Improper use of government database charge stands

Where a man was charged with accessing a motor vehicle database to obtain the name of a government informant, his motion to dismiss was denied. There was nothing “absurd” about applying the statute to his alleged conduct, even if the law was intended to apply to identify theft or fraud and had not been used this way before.

Background

On Sept. 8, 2021, the court ruled that Larry Snow’s alleged use of a Virginia Department of Motor Vehicles database to obtain the name of a government informant fell within the ambit 18 U.S.C. § 1028(a)(7), which proscribes the unauthorized transfer, possession, or use of “the means of identification of another person . . . in connection with, any unlawful activity.” Now pending is a subsequent motion to dismiss, in which Larry urges that application of § 1028(a)(7) to his alleged conduct would violate the canon of construction permitting courts to look beyond the unambiguous meaning of a statute’s text when failing to do so would produce an absurd result.

Specifically, Larry argues that it would be absurd to read the term “any” in the phrase “any unlawful activity” to include criminal prohibitions unrelated to fraud or identity theft. Larry insists that this exceptional understanding of “any” is required by: (1) the statute’s placement within a group of provisions targeting fraud and identity theft; (2) that it appears to have been understood by members of Congress to have its application there and (3) that the provision has, as of yet, only been used by the government in prosecutions for fraud and identity theft.

Analysis

There is nothing, on its face, that is absurd about a statute that prohibits the unauthorized use of personal identifying information—in this case, vehicle identification numbers—to violate a separate criminal statute—in this case, 18 U.S.C. § 2722(a), which prohibits unlawfully obtaining and disclosing personal information (here, the name of the vehicle’s owner) from a motor vehicle record. Nor is there anything “demonstrably at odds with clearly expressed congressional intent” or “so gross as to shock the general moral or common sense” about finding such a statute situated within a group of provisions of much narrower scope.

That some or all members of Congress who voted on the language of § 1028(a)(7) might not have anticipated its application outside of prosecutions for fraud is simply not relevant. “The fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity; instead, it simply demonstrates the breadth of a legislative command.”

Nor does Larry’s argument from past practice add anything. That the government has, up to now, not thought or had occasion to invoke this provision outside of prosecutions for fraud has no more interpretive significance than what members of Congress thought to say on the House floor. Indeed, it is entirely unremarkable. Most criminal defendants who set out to harass a government informant do not have access to a government database.

In its previous opinion, the court acknowledged the peculiarity of placing a statute with such broad applications within a series of provisions otherwise addressing the particular unlawful activities of identity theft and fraud. But something that “may seem odd . . . is not absurd.”

Defendant’s second motion to dismiss denied.

United States v. Snow, Case No. 3:19-cr-00018, May 3, 2022. WDVA at Charlottesville (Moon). VLW 022-3-185. 4 pp.