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National Crime Victim Law Institute

United States v. Holmes, No. 09-14035, — F.3d —, 2010 WL 375156 (11th Cir. Feb. 4, 2010)

February 04, 2010

Defendant, convicted of violating the federal aggravated identity theft statute, 18 U.S.C. § 1028A, appealed. Defendant’s convictions were related to her use of the victim’s social security card to apply for a driver’s license in October 2004 and for a state identification card in December 2007. On appeal, defendant argued that the government failed to meet its burden of proof under Flores-Figueroa v. United States, a case in which the United States Supreme Court recently held that to convict someone under 18 U.S.C. § 1028A, the government must to prove that the charged individual knew that the means of identification at issue belonged to an actual person. In evaluating defendant’s appeal, the court reviewed the uncontested evidence of defendant’s repeated use of the victim’s identity, including proof that defendant had successfully used the victim’s birth certificate to obtain a passport in January 2004 and had used the victim’s personal information to secure a line of credit to purchase a 2007 Chrysler. The court found such evidence highly probative of defendant’s guilt because, inter alia, a reasonable jury could have found that, after defendant successfully used the victim’s birth certificate to obtain a passport, she knew that the birth certificate and corresponding social security card belonged to a real person, and that defendant would not have sought credit using the victim’s personal information if she was not confident that the victim likely had an actual credit history. Based on this and other evidence, the court held that a reasonable jury could have found that defendant knew she was using the social security card of a real person when she used the victim’s card to apply for the driver’s license and identification card. Accordingly, the court affirmed defendant’s convictions.