United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
Torresen United States Chief District Judge
me is the Defendants' motion to dismiss Counts Four and
Six. (ECF Nos. 106, 108). Counts Four and Six charge
Defendants Jose Febles and Juan Febles, respectively, with
aggravated identity theft in violation of 18 U.S.C. §
1028A(a)(1). The Defendants assert that this charge is
multiplicitous of the Count One charge of conspiracy to
commit access device fraud under 18 U.S.C. § 1029(b)(2)
because both rely on the same credit card and "do not
contain any element not already alleged and fully
encompassed" in the other. Defs.' Mot. to Dismiss 2.
That being so, Defendants argue, pursuing both charges
violates the Fifth Amendment protection against double
may be subjected to multiple punishment for the same conduct
under more than one statute so long as the legislature
intended to create separate offenses." United States
v. Gerhard, 615 F.3d 7, 18 (1st Cir. 2010); see also
Garrett v. United States, 471 U.S. 773, 778 (1985)
("Where the same conduct violates two statutory
provisions, the first step in the double jeopardy analysis is
to determine whether the legislature . . . intended that each
violation be a separate offense.").
purposes of this case, subsection (a) of § 1029 makes it
unlawful to: (1) use one or more unauthorized access devices
during any one-year period to obtain anything of value
aggregating $1, 000 or more or (2) possess fifteen or more
counterfeit or unauthorized access devices. 18 U.S.C. §
1029(a)(2)-(3). The term "access devices" includes
credit cards. 18 U.S.C. § 1029(e)(1); see also
United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003).
Subsection (b) of § 1029 makes it unlawful for a person
to be "a party to a conspiracy of two or more persons to
commit an offense under subsection (a) of this section, if
any of the parties engages in any conduct in furtherance of
such offense." § 1029(b)(2).
aggravated identity theft statute, § 1028A(a)(1), reads:
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses,
or uses, without lawful authority, a means of
identification of another person shall, in addition to
the punishment provided for such felony, be sentenced to a
term of imprisonment of 2 years.
§ 1028A(a)(1). The term "felony violation
enumerated in subsection (c)" is defined to include
§ 1029 offenses. See § 1028A(c)(4).
Additionally, § 1028A(b)(2) requires that the two-year
sentence provided for in § 1028A(a)(1) be imposed
consecutively to any term of imprisonment for a predicate
felony. United States v. Martin, 325 Fed.App'x
7, 8 (1st Cir. 2009) ("The plain wording of the
aggravated identity theft statute reveals that Congress
'specifically authorize[d] cumulative punishment under
two statutes.'") (quoting Missouri v.
Hunter, 459 U.S. 359, 368 (1983); United States v.
Lyles, 506 F.App'x 440, 454 (6th Cir. 2012)
("Congress clearly intended that the sentence prescribed
by § 1028A should run consecutively to any sentence
imposed under § 1029(a)(2)") (relying on
Garrett, 471 U.S. at 778). The language and
structure of these statutes demonstrate that Congress
intended to authorize separate, cumulative punishment for a
violation of § 1028A that is based on a violation of
§ 1029. From this I conclude that Congress intended
these two provisions to constitute separate offenses.
United States v. Bonilla, 579 F.3d 1233, 1244 (11th
Cir. 2009) (finding no double jeopardy where a defendant
faced charges under § 1029(a)(2) and §
legislative history of § 1028A supports this conclusion.
As the First Circuit has observed, "a major concern of
§ 1028A(b)(3)'s drafters was to ensure, by making
the sentences truly cumulative, that prosecutors had an
incentive to charge both the aggravated identity theft
violation and the underlying predicate felony or
felonies." United States v. Vidal-Reyes, 562
F.3d 43, 54 (1st Cir. 2009) (construing H.R.Rep. No. 108-528,
at 10, to show that the bill amended Title 18 to provide for
a "mandatory consecutive penalty enhancement of 2 years
for any individual who knowingly transfers . . . the means of
identification of another person in order to commit a serious
Federal predicate offense" (emphasis added).
I do not believe that the legislative intent to create two
separate offenses is ambiguous, the Blockburger
test, which is applied as a rule of statutory construction to
help determine legislative intent, removes any doubt. See
Garrett, 471 U.S. at 778-79. The Supreme Court in
Blockburger v. United States, held that "where
the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the
other does not." 284 U.S. 299, 304 (1932); see also
United States v. Nascimento, 491 F.3d 25, 48 (1st Cir.
2007). Here, each of the offenses requires proof of at least
one element that the other does not. A § 1029 conspiracy
requires an agreement between the defendant and at least one
other, and the required overt act in furtherance of the
conspiracy need not be committed by the defendant. Under
§ 1028A, the Government must prove two elements not
required under § 1029(a), that is, that the access
device actually belonged to another person and that the
defendant knew that the access device belonged to another
person. See Flores-Figueroa v. United States, 556
U.S. 646, 657 (2009).
for the reasons stated above, the Court DENIES the motion to