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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:10cr52-RH/WCS

SHANNA MICHELLE LEWIS,

Defendant.

_________________________________/

ORDER DENYING THE MOTION TO DISMISS

A grand jury indicted the defendant Shanna Michelle Lewis on ten counts of

bank fraud, nine counts of making or uttering forged securities, and a single count

of aggravated identity theft in violation of 18 U.S.C. § 1028A. She has moved to

dismiss the identity-theft count on the ground that the statute, properly construed,

does not extend to the conduct at issue. She has agreed with the government to

plead guilty to a single count of bank fraud, a single count of making or uttering a

forged security, and—if the motion to dismiss is denied—the single count of

identity theft. The identity-theft plea would be conditional, preserving the

defendant’s right to appeal the denial of the motion to dismiss. In exchange for the

plea, the government would dismiss the remaining bank-fraud and forged-security
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Case No: 4:10cr52

counts.

It is not at all clear that a motion to dismiss is an available means for a

challenge to a statute’s applicability of the kind Ms. Lewis asserts. But even if the

substantive issue cannot be raised by a motion to dismiss, the issue will be

presented as part of the determination of whether there is a factual basis for the

proposed plea. This order concludes that Ms. Lewis’s substantive contention is

incorrect; the statute does apply to conduct of the kind Ms. Lewis is charged with. 

The motion to dismiss will be denied, and the conditional plea to the identity-theft

count—if Ms. Lewis chooses to enter the plea—will not be rejected for lack of a

factual basis. 

The relevant portion of the identity-theft statute, 18 U.S.C. § 1028A(a)(1),

provides that a person commits the offense if, “during and in relation to” a felony

of a specified kind—including bank fraud—the person “knowingly transfers,

possesses, or uses, without lawful authority, a means of identification of another

person.” Another statute explicitly defines “means of identification”:

the term “means of identification” means any name or number that

may be used, alone or in conjunction with any other information, to

identify a specific 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;
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Case No: 4:10cr52

(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

(D) telecommunication identifying information or access

device (as defined in section 1029 (e)) . . . . 

18 U.S.C. § 1028(d)(7). The definition applies to § 1028A. See § 1028(d) (stating

that its definitions apply “in this section and section 1028A”).

The indictment charges Ms. Lewis with bank fraud. She committed the

offense by preparing corporate checks payable to herself. She affixed to the checks

the facsimile signature of an actual individual identified in the indictment as “T.B.” 

She deposited the checks to her own accounts, thus embezzling the corporation’s

funds. As is undisputed, this constituted the offense of bank fraud and making or

uttering a forged security. 

This conduct also violated the identity-theft statute. Ms. Lewis knowingly

“used” T.B.’s name—a “means of identification”—by affixing his name to the

checks. The name was used “during and in relation to” the bank-fraud and forgedsecurity offenses. And the name was used “without lawful authority,” as Ms.

Lewis surely knew. All of this is rather obvious from the facts alleged by the

government and the plain terms of the statute.

That the “name” at issue was in the form of a signature on a corporate check
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Case No: 4:10cr52

does not change this. A name is no less a name when written in cursive or affixed

electronically. And a name is no less used when included on a corporate check

than when used on a personal check or credit application or some other document

or instrument. The Eleventh Circuit has so held, and there apparently is no circuit

decision to the contrary. See United States v. Raines, 359 F. App'x 966, 967-68

(11th Cir. 2010) (affirming under plain error review a § 1028A conviction for

forging an endorsement on, and cashing, another person’s social security check);

United States v. Cook, 336 F. App’x 875, 877 (11th Cir. 2009) (affirming under

plain error review a § 1028A conviction for passing a fraudulent corporate check

bearing a forged signature of a person authorized to sign on the account); see also

United States v. Silva, 554 F.3d 13, 23 n.14 (1st Cir. 2009); United States v. Blixt,

548 F.3d 882, 886-88 (9th Cir. 2008) (affirming conviction under § 1028A: the

“Aggravated Identity Theft statute defines the term ‘means of identification’ in a

way that makes reasonably clear that forging another's signature on a check

constitutes the use of a means of identification”); United States v. Johnson, 261 F.

App’x 611, 613-14 (4th Cir. 2008) (finding that when checks were drawn against a

corporation named after its founder, the use of the name of the founder either in the

company name or as the forged signatory was sufficient to sustain a § 1028A

conviction).

Ms. Lewis asserts, though, that Congress did not intend for § 1028A to reach
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conduct of this kind. The contention fails for two reasons. First, when Congress

adopts a statute as clear as this one, a court ought not rewrite to accomplish what

the court thinks Congress must really have meant. Second, there is no reason to

think Congress meant for this statute not to reach this conduct. True enough, under

these circumstances, T.B. probably suffered none of the consequences that often

befall a victim of identity theft. But a person whose name is fraudulently signed to

a check surely could suffer such consequences. Not everyone who is defrauded by

means of a check bearing a person’s signature readily concludes the person is

innocent. Being called to account for an instrument that appears to bear one’s

signature—but was actually signed by someone else without authority—is among

the kinds of harm that the identity-theft statute was designed to reach. In short,

there is every reason to believe that Congress intended this statute to mean

precisely what is says, at least as applied in this case.

For these reasons, 

IT IS ORDERED:

Ms. Lewis’s motion to dismiss, ECF No. 13, is DENIED.

SO ORDERED on September 1, 2010.

s/Robert L. Hinkle 

United States District Judge