United States Court of Appeals
For the First Circuit
No. 09-1877
UNITED STATES OF AMERICA,
Appellee,
v.
MARY L. LANDRY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Ripple,* and Lipez, Circuit Judges.
Tina Schneider for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula
D. Silsby, United States Attorney, was on brief, for appellee.
January 28, 2011
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Mary L. Landry was indicted in
the United States District Court for the District of Maine on nine
counts involving wire fraud, aggravated identity theft and social
security fraud.1 The district court held a two-day trial, and the
jury returned a guilty verdict on all nine counts. After
sentencing, Ms. Landry filed a timely notice of appeal.2 In her
appeal, she claims that the district court committed reversible
error when it admitted two pieces of evidence, that the prosecutor
engaged in improper argument during closing arguments and that the
district court improperly considered the general increase in
identity theft crimes in determining the appropriate sentence. For
the reasons set forth in this opinion, we affirm the judgment of
the district court.
I
BACKGROUND
From 2001 to 2003, Ms. Landry was employed as a customer
account manager by MBNA, a credit card company. At MBNA, Ms.
Landry’s job involved the collection of past due credit card
accounts. She was granted a security clearance, which gave her
access to customers’ social security numbers and dates of birth.
1
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231.
2
This court has jurisdiction over the final decision of the
district court pursuant to 28 U.S.C. § 1291.
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In 2003, MBNA, following its established policy, terminated Ms.
Landry’s employment for a drunk-driving conviction. Beginning in
November 2005, Ms. Landry was employed by Verizon. At Verizon, Ms.
Landry could access customer accounts, including social security
numbers and dates of birth.
Admiral Mary E. Landry (“Admiral Landry”), not the
defendant, was notified in 2007 by Discover that someone was using
her date of birth and social security number to open a credit card
account. Admiral Landry immediately placed fraud alerts on her
credit cards and enrolled in a fraud monitoring system. While Ms.
Landry was employed at MBNA, Admiral Landry had a MBNA-issued
credit card, but was never late in any of her payments. In 2000,
Admiral Landry had opened an account with Verizon for cable, phone
and DSL in her home.
In April 2007, the defendant, Ms. Landry, received pre-
approved offers in the mail for two credit cards, one from Chase
Bank and another from Discover Bank. Ms. Landry applied online for
both cards, providing her own name. According to Ms. Landry, she
entered her own birth date, but, because of her apprehension about
internet security, she entered all 9s as her social security
number. Chase approved Ms. Landry’s credit card application, but
Discover required further review. Ms. Landry ultimately decided
not to open a card with Discover.
In May 2007, after making a purchase at Fashion Bug, Ms.
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Landry applied for a store credit card upon the encouragement of
the sales clerk. Fashion Bug’s procedure required the sales clerk
to input the customer’s name, address and date of birth from a
driver’s license. The customer would then input her social
security number on a number pad. Ms. Landry maintains that she
again entered all 9s as her social security number. Ms. Landry’s
application was not approved.
Around June 2007, Ms. Landry was unable to access her
Chase credit card account online. When Ms. Landry called Chase, it
asked her to verify the last four digits of her social security
number. Ms. Landry provided the last four digits of her social
security number, which did not match the credit card account. Ms.
Landry also tried providing all 9s, which also did not match.
Chase closed the account.
Ms. Landry was indicted on nine counts: three counts of
wire fraud, three counts of aggravated identity theft, two counts
of social security fraud and one count of fraud in connection with
an access device or credit card. The charges were based on Ms.
Landry’s allegedly knowing and unauthorized use of another
individual’s identity to apply for three credit cards, to obtain a
credit card and to use that credit card.
