United States v . Gallant 09-CR-177-SM 04/16/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 09-cr-177-1-SM Opinion N o . 2010 DNH 070 Robert Gallant
O R D E R
A grand jury returned an eleven-count superseding indictment
against Robert Gallant on January 2 0 , 2010, charging him with six
counts of false representation of a social security number, in
violation of 42 U.S.C. § 408(a)(7)(B) (Counts I , III, IV, V , VII,
and VIII); four counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1) (Counts I I , V I , IX, and X I ) ; and one
count of bank fraud, in violation of 18 U.S.C. § 1344 (Count X ) .
Gallant moves to dismiss Counts I I , V I , IX, X , and X I . The
government objects.
Background
The superseding indictment charges that Gallant falsely
presented a social security number to the New Hampshire
Department of Motor Vehicles as his own (Count I ) , and, in
relation to that crime, he also unlawfully used someone else’s
identity — their name, date of birth, and social security number
(with two of the numerals reversed) (Count I I ) . Similarly, Counts III, IV, and V allege, respectively, that Gallant falsely
presented a social security number as his own to the Gilmanton,
Loudon, and Manchester, New Hampshire, police departments. Count
VI alleges that, in relation to those crimes, Gallant unlawfully
used someone else’s identity — their name, date of birth, place
of birth, and social security number (with two of the numerals
reversed). Following this pattern, Counts VII and VIII allege
that defendant falsely represented a social security number as
his own t o , respectively, the Concord District Court and a local
bail commissioner, and the Rochester District Court and a local
bail commissioner. Count IX alleges that, in relation to Counts
VII and VIII, Gallant unlawfully used someone else’s identity —
their name, date of birth, and social security number (with two
of the numerals reversed).
Count X alleges that Gallant defrauded TD Bank by using
someone else’s identity — their name, date of birth, and social
security number (with two numerals reversed) to open and then
overdraw a checking account. Count XI alleges that, in relation
to Count X , Gallant used someone else’s identity — their name,
date of birth, social security number (with two numerals
reversed), and a fraudulently obtained New Hampshire driver’s
license bearing someone else’s name and date of birth.
2 It is undisputed for purposes of this motion that defendant
used the name, date of birth, and place of birth of Robert Gordon
Mann, who was born on February 2 2 , 1964, in S t . Louis, Missouri.
Robert Mann’s social security number is XXX-XX-9048, while the
social security number defendant used was XXX-XX-0948. The
social security number ending in -0948 was actually issued to one
Mabel Parker, who is now deceased.
Standard of Review
A motion to dismiss counts of an indictment tests the
sufficiency of those counts to charge an offense. See United
States v . Sampson, 371 U.S. 7 5 , 79 (1962); United States v . Bohai
Trading Co., Inc.. 45 F.3d 577, 578 n.1 (1st Cir. 1995); United
States v . Thompson, 595 F. Supp. 2d 143, 145 (D. M e . 2009).
“[A]n indictment is sufficient if i t , first, contains the
elements of the offense charged and fairly informs a defendant of
the charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Hamling v . United States, 418 U.S. 8 7 ,
117 (1974); United States v . Ditomasso, 552 F. Supp. 2d 233, 238
(D.R.I. 2008) (“The issue in judging the sufficiency of the
indictment is whether the indictment adequately alleges the
elements of the offense and fairly informs the defendant of the
charge, not whether the Government can prove its case.”)
3 (quotation marks omitted). Because a challenge to the indictment
does not test the government’s case, “[c]ourts should . . . avoid
considering evidence outside the indictment when testing the
indictment’s legal sufficiency.” United States v . Todd, 446 F.3d
1062, 1067 (10th Cir. 2006). In ruling on a motion to dismiss
counts of an indictment, the factual allegations of those counts
are taken as true. Boyce Motor Lines, Inc. v . United States, 342
U.S. 337, 343 n.16 (1952); Bohai Trading Co., 45 F.3d at 578 n.1.
Discussion
A. “Means of Identification” in Counts I I , V I , IX, and XI
Gallant moves to dismiss Counts I I , V I , IX, and X I , on
grounds that those counts do not adequately allege the use of a
“means of identification” as defined by 18 U.S.C. § 1028(d)(7).
