United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
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
Motion to Dismiss
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.
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.
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.
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).
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.
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
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.
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 ...