The Government maintains that Ms. Landry had access to
Admiral Landry’s identification information through her employment,
and having defaulted on student loans, Ms. Landry’s poor credit
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provided her with a financial motive. Her alleged plan was to
deceive credit card companies by using the social security number
and date of birth of an individual who shared her same first and
last name. The Government maintains that Ms. Landry used Admiral
Landry’s social security number and date of birth on the Chase and
Discover applications. For the Fashion Bug credit card, however,
the Government submits that Ms. Landry used only Admiral Landry’s
social security number because, under that store’s procedure, the
store clerk enters the customer’s date of birth based on the
customer’s provided identification.
A two-day trial took place in 2009. To support its
claim, the Government provided the testimony of MBNA and Verizon
representatives. Both employers stated that Ms. Landry had the
security clearance to have accessed Admiral Landry’s social
security number and date of birth through their systems. The
Government also presented evidence that Ms. Landry was in debt, had
defaulted on her student loans of over $60,000 and was subject to
a wage garnishment order. Employees from different credit card
companies testified that an applicant must supply her own social
security number and that the computer system would not input a
social security number on its own.
We shall present additional, relevant factual background
in the course of our consideration of each of Ms. Landry’s specific
contentions.
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II
DISCUSSION
Ms. Landry submits that her conviction should be reversed
because: (1) the district court admitted evidence of a 2008
traffic stop at which she supplied false identifying information;
(2) the district court admitted evidence of the drunk-driving
conviction; (3) the Government referenced in its closing arguments
the cost and expense of bringing expert witnesses; and (4) the
district court considered the growth of identity fraud crimes
during sentencing. We consider each issue in turn.
A.
Ms. Landry first contends that the district court erred
in admitting, under Federal Rule of Evidence 404(b), evidence about
a traffic stop at which she supplied false identification
information. We review a district court’s ruling on the
admissibility of evidence under Rule 404(b) for an abuse of
discretion. United States v. Hicks, 575 F.3d 130, 141 (1st Cir.
2009), cert. denied, 130 S. Ct. 647 (2009). We conclude that the
traffic stop is admissible under Rule 404(b).
In June 2008, after Ms. Landry had filled out the credit
card applications, but prior to her indictment in this case,
Officer Steven Jordan stopped Ms. Landry for a traffic infraction.
When asked for her name, social security number and date of birth,
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Ms. Landry provided Officer Jordan with her sister’s name, a made-
up social security number and a made-up date of birth. Officer
Jordan ascertained Ms. Landry’s actual identity by checking vehicle
registration, booking photographs and verifying physical traits,
and discovered that Ms. Landry had a suspended license.
Before trial, the district court initially directed the
Government not to mention evidence of the 2008 traffic stop, but
warned Ms. Landry that the evidence would be admissible if she
opened the door to it. After Ms. Landry’s opening statement
indicated a defense of good faith and computer error, the district
court ruled that the evidence of the traffic stop would be
admissible. The court explained that the evidence “goes directly
to the specific issues that are isolated in the rule.” Trial Tr.
vol. I, 81. The court pointed out that Ms. Landry was claiming “a
computer system error and a good-faith defense” and that the jury
therefore was entitled to consider evidence that she had used, in
another instance, “another name, including a social security number
that was not hers.” Id. That evidence could be used, the court
explained, “to conclude opportunity, intent, preparation, plan,
knowledge, and absence of mistake or accident.” Id. at 82.
Federal Rule of Evidence 404(b) prohibits the admission
of prior bad acts to establish an individual’s character or
propensity to commit a crime. Rule 404(b) does permit, however,
the admission of prior bad acts “for other purposes, such as proof
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of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). Bad acts committed subsequent to the charged behavior are
admissible under Rule 404(b) as long as they meet the criteria set
forth in the Rule. See United States v. Tse, 375 F.3d 148, 155
(1st Cir. 2004).