Specifically, Gallant argues that the indictment does not
describe the crime of aggravated identity theft, because while it
alleges that defendant used three non-unique identifiers (name,
date of birth, and place of birth) that belonged to a single real
person, it also specifically alleges that he used a unique
identifier (social security number) that did not belong to that
person, but to a completely different person. Gallant says the
information used must be viewed as a whole — and that, as pled,
the identifiers used do not, as a matter of law, identify a
4 “specific individual,” as required by § 1028(d)(7). 1 In essence,
Gallant argues that the indictment does not allege a violation of
§ 1028A because it describes the identity of a fictional
composite person’s identity, not that of a real person.
The government objects contending that the indictment
adequately charges that Gallant used Robert Mann’s full name and
date of birth (and, in Count V I , his place of birth), which is
sufficient to avoid dismissal of the aggravated identity theft
charges. The government also argues that it is for a jury to
decide whether use of the name, date, and place of birth, and a
substantially similar (and, inferentially, manipulated) social
security number, is sufficient to constitute the theft of Robert
Mann’s identity.
An indictment, or counts of an indictment, generally are not
dismissed based on insufficient evidence. See, e.g., Costello v .
United States, 350 U.S. 359, 408-09 (1956). This is so because
such action risks usurping the role of the grand jury, and would
inevitably result in delay, because a defendant “could always
insist on a kind of preliminary trial to determine the competency
1 To the extent Gallant is arguing that these identifying characteristics, considered together, actually point to two different people, that argument addresses the potential duplicity of the superseding indictment, rather than its failure to describe a criminal offense. Duplicity is addressed below.
5 and adequacy of the evidence before the grand jury.” Id.; see
also United States v . Pettengill, ___ F. Supp. 2d ___, 2010 WL
374437, at *1 (D. M e . Feb. 1 , 2010) (“A court should exercise its
authority to dismiss cautiously, since to dismiss an indictment
directly encroaches upon the fundamental role of the grand
jury.”) (quotation marks omitted).
In very limited circumstances, “a court may receive evidence
on a motion to dismiss.” United States v . Stevens, 578 F. Supp.
2d 172, 177 (D. M e . 2008) (citing United States v . Ferris, 807
F.2d 269, 271 (1st Cir. 1986). A district court may “dismiss
charges at the pretrial stage where the operative facts are
undisputed and the government fails to object to the district
court’s consideration of those undisputed facts in making the
determination regarding a submissible case.” Todd, 446 F.3d at
1068 (quotation marks omitted); see also United States v . Yakou,
428 F.3d 241, 247 (D.C. Cir. 2005) (collecting cases), Ferris,
807 F.2d at 271. In this instance, the operative facts appear
undisputed, and the government has not objected to the court’s
consideration of those facts in deciding whether to dismiss
counts of the indictment.
The crime of aggravated identity-theft is described in 18
U.S.C. § 1028A(a)(1) as follows:
6 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.
A “means of identification” is “any name or number that may be
used, alone or in conjunction with any other information, to
identify a specific individual, including any . . . name, social
security number, [or] date of birth.” 18 U.S.C. § 1028(d)(7)
(2010).
Defendant’s motion to dismiss relies heavily on a case in
which the Fourth Circuit found that the use of a counterfeit
Georgia driver’s license was insufficient to support a conviction
for aggravated identity theft under § 1028A. United States v .
Mitchell, 518 F.3d 230 (4th Cir. 2008). The license bore the
name “Marcus Jackson”; an address in East Point, Georgia; a date
of birth of October 1 9 , 1977; and a license number that did not
exist in the database of the Georgia Department of Driver
Services. Id. at 232. The government introduced evidence of two
valid Georgia driver’s licenses issued to two other people: 1 ) a
Marcus Deyone Jackson, who lived at a different address, but in
East Point, Georgia, and whose date of birth was February 1 8 ,
7 1977, and 2 ) a Marcus Jackson, who lived in Forest Park, Georgia,
and was born on February 2 4 , 1976. Id.
The Fourth Circuit emphasized the language of § 1028(d)(7),
and especially the requirement that the name or number be usable
(alone or in conjunction with any other information) to identify
a “specific individual.” Id. at 234-35. The court distinguished
between unique identifiers, like social security numbers and
fingerprints, that alone identify a specific individual, and non-
unique identifiers, like a date of birth or a name, which must be
coupled with other information in order to identify a specific
individual. Id. at 235-36. Given that the only unique
identifier on the driver’s license was a number that belonged to
no one, the court concluded that the non-unique identifiers
(name, including middle name, address, and date of birth)
amounted to a “hopeless muddle of non-matching and matching
information.” The court also noted that the non-matching
identifiers (middle name, street address, month and day of birth)
were much more specific than the matching ones (first and last
name, city, and birth year). Id. at 236.
