11-5057-cr
United States v. Wilson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: February 11, 2013 Decided: February 22, 2013)
Docket No. 11-5057-cr
UNITED STATES OF AMERICA,
Appellee,
— v. —
ISABEL WILSON,
Defendant - Appellant.
B e f o r e:
HALL, LYNCH, and CARNEY, Circuit Judges.
__________________
Defendant-Appellant Isabel Wilson was convicted by a jury on charges stemming
from an identity theft scheme. In a separate summary order filed along with this opinion,
we address and reject several of Wilson’s attacks on her conviction. This opinion
addresses Wilson’s conviction under 42 U.S.C. § 408(a)(7)(A), which criminalizes the
use of social security numbers that were assigned on the basis of false information.
1
Because the government failed to prove that Wilson’s social security number was so
assigned, we reverse her conviction for violating that statute and remand to the district
court for resentencing.
AFFIRMED in part, REVERSED in part, VACATED and REMANDED.
THEODORE S. GREEN, Green & Willstatter, White Plains, New York, for
Defendant-Appellant Isabel Wilson.
DOUGLAS B. BLOOM, Assistant United States Attorney (Jennifer G. Rodgers,
Assistant United States Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District of New York, New
York, New York.
PER CURIAM:
Defendant-Appellant Isabel Wilson was convicted by a jury in the United States
District Court for the Southern District of New York (Vincent L. Briccetti, Judge) on
charges stemming from an identity theft scheme. On appeal, Wilson raises a number of
arguments, most of which we reject in a separate summary order filed along with this
opinion. This opinion deals with Wilson’s conviction under 42 U.S.C. § 408(a)(7)(A),
which criminalizes the use of social security numbers assigned on the basis of false
information. We find that the government failed to prove an element of the offense,
namely, that the social security number was assigned on the basis of false information.
We therefore AFFIRM Wilson’s conviction on all charges except Count Five, REVERSE
her conviction on that count, VACATE the judgment of the district court and REMAND
the case for resentencing.
2
BACKGROUND
Because Wilson appeals from a judgment of conviction entered after a jury trial,
the following facts are drawn from the trial evidence and described in the light most
favorable to the government. United States v. Bahel, 662 F.3d 610, 617 (2d Cir. 2011).
In 1972, Isabel Wilson, who was then known by her maiden name Isabel Beatrice
Freeman, applied for a social security number (“SSN”). The application listed her date of
birth as June 8, 1952 and her place of birth as Careysburg, Liberia. The government does
not contend that any of the information provided on that application was false. Based on
that application, the Social Security Administration (“SSA”) assigned Wilson an SSN
ending in 5541.
In 1979, Wilson asked the SSA to change its record for the number ending in 5541
to reflect her marital name, Isabel Wilson. On that occasion, Wilson stated that she was
born in Monrovia, Liberia, a city approximately 28 miles from Careysburg. The
application also identified Wilson’s mother as Nancy Wordsworth, whereas the previous
application had identified her mother as Eugenia Stevenson Wardsworth. Despite these
minor discrepancies, the government does not contend that any information on the name-
change application was false. Although the SSA’s records were changed to reflect the
information provided on that application, Wilson continued to be assigned the same SSN
ending in 5541.
In 1990, Wilson applied for a duplicate Social Security card. Although her
application still listed her date of birth as June 8, 1952, it stated that Wilson was born in
3
North Carolina, the daughter of Elizabeth Kennedy and David Freeman. Social Security
records were again updated to reflect these changes, but Wilson continued to be assigned
the same SSN ending in 5541 that she had first been assigned in 1972.
On December 7, 2009, a criminal complaint was filed in the United States District
Court for the Southern District of New York, charging Wilson with one count of access
device fraud in violation of 18 U.S.C. § 1029(a)(5), and one count of aggravated identity
theft in violation of 18 U.S.C. § 1028A. Secret Service agents arrested Wilson the next
day at her home. Following her arrest, a Deputy United States Marshal interviewed
Wilson to collect her pedigree information. When asked for her SSN, Wilson accurately
provided the marshal her assigned SSN ending in 5541.