Consonant with the established case law of our circuit,
a district court employs a two-part test to determine admissibility
of evidence under Rule 404(b). Udemba v. Nicoli, 237 F.3d 8, 15
(1st Cir. 2001). First, it must determine whether the evidence has
“special” relevance other than establishing propensity; with
respect to this inquiry, Rule 404(b)’s list of purposes is not
exhaustive. Id. In Udemba, we concluded that the evidence was
admissible under Rule 404(b) in part because it “was specially
relevant to a contested issue in the case, namely, the extent of
damages attributable to emotional distress.” Id. In so
concluding, we “reject[ed] the [] concept that Rule 404(b) contains
a comprehensive list of all the ways in which evidence of other bad
acts may be specially relevant.” Id. To determine whether
proffered evidence has special relevance, the court considers the
temporal relationship of the other act and the degree of similarity
to the charged crime. United States v. Varoudakis, 233 F.3d 113,
119 (1st Cir. 2000). Second, the court must consider whether Rule
403 requires exclusion of the evidence because the danger of unfair
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prejudice substantially outweighs the probative value. Id. at 121.
1. Specially Relevant
In admitting evidence of the traffic stop, the district
court said that it showed “opportunity, intent, preparation, plan,
knowledge, and absence of mistake or accident.” Trial Tr. vol. I,
81. We believe, more precisely, that the 2008 traffic stop is
relevant to show intent or knowledge because the evidence rebuts an
innocent involvement defense.
Bad acts, other than the behavior charged, can be the
basis for “inferr[ing] . . . that, after being involved in a number
of similar incidents, the defendant must have had a mental state
that is inconsistent with innocence.” 2 Jack Weinstein & Margaret
Berger, Weinstein’s Federal Evidence § 404.22[1][a] (2d ed. 2010).
This circuit, and others, have admitted evidence under Rule 404(b)
to rebut a defense of innocent involvement. The cases do not
always specify under which of the enumerated categories of Rule
404(b) the evidence is admitted, recognizing the overlapping and
non-exhaustive nature of that listing. In United States v.
Rodriguez, 215 F.3d 110, 114 (1st Cir. 2000), the defendant was
charged with conspiracy and attempt to import, with an individual
named Vega, illegal drugs at a pier. He submitted as his defense
that he was at the sea with Vega for an innocent reason. He
claimed that, as a fisherman, he occasionally would fish in those
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waters. Id. at 116. The Government introduced evidence of another
drug importation, at the same location, that involved the defendant
and Vega. Id. at 115. We determined that the district court had
not abused its discretion in admitting the evidence because the
Government had a right to counter the idea that the defendant was
just “innocently caught up” in the events. Id. at 119. Similarly,
in United States v. Wyatt, 561 F.3d 49, 53 (1st Cir. 2009), cert.
denied, 129 S. Ct. 2818 (2009), there was a suggestion that the
defendant was tricked into participating in fraudulent transactions
by others. We concluded that evidence of the prior fraudulent
transactions in which the defendant had participated “would assist
the jury in determining whether [the defendant] was ‘duped’ . . .
or whether [the defendant] fully understood the fraudulent nature
of the charged transactions.” Id. Also, in United States v. Lugo
Guerrero, 524 F.3d 5, 14 (1st Cir. 2008), we held that the district
court had not abused its discretion in admitting prior evidence of
robberies to counter the defendant’s theory that he was present
innocently in the getaway car with two bank robbers. We commented
that evidence of the prior bank robberies “makes it unlikely that
[the defendant’s] presence in the vehicle was a mere coincidence.”
Id.
Other circuits also have allowed Rule 404(b) evidence,
not always under any specific category, to counter an innocent
involvement defense. See, e.g., United States v. Howell, 231 F.3d
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615, 628 (9th Cir. 2000) (holding Rule 404(b) evidence of previous
drug convictions relevant to rebut defense that the defendant was
“merely present” (quotation marks omitted)); United States v.
Huels, 31 F.3d 476, 479 (7th Cir. 1994) (allowing, on plain error
review, Rule 404(b) evidence to show absence of mistake because the
defendant had maintained that “he wandered into the marijuana
garden by chance while hunting for deer” and had never been on that
plot of land previously); United States v. Zackson, 12 F.3d 1178,
1182-83 (2d Cir. 1993) (admitting Rule 404(b) evidence of prior
drug trafficking with co-defendant to show intent because defendant
denied any participation and claimed innocent association).
