United States v. Landry, 631 F.3d 597

Landry was indicted on nine counts—wire fraud, aggravated identity theft, social security fraud, and related charges—went to trial, and the jury convicted on all counts; she timely appealed challenging evidentiary rulings, closing arguments, and sentencing considerations.
Evidence showed Landry, while employed at MBNA and later Verizon, had access to Admiral Landry's personal information and used it to apply for credit cards, with the Government alleging motive and opportunity from her access to sensitive data.
Her applications in 2007 included using all 9s for the social security number and her own name for some fields; some applications were approved or reviewed differently, and a Chase card was opened while Discover required more review.
In 2008, Landry was stopped for a traffic violation and gave a false sister’s name, a made-up SSN, and a made-up date of birth; the stop was later used to argue intent and knowledge.
The Government relied on MBNA/Verizon testimony about Landry's security clearances and access to information, Landry's debt and garnishment history, and testimony that systems require inputting a customer’s own SSN, to support her guilt on the charged offenses.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of 2008 traffic-stop evidence under Rule 404(b).	Landry asserts the stop is irrelevant or prejudicial.	Landry's defense of innocent involvement warranted such evidence.	Admitted; special relevance to intent/knowledge; probative value not substantially outweighed by prejudice.
Admission of the drunk-driving conviction evidence at trial.	Rule 609 limitations barred use as impeachment; prejudicial effect.	Open door doctrine allowed questioning about termination and underlying conviction to rebut a false impression.	Admissible; Landry opened the door by her testimony; prejudicial impact outweighed by countervailing need.
Closing argument comments about the cost/expense of expert witnesses.	Such comments were improper and prejudicial.	No objection at trial; plain error standard applies; comments were not severe enough to warrant reversal.	No plain error; remarks were limited and not shown to affect substantial rights or fairness.
Court's consideration of the growth of identity theft in sentencing.	Court impermissibly relied on general deterrence about identity theft superfluously to enhance sentence.	Deterrence is a proper factor and the Act allows considering growth of identity theft even with a mandatory two-year term.	Proper; district court did not err in considering deterrence and the growing nature of identity theft under 18 U.S.C. § 3553(a).

United States v. Hicks, 575 F.3d 130 (1st Cir. 2009) (abuse-of-discretion standard for Rule 404(b) admissibility)
Udemba v. Nicoli, 237 F.3d 8 (1st Cir. 2001) (two-part test for Rule 404(b) special relevance and Rule 403 balancing)
United States v. Varoudakis, 233 F.3d 113 (1st Cir. 2000) (similarity and probative value in Rule 404(b) analysis)
United States v. Lugo Guerrero, 524 F.3d 5 (1st Cir. 2008) (prior bad acts to show absence of coincidence; permissive use)
United States v. Hansen, 434 F.3d 92 (1st Cir. 2006) (waiver/non-waiver considerations in evidentiary rulings)
United States v. Norton, 26 F.3d 240 (1st Cir. 1994) (Rules 402 and 403 permits Strauss-type impeachment evidence when relevant)
United States v. Politano, 522 F.3d 69 (1st Cir. 2008) (deterrence considerations post-Booker in sentencing)
United States v. Booker, 543 U.S. 220 (2005) (structural Booker framework for sentencing discretion)