FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50441
Plaintiff - Appellant, D.C. No. 2:08-cr-00380-R-1
v.
MEMORANDUM *
RONALD GAITHER,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted March 10, 2011 **
Pasadena, California
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
The government appeals the district court’s dismissal of its charge of
aggravated identity theft under 18 U.S.C. § 1028A(a)(1) against defendant Ronald
Gaither (“Gaither”). The district court dismissed this count of the indictment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
because (1) the predicate offenses were not related to terrorism; and (2) the stolen
identity belonged to a deceased victim. We have jurisdiction under 28 U.S.C. §
1291, and we reverse and remand.
First, the predicate charges brought against Gaither, bank fraud and theft of
government funds, are expressly listed among those that serve as a basis for an
identity theft charge under § 1028A(a)(1). 18 U.S.C. §§ 1028A(c)(1), (5). The
district court’s belief that the statute applies only to terrorism-related offenses,
rather than “straight bank fraud,” is plainly incorrect.
Second, Gaither’s argument that § 1028A(a)(1) does not criminalize the theft
of identity documents belonging to a deceased person is foreclosed by United
States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010), which held that the term
“person” as used in § 1028A(a)(1) includes both living and deceased persons.
After the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886,
1888–94 (2009) interpreted § 1028A(a)(1) so that the term “knowingly” modified
all subsequently listed elements of the crime, including “of another person,” we
were charged in Maciel-Alcala with further interpreting the term “person” to make
clear what exactly the defendant had to know. Contrary to Gaither’s argument,
therefore, Maciel-Alcala’s holding that “person” in § 1028A(a)(1) includes both
living and deceased persons is not merely dicta, but was the precise question under
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review. Although this case presents a different set of facts because the person
whose identity Gaither stole was in fact dead at the time of the unlawful use,
Maciel-Alcala’s holding as to how § 1028A(a)(1) should be construed as a matter
of law controls.
Because the district court’s reasoning is contrary to the plain text of the
statute and our holding in United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir.
2010), its dismissal of the charge under § 1028A(a)(1) is REVERSED and the
case is REMANDED for further proceedings not inconsistent with this disposition.
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