Ms. Landry’s defense is one of innocent involvement. She
does not contend that she made a mistake. Rather, she claims that
she acted innocently, providing her own date of birth and a social
security number of all 9s. The culprit, according to Ms. Landry,
is the computer system, which mixed up her identity with that of
Admiral Landry. The line of cases admitting Rule 404(b) evidence
to counter a defense of innocent involvement supports the district
court’s determination that the circumstances of her encounter with
Officer Jordan at the traffic stop are relevant to show intent or
knowledge.3
3
Even though Ms. Landry does not assert a defense of
mistake, her claim of innocent involvement is an adequate basis for
admitting evidence to rebut that claim. Notably, Rule 404(b)
evidence is admissible to show intent even when such evidence is
not admissible to illustrate absence of mistake on the part of the
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We also believe that the traffic stop is sufficiently
similar to be relevant. “The other bad act need not be identical
to the crime charged so long as it is sufficiently similar to allow
a juror to draw a reasonable inference probative of knowledge or
intent.” United States v. Landrau-Lopez, 444 F.3d 19, 24 (1st Cir.
2006). We have considered Ms. Landry’s contention that the traffic
stop is not sufficiently similar because she provided the officer
with a made-up social security number, not an actual one as alleged
in the charged crime. We find probative, however, her willingness
in both situations to lie when asked for personal identification
information. Because Ms. Landry’s defense was good faith and
computer error, Ms. Landry’s willingness to give a false, even if
made-up, social security number is suggestive of her intent to
provide another’s identity as her own.
The bad act also was not so distant in time from the
charged event as to be irrelevant. The submission of the credit
card applications and use of the Chase card occurred from April to
June 4, 2007; the traffic stop occurred on June 18, 2008. The
traffic stop, then, occurred a little over a year after the charged
crimes. See Lugo Guerrero, 524 F.3d at 14 (concluding that the
prior bank robberies were not too remote because they occurred
defendant. See United States v. Ward, 190 F.3d 483, 489 (6th Cir.
1999) (determining evidence of prior drug conviction was not valid
to show absence of mistake because mistake was not at issue, but
evidence was valid to show the defendant had intent to distribute
cocaine).
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within fifteen months of the charged robbery).
The district court therefore did not abuse its discretion
in concluding that the 2008 traffic stop was specially relevant
under Rule 404(b) to show Ms. Landry’s intent.
2. Rule 403
We now turn to the second part of the test, namely
whether the evidence meets the standard of Rule 403. Rule 403
provides that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. Danger of unfair prejudice occurs
if the evidence “invites the jury to render a verdict on an
improper emotional basis.” Varoudakis, 233 F.3d at 122. Moreover,
“Rule 403 judgments are typically battlefield determinations, and
great deference is owed to the trial court’s superior coign of
vantage.” United States v. Shinderman, 515 F.3d 5, 17 (1st Cir.
2008).
The district court was entitled to conclude that it was
unlikely that the jury would be influenced emotionally by evidence
of the traffic stop. The traffic stop involved no graphic or
shocking events that might play upon a jury’s passions. The
district court was also careful in handling the traffic stop
evidence. It provided a specific limiting instruction cautioning
the jury not to consider the traffic stop as evidence of
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propensity. In addition, the district court allowed the evidence
only after verifying that Ms. Landry would be raising a defense of
good faith and computer error. Given the limiting instruction and
nature of the evidence, the danger of unfair prejudice from the
traffic stop was low. Accordingly, the district court did not
abuse its discretion in admitting evidence of the 2008 traffic stop
under Rule 404(b).
B.
