United States District Court, N.D. Georgia, Gainesville Division
REPORT AND RECOMMENDATION
J. CLAY FULLER, Magistrate Judge.
This case is before the Court on the Joint Motion To Dismiss Counts 19-33 filed by Defendants Medina and Rodriguez. (Doc. 92). For the reasons discussed below, it is RECOMMENDED that Defendants' motion be DENIED.
Defendants seek dismissal of Counts 19 through 33 of the Indictment for failure to state an offense. (Doc. 92). "An indictment is sufficient if it (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Steele, 178 F.3d 1230, 1233-34 (11th Cir. 1999) (internal quotation omitted). "In order to avoid dismissal, the charging document must contain the elements of the offense intended to be charged, and sufficiently apprise the defendant of what he must be prepared to meet.'" United States v. Baxter, 579 Fed.Appx. 703, 705 (11th Cir. 2014) (unpublished decision) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006)). "In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment, and more specifically, the language used to charge the crimes." Sharpe, 438 F.3d at 1263 (emphases in original).
I. Counts 19 Through 30
Defendants move to dismiss Counts 19 through 30 for "fail[ure] to set forth the elements of 42 U.S.C. § 408(a)(7)(B) regarding Social Security Benefits." (Doc. 92 at 1). In order to establish a violation of 42 U.S.C. § 408(a)(7)(B), the Government must prove that Defendants "with intent to deceive, falsely represent[ed] a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person." 42 U.S.C. § 408(a)(7)(B); see also United States v. Harris, 376 F.3d 1282, 1291 (11th Cir. 2004). "Thus, the elements of the offense are (1) false representation of a Social Security number, (2) with intent to deceive, (3) for any purpose." Harris, 376 F.3d at 1291.
Counts 19 through 30 of the Indictment charge that Defendants:
aided and abetted by each other and by others known and unknown to the grand jury, for the purpose of obtaining a payment for themselves to which the defendants were not entitled, with intent to deceive the Internal Revenue Service and to obtain a[n] income tax refund to which the defendants were not entitled, falsely represented a social security account number assigned by the Commissioner of Social Security to be the social security number of the person identified by initials in the chart below, when in fact the number was not the social security number assigned by the Commissioner of Social Security to such person... in violation of 42 U.S.C. § 408(a)(7)(B).
(Doc. 1 at Counts 19 through 30). The referenced chart lists, for Counts 19 through 30, the date each Social Security number was falsely represented, the document containing the false Social Security number, the initials of the purported Social Security account holder, and the last four digits of the Social Security number used. ( Id. ). The undersigned finds that the Indictment sufficiently charges the elements of § 408(a)(7)(B) because it alleges that Defendants (1) falsely represented Social Security numbers, (2) with intent to deceive, and (3) for any purpose, i.e., "for the purpose of obtaining a payment for themselves to which [they] were not entitled." See Harris, 376 F.3d at 1291.
Defendants contend, however, that Counts 19 through 30 should be dismissed because "[t]he language of the indictment counts 19 through 30 fails by its own terms to qualify as a violation of 42 USC 408(a)(7)(B) because it fails to set forth the essential elements of said violation. Specifically, it fails to set forth any material fact regarding payment or benefit' derived from the alleged mismatch.'" (Doc. 92 at 2; see also Doc. 96 at 2-3). That contention is without merit. In Harris, the court noted that "[a] few courts have concluded that the third element of a § 408(a)(7)(B) offense requires the government to prove that the defendant committed the charged conduct for the purpose of obtaining something of value." 376 F.3d at 1291 n.8. The court then found that "[t]his requirement has no basis in the text of the statute, however, which describes the mens rea element as merely with the intent to deceive.'" Id. (citing 42 U.S.C. § 408(a)(7)(B). Therefore, the court "conclude[d], as the First, Sixth, Eighth, and Tenth Circuits have, that the charged conduct may be committed for any purpose.'" Id. (citing United States v. Means, 133 F.3d 444, 447 (6th Cir. 1998); United States v. McKnight, 17 F.3d 1139, 1143 (8th Cir. 1994); United States v. Doe, 878 F.2d 1546, 1553 (1st Cir. 1989); United States v. Darrell, 828 F.2d 644, 647 (10th Cir. 1987)). The undersigned thus finds that Counts 19 through 30 are not subject to dismissal for failing to plead facts about the "payment or benefit derived from the allege mismatch"-as Defendants contend-where those Counts allege that Defendants falsely represented a social security account number "for the purpose of obtaining a payment for themselves to which [they] were not entitled, with intent to deceive" the IRS and obtain a refund to which they were not entitled.