Here, the challenged counts of the superseding indictment
allege that defendant used the victim’s correct full name,
correct birth date, correct place of birth (in Count V I ) , and a
8 social security number that, although different, was very similar
in appearance to that assigned to the victim. Numbers are
unique, of course, and a single digit can make all the difference
in many contexts. But, a single transposition of two digits in a
nine digit string could also be deemed by a jury to be either an
error in an attempt to copy the victim’s actual social security
number, or a planned transposition designed to fool a human
observer while simultaneously building in a defense to a later
criminal charge, o r , just a wild coincidence. It depends on the
evidence presented.
In Mitchell, no single identifier was completely correct:
the name lacked the correct middle name, the date of birth was
correct only as to the year, and the address was correct only as
to the city and state. The Mitchell court concluded that the
matching information was “too general to identify a specific
person in the circumstances here.” Id. at 236.
In this case, however, defendant used two (in Count V I ,
three) pieces of correct information: a correct full name, a
correct birth date, and (in Count VI) a correct birth place. A
birth date and a birth place are non-unique identifiers and a
name is generally a non-unique identifier. Those two or three
pieces of information, in conjunction, however, are likely to
9 identify a single individual, especially when they are not
juxtaposed with significant non-matching information. Here, the
correct information was combined with a social security number in
which the first five and last two digits are in the correct
sequence when compared to the victim’s, and the remaining two
digits are correct, but reversed in sequence. Pleading a
combination of correct non-unique identifiers and one unique
identifier that is similar in appearance (i.e., capable of
deceiving, and perhaps designed to deceive) to the victim’s
unique identifier, is legally sufficient to allege aggravated identity theft.2
B. “Means of Identification” in Count XI
Relying on the same legal argument, defendant contends that
Count XI should be dismissed, because it alleges that he
committed aggravated identity theft by using not only another
person’s name, date of birth, and social security number (with
two numerals reversed) but also a fraudulently obtained New
Hampshire driver’s license bearing the name and date of birth of
another person. Defendant says that, in analyzing Count X I , the
pieces of information discussed above should be viewed as a set
2 To reiterate, this determination relates solely to whether the undisputed material facts, as presented by the parties, are legally sufficient to allow the government to proceed with its case. The court does not address whether the evidence is sufficient to support a guilty verdict at trial.
10 of identifiers that also contains a unique driver’s license
number, as well as a non-unique address, neither of which belong
to the alleged victim, Robert Gordon Mann. Defendant asserts
that this set of information, as in Mitchell, is a hopeless
muddle that does not identify any specific individual. The
government again counters that the issue is one for a jury.
Unlike defendant’s first argument, this argument is not
based on undisputed evidence. The government does not discuss
the evidence it will offer to prove Count X I , and defendant’s
discussion of the evidence is little more than conjecture.
Defendant assumes, without showing, that the driver’s license
contained a number and an address that did not belong to Robert
Gordon Mann. Moreover, the government does appear to object to
the court’s considering extraneous information in determining the
issue. This is not, therefore, one of those limited
circumstances in which the court may consider matters beyond the
information pled in the superseding indictment.
Looking at the face of the superseding indictment,
defendant’s argument fails. The superseding indictment alleges
that defendant used the name, date of birth, substantially
correct social security number, and a license with the name and
date of birth of another person. The superseding indictment says
11 nothing about a contradictory address or license number, let
alone whether that address or license number belonged to the same
victim. For the reasons discussed above, Count XI is not
insufficient as a matter of law, and dismissal is not warranted.
C. Multiplicity of Counts II & XI
Defendant also argues that Count II and Count XI allege the
same conduct, in violation of the Double Jeopardy Clause of the
Fifth Amendment, because he will be subjected to punishment twice
for the same crime. He asserts that both counts allege that he
went to the Department of Motor Vehicles and used the exact same
set of identifiers belonging to another person, that i s , a name,
birth date, and social security number (with two numerals
reversed). Defendant argues that these were “the exact same
instances of conduct.”
The government demurs, pointing out that Count I I , by
reference to Count I , alleges use of that information at the
Department of Motor Vehicles, while Count X I , by reference to
Count X , alleges a separate additional use of that information at
TD Bank.
“‘An indictment is multiplicitous and in violation of the
Fifth Amendment’s Double Jeopardy Clause if it charges a single
12 offense in more than one count.’” United States v . Cameron, 662
F. Supp. 2d 177, 181 (D. M e . 2009) (quoting United States v .
Brandon, 17 F.3d 409, 422 (1st Cir. 1994)). But, “a defendant
may be charged and prosecuted for the same statutory offense
multiple times when each prosecution is based on discre[te] acts
that each constitute a crime.”3 United States v . Goodine, 400
F.3d 202, 208 (4th Cir. 2005) (citing Ashe v . Swenson, 397 U.S.
