Summary
reversing district court decision that held the aggravated identity theft statute inapplicable where permission was given to use identification
Summary of this case from United States v. HillOpinion
No. 14-10319
08-31-2015
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. CLIFFORD D. BERCOVICH and HOWARD WEBBER, Defendants - Appellees.
NOT FOR PUBLICATION
D.C. No. 3:13-cr-00662-RS MEMORANDUM Appeal from the United States District Court for the Northern District of California
Richard Seeborg, District Judge, Presiding
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The government appeals from the district court's order dismissing the aggravated identity counts against Clifford D. Bercovich and Howard Webber ("appellees"). We have jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, and we reverse and remand.
The district court dismissed the aggravated identity theft counts brought under 18 U.S.C. § 1028A, because the indictment failed to allege that appellees transferred, possessed, or used another person's means of identification without that person's consent. We later held in United States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015) (per curiam), that "regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner, the illegal use of the means of identification alone violates § 1028A." Id. at 1185-86. In light of our intervening decision in Osuna-Alvarez, we reverse the district court's order dismissing the section 1028A counts, and remand for further proceedings.
REVERSED and REMANDED.