                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 22 2011

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50441

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00380-R-1

  v.
                                                 MEMORANDUM *
RONALD GAITHER,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                            Submitted March 10, 2011 **
                               Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.


       The government appeals the district court’s dismissal of its charge of

aggravated identity theft under 18 U.S.C. § 1028A(a)(1) against defendant Ronald

Gaither (“Gaither”). The district court dismissed this count of the indictment

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
because (1) the predicate offenses were not related to terrorism; and (2) the stolen

identity belonged to a deceased victim. We have jurisdiction under 28 U.S.C. §

1291, and we reverse and remand.

      First, the predicate charges brought against Gaither, bank fraud and theft of

government funds, are expressly listed among those that serve as a basis for an

identity theft charge under § 1028A(a)(1). 18 U.S.C. §§ 1028A(c)(1), (5). The

district court’s belief that the statute applies only to terrorism-related offenses,

rather than “straight bank fraud,” is plainly incorrect.

      Second, Gaither’s argument that § 1028A(a)(1) does not criminalize the theft

of identity documents belonging to a deceased person is foreclosed by United

States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010), which held that the term

“person” as used in § 1028A(a)(1) includes both living and deceased persons.

After the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886,

1888–94 (2009) interpreted § 1028A(a)(1) so that the term “knowingly” modified

all subsequently listed elements of the crime, including “of another person,” we

were charged in Maciel-Alcala with further interpreting the term “person” to make

clear what exactly the defendant had to know. Contrary to Gaither’s argument,

therefore, Maciel-Alcala’s holding that “person” in § 1028A(a)(1) includes both

living and deceased persons is not merely dicta, but was the precise question under


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review. Although this case presents a different set of facts because the person

whose identity Gaither stole was in fact dead at the time of the unlawful use,

Maciel-Alcala’s holding as to how § 1028A(a)(1) should be construed as a matter

of law controls.

      Because the district court’s reasoning is contrary to the plain text of the

statute and our holding in United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir.

2010), its dismissal of the charge under § 1028A(a)(1) is REVERSED and the

case is REMANDED for further proceedings not inconsistent with this disposition.




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