436 (1970). Where “[e]lements and facts of each substantive
count are different from those in all other counts charged under
the same statute, and each count recites a separate and distinct
prohibited act,” the counts are not multiplicitous. United
States v . Swain, 757 F.2d 1530, 1536 (5th Cir. 1985). “When the
same statutory violation is charged twice, the question is
whether Congress intended the facts underlying each count to make
up a separate unit of prosecution.” United States v . Chipps, 410
F.3d 438, 447 (8th Cir. 2005) (citing Bell v . United States, 349
U.S. 8 1 , 8 1 , 83-84 (1955)). Cf. United States v . Montilla
Ambrosiani, 610 F.2d 6 5 , 69 (1st Cir. 1979).
3 Defendant suggests that the Blockburger test applies. Blockburger v . United States, 284 U.S. 299, 304 (1932). He is incorrect. “That test applies to determinations of whether Congress intended the same conduct to be punishable under two criminal provisions.” United States v . Kimbrough, 69 F.3d 723, 729 n.5 (5th Cir. 1995) (citing Sanabria v . United States, 437 U.S. 5 4 , 70 n.24 (1978)). Here, Counts II and XI charge violations of the same criminal provision, at different times and in different places.
13 Count II alleges that, in the period from April 5 , 2001, to
February 2 6 , 2006, defendant used another person’s name, date of
birth, and social security number (with two numerals inverted) in
relation to the acts alleged in Count I . Count I alleges that
defendant falsely represented his social security number to the
New Hampshire Department of Motor Vehicles in order to obtain
four duplicate, one replacement, and one renewed, driver’s
licenses. Count XI alleges that, in the period from July, 2005,
to October, 2006, defendant used another person’s name, date of
birth, and social security number (with two numerals inverted) in
relation to the acts alleged in Count X . Count X alleges that
defendant defrauded TD Bank. While the alleged “means of
identification” appear to be identical in Count II and Count X I ,
the dates, the victims, the goals of the offenses, and the
predicate crimes differ.
One of the elements of aggravated identity theft is that it
must be committed “during and in relation to any felony
violation” specified in the statute. 18 U.S.C. § 1028A(a)(1);
see also United States v . Bonilla, 579 F.3d 1233, 1242 (11th Cir.
2009) (listing elements of aggravated identity theft), United
States v . Reed, N o . 08-3610, 2009 WL 3471073, at *2 (3d Cir. Oct.
2 9 , 2009) (listing elements of aiding and abetting aggravated
identity theft). In order to prove its case on Count I I , the
14 government will have to show that defendant falsely represented
his social security number, but to prove Count X I , the government
will have to show that defendant defrauded a bank. The alleged
acts in Counts II and XI are different, and they require proof of
different factual predicates. They are not multiplicitous. Cf.
Bonilla, 579 F.3d at 1242-43 (holding that identity theft and
aggravated identity theft charges were multiplicitous where the
predicate criminal offense was a single criminal a c t ) .
D. Intent to Defraud in Counts X & XI
Defendant also challenges the sufficiency of the allegations
in Count X , the bank fraud charge. Defendant asserts that,
although he allegedly opened an account in the name of Robert
Mann, he used it thereafter in a legitimate manner. He contends
that he made deposits and withdrawals in an “essentially legal”
manner for several months and then overdrew his account by a
small amount, resulting in a negative balance of $656.13, more
than half of which represented bank handling and overdraft fees.
Relying on United States v . Orr, 932 F.2d 330 (4th Cir. 1991),
defendant contends that the mere giving of a false name to a bank
cannot sustain a charge under 18 U.S.C. § 1344. Accordingly,
defendant seeks dismissal of Count X , the bank fraud charge, as
well as Count X I , the related aggravated identity theft charge.
15 The government understands Orr as standing only for the
proposition that a § 1344 charge fails where there is no evidence
of loss to the bank. Since TD Bank allegedly suffered a loss,
the government argues, Counts X and XI should not be dismissed.
As with defendant’s first argument, it is unclear whether
this is a circumstance in which the court may examine undisputed
operative facts outside the superseding indictment. But the
parties appear to agree that TD Bank suffered some loss more than
a year after defendant allegedly used fraudulent information to
open the account. The government states that there is sufficient
evidence to support a guilty verdict, but it does not state, as
it did with regard to defendant’s first argument, that this is a
case that a jury must decide. S o , this appears to be a situation
in which the court may consider the undisputed operative facts.
