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United States v. Franklin

United States District Court, D. Idaho

July 27, 2016



          B. Lynn Winmill Chief Judge


         Pending before the Court is the Government’s Motion to Admit Other Acts Evidence Pursuant to Fed.R.Evid. 404(b) (Dkt. 65), Defendant Franklin’s Motion to Dismiss (Dkt. 70), and the Government’s Motion in Limine to Exclude Evidence of an Absence of Monetary Harm (Dkt. 71). The Court will address the motion to dismiss, and then turn to the motions in limine.

         1. Motion to Dismiss

         Franklin argues that the Government has failed to allege the essential elements required to charge him with Counts Six through Eight of the Superseding Indictment for aggravated identify theft in violation of 18 U.S.C. § 1028A. See Superseding Indictment, Dkt. 17. The Government notes that Franklin is not charged in Counts Seven and Eight. Therefore, the Court will address only Count Six.

         According to the Superseding Indictment, on or about August 3, 2015, Franklin and his alleged co-defendant, Jassmine Pettaway, traveled to Boise and went to various retail stores in Boise and Meridian to execute an alleged fraud scheme. Superseding Indictment at ¶ 2-4, Dkt. 17. Franklin and Pettaway are accused of perpetrating acts of fraud at three separate retail outlets, including a Home Depot, a Nike retail store, and a Destination XL store. Id. Franklin and Pettaway allegedly obtained counterfeit credit cards “embossed and encoded with unauthorized access device numbers, including credit card number and debit card numbers, without the knowledge or permission of the account holders or issuing bank or credit union.” Id. at ¶ 7. In addition to the falsified credit and debit card numbers, the defendants also possessed a Michigan Driver’s License with Pettaway’s picture on it. Id. at ¶ 8. Both the cards and the Driver’s License were inscribed with a falsified name, “J.B.”. Id.

         The Government argues that Franklin and Pettaway knowingly used the false card numbers and Driver’s License to purchase goods at the retail stores which were “engaged in interstate commerce, ” which constitutes the basis for the alleged wire fraud claims in Counts One through Five. Id. at ¶ 6. Wire fraud under 18 U.S.C. § 1343 is a felony, and the government alleges that the cards were the numbers of real persons, which may amount to Aggravated Identity Theft under 18 U.S.C. § 1028A. Id. at ¶ 16.

         An indictment must be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Bailey, 444 U.S. 394, 414, (1980) (Internal quotation marks omitted). In cases where the indictment “tracks the words of the statute charging the offense, ” the indictment will be held sufficient “so long as the words unambiguously set forth all elements necessary to constitute the offense.” United States v. Fitzgerald, 882 F.2d 397, 399 (9th Cir.1989) (Internal quotation marks omitted).

         In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, “the district court is bound by the four corners of the indictment.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “[A]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on its merits.” United States v. Milovanovic, 678 F.3d 713, 717(9th Cir. 2012) (Internal citation omitted). “The court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.” United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). “The indictment either states an offense or it doesn't. There is no reason to conduct an evidentiary hearing.” Boren, 278 F.3d at 914.

         Here, the Government has sufficiently alleged the elements of Count Six under 18 U.S.C. § 1028A. In general, aggravated identity theft under 18 U.S.C. § 1028A may be charged as follows:

Whoever, [1] during and in relation to any felony violation enumerated in subsection (c), [2] knowingly transfers, possesses, or uses, without lawful authority, [3] 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.

18 U.S.C. § 1028A(a). All three elements are present for purposes of charging Franklin. Relevantly, the Superseding Indictment specifically states:

. . .DERRICK COURTNEY FRANKLIN, II, knowingly possessed and used, without lawful authority, a means of identification of another person, to wit: the bank card numbers of real persons during and in relation to a felony violation enumerated in 18 U.S.C. § 1028A(c).

Superseding Indictment, at ¶ 16, Dkt. 17. Under the first element, the Government has alleged that Franklin has committed wire fraud for purposes of 18 U.S.C. § 1343. SeeSuperseding Indictment, at ¶ 5-13, Dkt. 17. Wire fraud is codified under Chapter 63, which is specifically contemplated as an applicable felony for purposes of aggravated identify theft. See 18 U.S.C. § 1028A(c)(5) (“any provision contained in Chapter 63 (relating to mail, bank, and wire ...

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