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 .

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

(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

(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,

5 , 79 (1962); United States v . Bohai

Trading Co., Inc..

, 578 n.1 (1st Cir. 1995); United

States v . Thompson,

(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,

7 ,

117 (1974); United States v . Ditomasso,

(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,

(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,

, 343 n.16 (1952); Bohai Trading Co.,

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

(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,

(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 ___,

(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,

(D. M e . 2008) (citing United States v . Ferris,

(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,

(quotation marks omitted); see also United States v . Yakou,

(D.C. Cir. 2005) (collecting cases), Ferris,

. 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.”

(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,

(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.

. 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.

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,

(D. M e . 2009) (quoting United States v .

Brandon,

(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,

(4th Cir. 2005) (citing Ashe v . Swenson,

(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,

(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,

(8th Cir. 2005) (citing Bell v . United States,

1 , 8 1 , 83-84 (1955)). Cf. United States v . Montilla

Ambrosiani,

5 , 69 (1st Cir. 1979).

3 Defendant suggests that the Blockburger test applies. Blockburger v . United States,

(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,

, 729 n.5 (5th Cir. 1995) (citing Sanabria v . United States,

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,

(11th Cir.

2009) (listing elements of aggravated identity theft), United

States v . Reed, N o . 08-3610,

, 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,

(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,

(4th Cir. 1991),

defendant contends that the mere giving of a false name to a bank

cannot sustain a charge under

. 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.

. 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.”

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,

, 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.”

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.”

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.”

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,

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.”

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,

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.”

(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.

20