Defendants also asserts that "[t]he Internal Revenue Service specifically states that a mismatch between an [Individual Taxpayer Identification Number ("ITIN") and a Social Security number is not a material factor, " citing to an IRS publication attached to Defendants' motion called "Individual Taxpayer Identification Number (ITIN) Reminders for Tax Professionals." ( Id. at 1-2; Doc. 92-1). That publication provides instructions to tax professionals about the filing of returns where the ITIN does not match the Social Security number provided on the taxpayer's W-2. ( See Doc. 92-1). In determining whether an indictment should be dismissed for failure to allege an offense, however, "a court ruling on a motion to dismiss may not look beyond the four corners of the indictment, nor may it properly dismiss an indictment for insufficient evidence." Baxter, 579 Fed.Appx. at 706 (unpublished decision). "It is well-settled that a court may not dismiss an indictment... on a determination of facts that should have been developed at trial.'" Sharpe, 438 F.3d at 1263 (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987)). Accordingly, the Court cannot consider the exhibit attached to Defendants' motion to determine whether Counts 19 through 30 sufficiently charge the elements of § 408(a)(7)(B). As discussed above, the undersigned finds that they do. It is therefore RECOMMENDED that Defendants' motion to dismiss Counts 19 through 30 for failure to state an offense be DENIED.
II. Counts 31 Through 33
Defendants move to dismiss Counts 31 through 33 for "fail[ure] to meet the simplest requirement of Aggravated Identity Theft." ( Id. at 2). Count 31 charges that on April 21, 2012, Defendants "knowingly possessed and used without lawful authority a means of identification of another person, specifically, the social security number issued to S.R., bearing number xxx-xx-9073, such possession and use being in relation to the commission of the felony offense set forth in Count 22 of this Indictment, " in violation of 18 U.S.C. § 1028A(a)(1). (Doc. 1 at Count 31). The referenced felony offense charged in Count 22 is the false representation of a Social Security number on a W-2 for the purpose of obtaining income tax refund to which Defendants were not entitled ( see id. at Count 22), as discussed in the previous section. Counts 32 and 33 similarly charge Defendants with violating 18 U.S.C. § 1028A(a)(1) by knowingly possessing and using the Social Security numbers of other persons in the commission of the felony offenses charged in Counts 26 and 29, i.e., the false representation of the referenced Social Security numbers on W-2s to obtain income tax refunds. ( See Doc. 1 at Counts 26, 29, 32, 33).
18 U.S.C. § 1028A(a)(1), the aggravated identity theft statute, provides, "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." "To establish a violation of § 1028A(a)(1), the government must prove that the defendant: (1) knowingly transferred, possessed, or used; (2) the means of identification of another person; (3) without lawful authority; (4) during and in relation to a felony enumerated in § 1028A(c).'" United States v. Ehrlich, 384 Fed.Appx. 879, 881 (11th Cir. 2010) (unpublished decision) (quoting United States v. Hurtado, 508 F.3d 603, 606-07 (11th Cir. 2007), abrogated on other grounds by Flores-Figueroa v. United States, 556 U.S. 646 (2009)). "Moreover, in Flores-Figueroa, ...