiers . . . were much more specific.” Id. at 236. Furthermore, the defendant appropriated no “unique identifier” that might identify an individual alone,
such as a social security or identification number. Id. Brown contends his counterfeit Arkansas identification card did not display Brooks’s middle name, Brooks’s Texas address, or Brooks’s individual identification number, all of which appear on Brooks’s Texas d river’s license. Brown argues these distinctions and omissions render the fraudulent Arkansas identification card incapable of constituting a “means of identification” of the Jason Brooks from whom Brown stole a
Texas license. When viewed in the light mo st favorable to the government, there was sufficient evidence for the District Court to conclude Brown knowingly used Brooks’s “means of identification” and to convict Brown of aggravated identity theft. Brooks was an individual known to Brown whose driver ’s license Brown stole. From the first and last6



### name, as well as the day, month, and year of birth on that license, Brown fashioned a counterfeit identification card he used to commit bank fraud. This information is more complete and specific to Brooks tha n the information found insufficient by the Fourth Circuit in Mitchell . Section 1028(d)(7) requires Brown to knowingly use information that constitutes a “means of identification” of a specific individual to support a conviction for aggravated identity the ft. The District Court reasonably concluded the matching names and birth date on Brooks’s genuine Texas driver’s license and Brown’s counterfeit Arkansas identification card did just that.
III. For the foregoing reasons, we will affirm the judgment of co nviction and sentence.