Grave robbing has been a tempting crime for millennia—the victim is in no shape to defend himself, and he would seem to have no further use for worldly possessions. Egyptian pyramids were specifically engineered to guard against it, but modern-day thieves are more typically gold-diggers in figurative-but-not-literal sense, seeking instead names and numbers that can be used to appropriate the departed’s identity.
Federal law prohibits identity theft, and that statute bars the taking of dead people’s identities as well as those of the living, the 4th U.S. Circuit Court of Appeals has ruled in a case of first impression. The decision in United States v. George (VLW 020-2-004), reversing a ruling by a North Carolina judge, brings the 4th Circuit in line with decisions from other circuits.
Lester George used a dead person’s name, date of birth and Social Security number in an attempt to purchase a home in North Carolina and secure a loan insured by the U.S. government. In 2018, federal prosecutors charged him with, among other things, aggravated identity theft.
George pleaded guilty to all counts, but later moved to withdraw his guilty plea to the identity theft count because the district court had previously held that a defendant couldn’t be convicted of that offense if the victim whose identity was stolen was deceased. U.S. District Judge Terrence Boyle granted the motion and dismissed the count. George was sentenced to time served on the remaining charge, and the government appealed.
Judge Henry Franklin Floyd, writing for a unanimous 4th Circuit panel this month, overruled Boyle’s decision, vacating the order allowing George to withdraw his guilty plea and remanded the case for resentencing.
The statute at issue prohibits stealing the “means of identification of another person,” but doesn’t define the term “person.” Cracking open a dictionary proved less helpful than might be expected—some dictionary definitions limit a ‘person’ to a living being, while others don’t. Nevertheless, the use of the term in common parlance helps to illustrate its ordinary meaning, Floyd said.
“The word ‘person’ is generally used to refer to both the living and the dead. That is why, after all, the adjectives of ‘living’ or ‘deceased’ are added to the word; the adjective modifies and narrows the general noun,” Floyd wrote. “Thus, as the Government points out, the question of whether the word ‘person’ includes a ‘deceased person,’ in effect, answers itself.”
For the living and the dead
The 4th Circuit had previously held that the word “person” in the identity theft statute did not stretch so far as to cover the pilfering of a corporation’s identity, but Floyd rejected George’s argument that the two situations were analogous.
George also noted that North Carolina lawmakers have used the adjectives of “deceased” or “dead” to modify “person” in state law, and so the plain meaning of “person” didn’t necessarily include dead ones. But Floyd said state law provided no guidance in assessing how a term has been used by Congress, and, in any event, the statute’s legislative history strongly suggested that Congress intended for “person” to encompass the living and the dead.
Every other federal circuit to consider the issue so far has reached the same conclusion. Multiple judges in those circuits have pointed out that the term “person” is used in another subsection of the law dealing with acts of terrorism, and interpreting the word the way George would prefer it be interpreted would have the undesirable side effect of hollowing out a law against using dead people’s identities to facilitate an act of terrorism.
Paul Sun and Kelly Margolis Dagger of Raleigh, North Carolina, represented George.