The government eventually obtained a superseding indictment, adding seven new
counts to the two charges included in the original criminal complaint. Count Five of that
indictment charged that Wilson provided to the United States Marshal Service, “which
was collecting her pedigree information, a Social Security number that she received as a
result of an application for a Social Security number in which she had falsely stated that
she was born in the United States.” The government contends that Wilson’s conduct fell
within the ambit of 42 U.S.C. § 408(a)(7)(A). We disagree.
DISCUSSION
Section 408(a)(7)(A) makes it an offense “willfully, knowingly, and with intent to
deceive, [to] use[] a social security account number, assigned by the Commissioner of
Social Security (in the exercise of the Commissioner’s authority under section 405(c)(2)
4
of this title to establish and maintain records) on the basis of false information furnished
to the Commissioner of Social Security.”
We review de novo questions of statutory interpretation. United States v. Al
Kassar, 660 F.3d 108, 124 (2d Cir. 2011). To interpret a criminal statute, we first look to
its text, United States v. Reich, 479 F.3d 179, 187 (2d Cir. 2007), and identify the
essential elements of the offense, see, e.g., Canada v. Gonzales, 448 F.3d 560, 572-73 (2d
Cir. 2006) (identifying essential elements of various criminal offenses).
Applying these principles to section 408(a)(7)(A), we find that to sustain a
conviction under the statute, the government must prove (1) that the defendant willfully
and knowingly used a social security account number; (2) that she did so “with intent to
deceive”; (3) that the SSN was assigned on the basis of false information provided to the
Commissioner by her or by any other person; and (4) that the defendant knew that the
SSN had been assigned based on false information. 42 U.S.C. § 408(a)(7)(A).
We have some doubt whether truthfully providing one’s accurate SSN to a United
States Marshal who requested it as part of a routine pedigree interview constitutes a “use”
of the number within the meaning of the statute, let alone that Wilson could be found,
beyond a reasonable doubt, to have intended to deceive when she accurately provided the
exact information for which she was asked. We may assume without deciding, however,
that these elements of the offense were proven, because we conclude that the government
unquestionably failed to prove that the SSN was assigned to Wilson, as the statute
requires for conviction, on the basis of false information. Wilson was assigned the SSN
5
ending in 5541 in 1972, on the basis of an application no part of which the government
alleges to have been false. Although Wilson’s subsequent applications to the SSA
resulted in changes in her Social Security file and her receiving a new social security
card, no new number was ever assigned to her. To the extent that Wilson provided false
information about her birthplace in connection with her application for a replacement card
in 1990, as alleged in the indictment, any such falsehood did not result in the assignment
of the SSN that Wilson provided to the marshal.
The government argues that Wilson’s false statement about being born in the
United States resulted in the entry of false information into the files of the SSA, and notes
the reference in section 408(a)(7)(A) to the “Commissioner’s authority . . . to establish
and maintain records.” But the reference to the basis of the Commissioner’s authority to
request certain information does not affect or modify in any way the conduct defined as
criminal by the statute: the use of an SSN that was assigned on the basis of false
information. Wilson was not charged with providing false information to the SSA in
1990 – and could not have been, since any such offense long pre-dated the applicable
limitations period. She was charged, rather, with using, during the interview with the
marshal in 2009, with intent to deceive, an SSN that had been assigned on the basis of
false information. Wilson’s SSN was assigned in 1972, on the basis of information that
the government concedes, for purposes of this case, was entirely accurate.
Because the government failed to prove a material element of the offense, we
reverse Wilson’s conviction on Count Five of the indictment. Although Wilson argues
6
that reversal on this count requires a new trial as to all counts, we disagree. This count
was so minor that Wilson’s conviction on its elements presented no cognizable threat of
unfair prejudice to her on the other counts on which she was tried. We remand the case to
the district court for resentencing.
CONCLUSION
For the foregoing reasons, and for those set forth in the accompanying summary
order, we REVERSE appellant’s conviction on Count Five, AFFIRM her convictions on
all other counts of the indictment, VACATE the judgment of the district court and
REMAND the case for resentencing.
7