United States v. Porter
2014 U.S. App. LEXIS 4228
| 10th Cir. | 2014Background
- Gloria Porter, NFFE officer and AMC Council secretary/treasurer, was indicted on 105 counts of wire fraud, 1 count mail fraud, and 1 count aggravated identity theft for diverting union funds and forging documents.
- Porter was the sole active signatory on the AMC Council bank account; a debit/ATM card was issued in her name in 2004 despite union rules against card use.
- Evidence showed Porter created and circulated fraudulent bank statements, used the council debit card for personal purchases (including delivery to her home), and mailed an LM-3 report for 2006 containing an allegedly forged signature.
- DOL/OLMS received LM reports in Denver; Porter testified LM reports were ordinarily mailed after signatures were obtained.
- At trial, a DOL investigator (Abendroth) matched purchases on AMC bank statements to vendors and testified she reviewed each charge as unauthorized and that transactions crossed state lines; jury convicted on all counts.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Porter) | Held |
|---|---|---|---|
| Whether a signature is a “means of identification” under 18 U.S.C. § 1028(d)(7) for aggravated identity theft | Signature qualifies as a form of a “name,” and §1028(d)(7)’s use of “any name” is expansive | Signature is not listed expressly in §1028(d)(7); Guidelines commentary and some district-court decisions suggest signature should be excluded | Court affirmed district instruction: a signature is a form of a “name” and thus a “means of identification” under §1028(d)(7) |
| Whether Application Note to U.S.S.G. §2B1.1 contradicts treating signatures as means of identification | Note’s exclusion (for cashing a stolen check) does not deny that a signature is a means of identification; it merely shows the guideline adjustment applies only when one ID is used to obtain another ID | Porter contends the example implies Congress intended not to treat signatures as means of identification | Court rejected Porter’s reliance on the Guidelines; the note is consistent with signature being an ID but describes a different scenario |
| Whether mail fraud (LM-3 filing) was supported by use of mails element | LM reports were routinely mailed; Porter caused the 2006 LM-3 to be delivered by mail even if she did not personally mail it | Porter argued the record lacked proof of how the 2006 LM-3 was delivered to Denver | Court held that circumstantial evidence and Porter’s testimony about routine mailing sufficed to show she knowingly caused the report to be mailed |
| Whether evidence supported multiple wire fraud convictions (interstate wires) | Bank statements, vendor testimony, debit-card charges, investigator’s matching, and concealment (fraudulent statements) established unauthorized purchases effected by interstate wire communications | Porter argued insufficient proof of unauthorized nature for many specific counts and relied on gaps/ambiguities in record | Court held evidence (investigator’s analysis, vendor testimony, account rules, and concealment) was sufficient for a rational juror to find guilt beyond reasonable doubt |
Key Cases Cited
- United States v. Blixt, 548 F.3d 882 (9th Cir. 2008) (held forging another’s signature constitutes use of that person’s name and thus a “means of identification” under §1028A)
- United States v. Alexander, 725 F.3d 1117 (9th Cir. 2013) (construed §1028(d)(7) as illustrative, rejecting argument that access-device exclusion limits the broader definition)
- Pereira v. United States, 347 U.S. 1 (1954) (mailing element satisfied where defendant caused mail use; mailing need not be personally performed by defendant)
- United States v. Nacchio, 573 F.3d 1062 (10th Cir. 2009) (reviews statutory interpretation questions de novo)