                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2008

USA v. Agarwal
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1424




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 07-1424
                       ___________


             UNITED STATES OF AMERICA

                             vs.

                 RISHABH M. AGARWAL

                             Appellant.

                       ___________


       On Appeal from the United States District Court
           for the Western District of Pennsylvania
                (D.C. Criminal No. 05-cr-00278)
       District Judge: The Honorable David S. Cercone

                       ___________

         Submitted Under Third Circuit LAR 34.1(a)
                      May 23, 2008


BEFORE: SMITH, HARDIMAN, and NYGAARD, Circuit Judges.


                 Filed: November 20, 2008


                       ___________

                OPINION OF THE COURT
                                        ___________

NYGAARD, Circuit Judge.

                                             I.

       Rishabh Agarwal paid an undercover FBI agent $150.00 for a counterfeit Carnegie

Mellon University student identification card, with which he had hoped to gain access to

various campus facilities. He was arrested minutes after receiving the identification card

from the undercover agent. The Government charged Agarwal with one count of fraud in

connection with identification documents, in violation of The False Identification Crime

Control Act, 18 U.S.C. § 1028(a)(7).1    He was found guilty following a bench trial and

sentenced to two-years probation. The primary issue on appeal concerns what level of

connection must exist to interstate commerce to confer federal jurisdiction under 18

U.S.C. 1028(a)(7).2 The Government maintains that only a minimal nexus to interstate



       1
        An “identification document,” such as a driver’s license, is defined by the statute:
“[T]he term “identification document” means a document made or issued by or under the
authority of the United States Government, a State, political subdivision of a State, a
foreign government, political subdivision of a foreign government, an international
governmental or an international quasi-governmental organization which, when
completed with information concerning a particular individual, is of a type intended or
commonly accepted for the purpose of identification of individuals[.]” 18 U.S.C. §
1028(d)(2).



       2
        Agarwal also argues that the evidence that he intended to use the card to commit
another offense – namely criminal trespass under 18 Pa.C.S. 3503(a), is insufficient.
Following a thorough examination of the evidence presented at trial we are satisfied that
the evidence was indeed sufficient.

                                             2
commerce is required whereas Agarwal argues the nexus must be substantial. Because the

evidence here would support a finding of a substantial connection, we need not decide the

issue. We will affirm.

                                             II.

       The Government and defense counsel agreed upon and stipulated to most of the

facts. By way of a summary, the testimony and trial stipulations reveal that Agarwal

began corresponding with a confidential source of the FBI. He told this source that he

was studying in the United States as part of a planned expansion of his family’s pump-

making business back in India. Agarwal indicated that he did not have much of a social

life outside local universities. He also told the confidential source that he often checked

out books from the CMU library on his friends’ cards. Agarwal indicated that he wanted

to use CMU’s gym and “wanted free access to the robotics building.”

                                             III.

       Congress revamped Title 18, U.S. Code, § 1028 in 1982 to criminalize the

production, possession, and use of false identification documents and document-making

equipment. “Document” was the key word because, under the law as it existed, a

defendant had to actually possess a piece of paper or plastic before there could be a

criminal offense. At that time, there was no separate federal crime for assuming the

identity of another, and thus there could be no federal conviction for misappropriating

another’s identity.



                                              3
       That situation was remedied in 1998, when Congress enacted the Identity Theft

and Assumption Deterrence Act of 1998, which criminalized the use and transfer of a

“means of identification.” The statute allows that

       whoever ... knowingly transfers or uses, without lawful authority, a means
       of identification of another person with the intent to commit, or to aid or
       abet, any unlawful activity that constitutes a violation of Federal law, or that
       constitutes a felony under any applicable State or local law shall be
       punished as provided in subsection (b) of this section.

18 U.S.C. § 1028(a)(7). The addition of § 1028(a)(7) gave strength to the somewhat

ineffective law because a “means of identification” no longer required the production,

possession, or use of an actual identification document.

       The statute also has a jurisdictional element, which requires either that the

production, transfer, possession, or use of the means of identification be in or affect

interstate or foreign commerce. 18 U.S.C. § 1028(c)(3)(A). The legislative history of this

statute reflects Congress’ intention to “provide broad Federal jurisdiction over violations

of this section” and that only a “minimal nexus with interstate commerce” need be shown.

See H.R. Rep. No. 97-802 (1982), reprinted in 1982 U.S.C.C.A.N. 3519, 3532-33.

       Other courts interpreting the jurisdictional requirement of Section 1028 have

required the Government to prove only a minimal nexus between a defendant's conduct

and interstate or foreign commerce. See e.g., United States v. Jackson, 155 F.3d 942, 947

(8th Cir. 1998) (affirming conviction where the government demonstrated that

defendant’s possession of five or more fraudulent identification documents “affected



                                              4
interstate commerce by proving that possession of the stolen driver’s licenses was integral

to [defendant’s] scheme to defraud businesses and banks operating in interstate

commerce.”) Because, however, we need not decide the issue, we will save it for another

day.

       Here, the Government presented substantial evidence of a connection between

Agarwal’s crime and interstate commerce. For example, the record reflects his use of the

Internet, an instrumentality of interstate commerce, to make arrangements to purchase the

fraudulent identification card. See e.g., United States v. MacEwan, 445 F.3d 237, 245 (3d

Cir. 2006). The record demonstrates that the component parts of the identification card

traveled through interstate commerce. Testimony further established that CMU accepts

students not only from the United States, but also from other nations. Finally, the record

establishes that the identification card at issue could have been used to gain access to

facilities at a branch campus in California.

       Indeed, the District Court stated that it had seen many instances where the federal

nexus had been less significant than it was in Agarwal’s case. We agree. In this case,

Agarwal’s conduct in procurring a fraudulent identification card was an integral part of

his scheme. Sufficient evidence supports a substantial connection to interstate commerce.

                                               IV.

       In sum, viewing the evidence in the light most favorable to the Government, we

conclude that it has shown the requisite connection to interstate or foreign commerce



                                               5
under 18 U.S.C. § 1028(a)(7). United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996).

We will affirm Agarwal’s judgment and conviction.




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