The U.S. Court of Appeals for the 8th Circuit has affirmed a conviction for aggravated identity theft, holding that the evidence supported the jury’s finding that the defendant knew that the name on the account of a fraudulent check he cashed was a real person. The court also ruled that the trial judge did not abuse his discretion by allowing the government to admit evidence of the defendant’s prior acts of identity theft.
On Feb. 10, in U.S. v. Clark, a unanimous panel affirmed a denial of Jason Clark’s motion for judgment of acquittal. Judge David Doty of the District of Minnesota issued the denial on May 2011.
Clark was charged with two counts of bank fraud, bank fraud conspiracy, identity theft and aggravated identity theft. The government’s case included evidence of a hub-and-spoke conspiracy. Clark was one of three “spokes” who worked with a man at the center of the scheme, Marcus Benson.
In June 2011, Clark was sentenced to 48 months in prison, including concurrent 24-month sentences for the bank fraud conspiracy and each of the two bank fraud counts, and 24 months for aggravated identity theft, to be served consecutively.
Clark argued that there wasn’t enough evidence for a reasonable juror to find beyond a reasonable doubt that he knew that the name and account number on a $10,250 check he received from Benson belonged to an actual person. The check bore the name and account number of a person the court referred to by the initials D.R.O.
According to the ruling, Clark deposited the check into his Wells Fargo account on Sept. 19, 2007. On Sept. 20, he withdrew $3,600 from his account. The next day, he withdrew $4,500 from his account and deposited a $145,000 cashier’s check into his account. Both the $10,250 check and the $145,000 cashier’s check were returned as being fraudulent.
Judge Roger Wollman wrote the 8th Circuit opinion, joined by Judges Duane Benton and Diana Murphy.
The court determined that “[a]mple evidence in the record supports the jury’s finding that Clark knew that D.R.O. was a real person.”
Wollman observed that Clark had a friendship and long-standing association with Benson and one of the co-conspirators, Jason Hansen. Wollman also noted that Hansen turned to Clark when he needed Benson’s contact information.
Wollman wrote that Clark’s activities “followed the same pattern as the activities of [co-conspirator Nou] Thao and Hansen, who regularly communicated with Benson. A reasonable juror could infer from this evidence that Clark had knowledge of the improper use of personal information of real people, including [the check recipient], during the conspiracy.”
The 8th Circuit also determined that Doty properly allowed the government to introduce evidence of Clark’s prior identity theft conviction. According to the opinion, Clark pleaded guilty in October 2001 to an identity theft committed in May 2000, in Hennepin County, Minn. Clark used someone else’s Social Security number in a fraudulent attempt to obtain credit. During the hearing, Clark admitted that he knew that the victim had lost more than $2,500 as a result.
Wollman wrote, “Similar to the situation in this case, the prior act involved Clark using the means of identification of another actual person for attempted financial gain.…Given the strong similarities in kind between the two acts, the approximately seven-year period between the prior act and the conduct alleged in this case did not render the identity theft conviction too remote for proper considerations.…The district court acted within its broad discretion in concluding that the potential for unfair prejudice did not substantially outweigh the probative value of the prior acts evidence. The…evidence was probative of Clark’s intent, knowledge, and absence of mistake concerning his knowledge that he was using the means of identification of an actual person. Under the circumstances, any prejudice arising from such evidence would not have been unfair prejudice.”
In an e-mailed statement, Jeanne Cooney, a spokesperson for the U.S. Attorney’s Office for the District of Minnesota, which prosecuted the case, said, “Of course we are pleased that the Court of Appeals upheld the conviction. Identity theft is a growing problem, and this office will continue to vigorously prosecute those who use the identity of others for illegal purposes.”
Clark’s lawyer, James Raymond Behrenbrinker of Minneapolis, did not respond to a request for comment.
Sheri Qualters can be contacted at firstname.lastname@example.org.