Ms. Landry also seeks review of the district court’s
decision to admit evidence of her drunk-driving conviction for
which MBNA terminated her employment. We review the district
court’s admission of this evidence for abuse of discretion. Hicks,
575 F.3d at 141. The district court determined that all of Ms.
Landry’s prior convictions on her driving record were inadmissible
under Rule 609(a)(2). Specifically, the district court found that
the driving record convictions were not germane to Ms. Landry’s
credibility. Some convictions were very remote, with one at least
eight years old, and no similarity existed between the convictions
and the alleged crime. The district court also determined that,
under Rule 609(a)(1), the prejudicial effect of the driving record
convictions outweighed any probative value. In particular, the
district court observed that “[t]he plain fact of the matter is
jurors don’t tend to like people who drive drunk, and their view of
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the defendant’s two [drunk-driving] convictions might affect their
ability to view fairly the evidence in this case.” Trial Tr. vol.
II, 294.
During Ms. Landry’s testimony, however, the district
court ruled in a sidebar that it would allow evidence of the drunk-
driving charge that had lead to Ms. Landry’s termination from MBNA.
Ms. Landry testified on direct examination that she had worked for
MBNA, that she had received a security clearance and that she had
left in 2003. The district court found that, without evidence of
the termination, “she’s leaving the impression with the jury . . .
that her record at MBNA is effectively unimpeachable.” Id. at 348.
Ms. Landry’s counsel countered that the Government could elicit
testimony about the termination without mentioning the specific
drunk-driving charge. The court responded that “she’s going to be
in a better position . . . to have the reason be [drunk-driving]
than have the jury speculate that the reason might be something
related to dishonesty.” Id. at 349. The district court therefore
allowed testimony about the drunk-driving charge that resulted in
Ms. Landry’s termination.
The basis of Ms. Landry’s termination could have been
handled by stipulation. The stipulation could have been crafted so
as to make it clear that her arrest had precipitated her
termination without specifically informing the jury that she had
been accused of drunk driving. Nonetheless, we conclude that the
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district court did not abuse its discretion in permitting the
evidence.4
Ms. Landry is correct that, given the court’s earlier
ruling on the prejudicial nature of evidence of a drunk-driving
conviction, Rule 609 cannot serve as an independent predicate for
the admission of the conviction. The parties agree that the drunk-
driving conviction is not a specific instance of dishonesty, and
therefore Rule 608 cannot serve as the basis for admission.
Our inquiry must focus, therefore, on whether Ms. Landry
opened the door to her drunk-driving conviction. Even when, prior
to trial, a court has ruled evidence of prior convictions
inadmissible, a defendant can, in the course of her testimony, open
the door to evidence about prior convictions. Rules 402 and 403
govern in these situations. Specifically, “[p]rior convictions are
admissible under Rules 402 and 403 to contradict specific
testimony, as long as the evidence is relevant and its probative
4
Relying on United States v. Hansen, 434 F.3d 92 (1st Cir.
2006), the Government maintains that Ms. Landry failed to preserve
this issue for appeal because she conceded in the sidebar that the
Government could ask questions about the termination. In Hansen,
the court found that the defendant had waived his right to object
to jury instructions when, after the instructions were given, the
defendant stated, “I am content.” Id. at 101. In this case, Ms.
Landry clearly objected to questioning about the drunk-driving
conviction. Ms. Landry conceded that the Government could ask
about the termination, but, unlike the defendant in Hansen, Ms.
Landry protested to questioning about the underlying drunk-driving
conviction. The existence of a termination and the underlying
drunk-driving conviction are distinct facts. We conclude that Ms.
Landry did not consent to questioning about the drunk-driving
conviction and therefore did not waive the issue.
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value is not substantially outweighed by the danger of unfair
prejudice.” United States v. Norton, 26 F.3d 240, 244 (1st Cir.
1994).
