United States v. Sandra White
846 F.3d 170
| 6th Cir. | 2017Background
- Sandra White, owner/operator of a travel agency, obtained lower fares by falsely representing non-military clients as military and earlier had accreditation revoked for prior airline frauds.
- When airlines demanded proof of military status, White manufactured fake Armed Forces Identification (AFID) cards using clients’ real names/dates of birth and sent them to airlines; airlines reported suspected forgeries to investigators.
- White was indicted on wire fraud and aggravated identity theft (18 U.S.C. § 1028A); at trial the jury convicted her on both counts; she received 70 months on fraud and 24 months consecutive on identity theft.
- At trial the court admitted evidence of manufactured AFIDs and limited evidence of post-discovery repayment negotiations (permitting proof of actual repayments but excluding extended loss-recoupment bargaining).
- At sentencing the parties agreed to a loss amount of $663,610 (within U.S.S.G. §2B1.1(b)(1)(H) range) and White appealed, challenging (1) the statutory definition of “use” under §1028A, (2) exclusion of after-the-fact repayment negotiation evidence, and (3) the loss calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether creating and submitting fake ID cards "uses" another's means of identification under 18 U.S.C. § 1028A | Gov: manufacturing and submitting fake AFIDs that purport to be clients’ IDs constitutes a “use” in relation to the underlying fraud | White: §1028A’s term “uses” is ambiguous and should not reach mere lies about others or uses that do not impersonate or act in another’s name (relying on Miller/Medlock) | Court: Affirmed conviction — fabrication/submission of AFIDs is use of another’s means of identification analogous to forging/signing and falls within §1028A |
| Admissibility of evidence of post-discovery repayment negotiations | White: evidence of later repayment negotiations is probative of intent and should be admitted | Gov: such after-the-fact efforts have low probative value on prior intent and are inadmissible under Rules 402/403 and circuit precedent | Court: No abuse of discretion — allowed proof of actual repayments but properly excluded extended post-confrontation negotiation evidence |
| Proper calculation of victim loss for Guidelines | White: airline loss testimony was subjective and overstated; calculation was speculative | Gov: loss calculation based on standard airline auditing practices and supported by witnesses and exhibits; parties agreed on amount at sentencing | Court: No clear error — methodology acceptable, parties agreed on $663,610 loss, within the Guidelines range |
| Denial of motion to dismiss aggravated identity theft count | White: Count Two should be dismissed for failure to state §1028A offense | Gov: indictment adequately alleges use by manufacture and submission of fake AFIDs | Court: Denial affirmed in light of statutory application to facts (as explained above) |
Key Cases Cited
- United States v. Miller, 734 F.3d 530 (6th Cir. 2013) (construed “uses” narrowly and reversed aggravated-identity convictions where defendant lied about others’ actions)
- United States v. Medlock, 792 F.3d 700 (6th Cir. 2015) (applied Miller to limit §1028A where defendants lied about services rendered; distinguished forgery/signature-forging situations)
- United States v. Carter, 483 F. App’x 70 (6th Cir. 2012) (post-accusation repayment and remediation efforts have minimal probative value for intent and may be excluded under Rule 403)
- United States v. Lumbard, 706 F.3d 716 (6th Cir. 2013) ("without lawful authority" in §1028A covers misuse even with permission from the person whose information is used)
- Flores-Figueroa v. United States, 556 U.S. 646 (2009) (mens rea requirement: knowledge that identification belonged to another satisfies §1028A mental state)