Defendant is correct that Orr required some nexus between
the use of a false identification to open a bank account and the
defendant’s later writing bad checks. 932 F.2d at 332. Orr,
however, was a case reviewed on appeal, after a jury trial. In
holding as it did, the Fourth Circuit relied upon the fact that
“[n]o evidence [was] produced to show that the use of the name
‘Rogers’ as opposed to ‘Elkins’ was done with intent to defraud
the bank.” Id. Here, neither defendant nor the government has
16 described any evidence regarding intent or lack of intent. There
is no undisputed operative fact upon which the court can
determine that Count X is legally insufficient.
In United States v . Antonelli, N o . 97 CR 194, 1997 WL
672245, at *1 (N.D. Ill. Oct. 2 7 , 1997), defendants charged with
bank fraud moved to dismiss the indictment, relying in part on
Orr. In denying the motion, the district judge recognized that
the false information that the defendants provided to the banks
“induced the banks to deal with the defendants.” Id. Moreover,
the court pointed out, the false information “could have
prevented the banks from discovering the alleged scheme, and from
locating the defendants if the scheme was discovered.” The court
also noted the difference in the procedural posture of Orr:
“While the government in Orr failed to produce any evidence to
show that those defendants intended to defraud the bank, it is
entirely possible that the government may be able to prove the
requisite intent in the instant case.” Id. at * 2 . The act of
presenting false information to the banks was “sufficient to
allege that the defendant intended to cause a loss to the bank
. . . [and] [w]hether the defendants actually held this intent is
a question for the jury.” Id. at * 1 .
17 Antonelli is directly on point. This is a motion to dismiss
counts of the superseding indictment, not a motion for judgment
of acquittal. There is no undisputed proof of intent from which
the court can determine that Counts X and XI are insufficient as
a matter of law. As in Antonelli, the allegations in the
superseding indictment are sufficient to withstand a motion to
dismiss.
E. Duplicity of Counts I I , V I , IX, and XI
Defendant argues that Counts I I , V I , IX, and XI must be
dismissed because they are duplicitous. Since those counts
involve the alleged use of Robert Gordon Mann’s correct name,
date of birth, and place of birth (in Count V I ) , but a social
security number assigned to one Mabel Parker, defendant says, the
jury may find him guilty without reaching a unanimous verdict.
That i s , some members of the jury may find that he committed
aggravated theft of Robert Mann’s identity, while others may find
that he committed aggravated theft of Mabel Parker’s identity.
Since these are two different offenses, defendant contends,
joining them in a single count renders that count duplicitous.
It appears that the government objects to this argument,
because it asks that the court deny defendant’s motion to
dismiss. The government does not, however, address defendant’s
duplicity argument.
18 A charge is duplicitous if it joins “two or more distinct
offenses in a single count of an indictment.” United States v .
Trainor, 477 F.3d 2 4 , 31 (1st Cir. 2007). “The primary vice of
duplicity is that a jury may find a defendant guilty on the count
without having reached a unanimous verdict on the commission of
any particular offense.” Id. at 3 2 , n.16 (quotation marks
omitted).
Unlike in the cases defendant relies upon, the challenged
counts here are not duplicitous. They do not allege two distinct
criminal offenses. The superseding indictment says nothing about
Mabel Parker, or her actual social security number. Rather, it
is alleged that Gallant used “the name, date of birth and social
security number, with two of the individual numerals in the
number reversed, of another person.”4 “A count is duplicitous
when it charges more than one offense in a single count.” United
States v . Valerio, 48 F.3d 5 8 , 63 (1st Cir. 1995) (emphasis in
original). Where “the evidence underlying the count allegedly
could . . . give[] rise to [two] separate counts,” there is no
duplicity. The concern that a jury may find a defendant guilty
without reaching a unanimous verdict “[o]bviously . . . only
becomes a problem when the indictment actually charges two or
4 Count VI also alleges the use of the place of birth of the same person.
19 more offenses in a single count.” Id. (emphasis added). Counts
I I , V I , IX, and XI each allege only one offense: the theft of an
identity belonging to a single individual. The counts are not
duplicitous.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss
(document n o . 22) is denied.
SO ORDERED.
April 1 6 , 2010
cc: Alfred J. T . Rubega, Esq. Jonathan R. Saxe, Esq.