We conclude that the district court did not abuse its
discretion in concluding that Ms. Landry’s testimony did open the
door. As Ms. Landry conceded, her testimony on direct examination
created a false impression that made the circumstances of her
termination relevant for questioning. Furthermore, although the
prejudicial effect of a drunk-driving conviction is significant,
the district court reasonably concluded that the alternative--jury
speculation--was worse. The district court acted within its
discretion in admitting evidence of the drunk-driving charge.
C.
Ms. Landry also maintains that the Government engaged in
improper argument during its closing arguments by emphasizing the
cost and expense of providing its expert witnesses for this trial.
During its initial closing argument, the Government told the jury
that, “[a]t considerable expense, the government provided testimony
from witnesses” who understood how the credit card companies’
computer systems worked. Trial Tr. vol. II, 428. The Government
also stated that it “went at great length here not just to bring a
regional investigator, not to bring someone local, but to make sure
we got the right person.” Id. at 440. The Government noted again
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that “the government, again, went to length to provide three
witnesses with specialized knowledge.” Id. at 442.
Because Ms. Landry made no objection to the prosecutor’s
statements at trial, we review for plain error whether the
Government engaged in improper argument. Plain error requires a
showing “(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant’s substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). This type of error “will not be
recognized unless it caused a miscarriage of justice or seriously
undermined the integrity or public reputation of judicial
proceedings.” United States v. Henderson, 320 F.3d 92, 105 (1st
Cir. 2003) (internal quotation marks and citation omitted).
Reversal is necessary only if the remarks in closing
argument have “so poisoned the well that the trial’s outcome was
likely affected.” Henderson, 320 F.3d at 107 (quotation marks and
citation omitted). Factors for consideration include: “(1) the
severity of the prosecutor’s misconduct, including whether it was
deliberate or accidental; (2) the context in which the misconduct
occurred; (3) whether the judge gave curative instructions and the
likely effect of such instructions; and (4) the strength of the
evidence against the defendants.” United States v. Nelson-
Rodriguez, 319 F.3d 12, 38 (1st Cir. 2003) (quoting United States
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v. Whibey, 75 F.3d 761, 771-72 (1st Cir. 1996)) (quotation marks
omitted).
We do not believe there was plain error. To be sure, the
Government’s statements were improper: The reference to getting
“the right person” constituted improper bolstering of the
credibility of the Government’s expert witnesses, and the
statements regarding the time and expense in procuring those expert
witnesses were plainly irrelevant. The Government’s statements
cannot, however, fairly be characterized as a grave breach.
Moreover, Ms. Landry can point to, at most, only four objectionable
statements. All of these statements are only one to two sentences
each. Whether these statements were intentional or not is unclear,
but the offensive remarks comprise at most a small part of the
closing arguments. No curative instructions were given, but this
omission was due to Ms. Landry’s failure to object. Indeed, in
another case involving allegations of improper statements made by
the Government in closing argument, we noted our “concern[] with
the fact that there was no contemporaneous objection or request for
curative instructions, thus depriving the district judge of the
opportunity to provide special or additional instructions.” United
States v. Castro-Davis, 612 F.3d 53, 68 (1st Cir. 2010). It is
also likely that the prosecutor’s remarks had no appreciable effect
on the jury. Given the high standard for plain error and the
consideration of these factors, no plain error occurred.
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D.
Ms. Landry submits that in imposing the sentence, the
district court should not have considered the fact that identity
fraud as a crime is increasing in frequency, and, therefore,
requires additional deterrence. She notes that, even though she
was subject to a mandatory consecutive sentence of twenty-four
months under the Identity Theft Penalty Enhancement Act, 18 U.S.C.
§ 1028A, the district court considered the growing crime of
identity theft in setting her sentence at the top of the guideline
range for her convictions for wire fraud, fraud in connection with
an access device and social security fraud. Notably, however, she
does not argue that the court erred in any respect in calculating
the guideline range, in considering the statutory sentencing
factors or in understanding the facts of the case.
