Appellate Law

CA1: sentencing issues for passing forged checks

By S. COTUS

US v. Alfano, No. 07-1624 (unpublished).  The defendant ?used the name of a fictitious person to cash one of the counterfeit checks...? as well as ?the account number of Toys R Us and the payor name of Atlantic Coast Contractors, both actual entities.?  The defendant argues, on appeal only that because he used the name of a fictitious person, 2B1.1(b)(10)(C)(I) doesn?t apply. But, the First says, on plain error review, that because the government was not relying on a theory that he used someone else?s identification, that it doesn?t really matter.  Likewise, the fact that he tries to pass a check with corporate names rather than individuals still means that he tried to identify himself as someone else (there might be room to revisit this, because it isn?t as if a corporation actually passes the check to the teller, its authorized agent does). 

The First also says that it is a closer question about whether checks are ?another means of identification under 2B1.1(b)(10)(C)(i) which ?requires that two means of identification be used, one to create the other, and that, here, the second means is absent. In other words, even if defendant used ?means of identification? to produce the counterfeit checks, those checks were not ?another means of identification,? like a credit card, a driver's license, or a bank loan, the examples used in the background note to section 2B1.1.?  However, because it wasn?t raised, the error wasn?t plain.

Full post as published by Appellate Law and Practice on April 02, 2008 (boomark / email).