At the sentencing hearing, the district court imposed a
sentence at the top of the guideline range. The district court,
discussing its consideration of all the factors in 18 U.S.C. §
3553(a), stated:
Turning to deterrence, . . . identity
fraud is a growing problem in this country,
and it is as true in Maine as anywhere. Maine
has a number of businesses, like credit card
companies, where employees have access to
sensitive financial and personal information,
and the sentence should therefore take into
account the need to deter such conduct.
Sent. Tr., 31.
Both parties invite our attention to United States v.
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Politano, 522 F.3d 69 (1st Cir. 2008). The defendant in Politano
was convicted of dealing firearms without a license. Id. at 71.
At the sentencing hearing, the district court noted:
I think any reader of the daily newspapers is
aware that the illegal trafficking of firearms
at the street level is a significant
contributing factor in what, without
exaggeration I think, can be called an
epidemic of handgun violence in communities
within this district. . . . And so I think
[this offense] has to be punished by a
sentence which reflects the seriousness,
promotes respect for it in compliance with the
law, and has an effect both specifically but
also a general deterrence effect as advice to
others who might commit it.
Id. at 72. The defendant in Politano challenged the district court
for relying on “generalized reports.” Id. at 73 (quotation marks
omitted). In upholding the sentence, we commented that, post-
Booker,5 “the district court has the discretion to take into
account . . . the particular community in which the offense arose.”
Id. at 74. Additionally, “[g]eneral deterrence is about preventing
criminal behavior by the population at large and, therefore,
incorporates some consideration of persons beyond the defendant.”
Id.
The district court did not err in considering identity
fraud as a growing crime in Maine and in the Nation. At the
sentencing hearing, the district court explained extensively its
decision and consideration of the factors for sentencing. Sent.
5
United States v. Booker, 543 U.S. 220 (2005).
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Tr., 28-34. The district court discussed identity fraud in the
context of deterrence, a factor specifically identified as relevant
by the governing statute. See 18 U.S.C. § 3553(a)(2)(B). The
district court explicitly stated that this was “a growing problem
in this country, and it is as true in Maine as anywhere.” Sent.
Tr., 31 (emphasis added). Similar to the sentencing court in
Politano, the district court considered the crime of identity theft
regionally; it then noted that the situation in Maine was part of
a growing national problem. In doing so, the court was following
Congress’s explicit mandate that it consider deterrence in
adjudicating a sentence.
Nor do we believe that the court erred in considering the
widespread growth of identity theft even though Ms. Landry already
was subject to a mandatory, consecutive, two-year sentence under
the Identity Theft and Penalty Enhancement Act, 18 U.S.C. § 1028A.
Congress, in imposing the mandatory sentence, separated the
sentence for predicate offenses--that is, the crimes related to the
aggravated theft--from the mandatory two-year sentence. See 18
U.S.C. § 1028A(b)(3) (“[I]n determining any term of imprisonment to
be imposed for the felony during which the means of identification
was transferred, possessed, or used, a court shall not in any way
reduce the term to be imposed for such crime so as to compensate
for, or otherwise take into account, any separate term of
imprisonment imposed . . . for a violation of this section[.]”).
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In this case, Ms. Landry was convicted of the predicate
offenses of wire fraud, fraud in connection with an access device
and social security fraud. These predicate offenses were in part
due to her use of false identifying information, and so,
independent of the charge for aggravated identity theft, the
district court could consider the need to deter identity theft in
determining the sentence for these predicate crimes.6 Accordingly,
the district court did not err when it considered, motivated by a
concern for general deterrence, the growth of identity fraud in
Maine and beyond.
Conclusion
The district court did not abuse its discretion in
admitting evidence of the traffic stop and of Ms. Landry’s drunk-
driving conviction. We also conclude that no plain error occurred
in the Government’s closing arguments and that the district court’s
consideration of identity theft as a growing crime was not
improper. For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
6
We also note that the court made clear that it imposed the
maximum sentence in large part because it viewed Ms. Landry as
unrepentant.
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