ID theft, fraud statute may be applied to witness tampering

A federal criminal statute that prohibits the unlawful use of identification information may be applied to a defendant accused of tampering with a witness.

Judge Norman K. Moon of the Western District of Virginia denied the defendant’s motion to dismiss, rejecting his assertions that the statute’s placement in the U.S. Code, Congressional intent and its prior usage solely against fraud meant that its application against him was absurd.

“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 judge wrote. “‘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.’”

The May 3 opinion is US v. Snow (VLW 022-3-185).

The attorneys representing the defendant did not respond to a request for comment. The U.S. Attorney’s Office in the Western District declined to comment on the decision.

Witness tampering scheme

For the last 30 years, Larry Snow served as the elected Commissioner of Revenue for Greene County. He was last reelected in 2021 after running unopposed.

According to the statement of facts filed in connection with Snow’s recent witness tampering plea, his son, Bryant Snow, was arrested after selling narcotics to a federal confidential informant in 2017. The son pled guilty to state drug charges in 2018.

During jail calls with his son before sentencing, Snow said he had discovered and planned to expose the identity of the confidential informant. As a result of their recorded conversations, Snow’s son received a higher sentence than expected.

In May 2019, the federal government informed the Snows that they were targets of an investigation into their conduct regarding the informant.

Five months later, Snow drafted, signed and mailed approximately 12,000 leaflets to citizens in Greene County purportedly in support of the sheriff’s opponent in the upcoming 2019 election. Snow accused the incumbent sheriff of giving lenient sentences to drug dealers if they acted as police informants, and he referenced the person who informed on his son.

In later jail calls, Snow informed his son about the leaflets. As part of his plea to witness tampering, Snow admitted he sent the leaflets with the intention of harassing the informant so he would stop working with police.

Indictment

Snow and his son were indicted in October 2019 and again in June 2020 after further investigation. The first indictment charged both Snows with conspiracy to commit three offenses related to witness tampering. Each was linked to the violation of 18 U.S.C. §1028(a)(7), which prohibits the unauthorized transfer, possession, or use of a means of identification of another person in connection with any unlawful activity.

According to the superseding indictment, Snow was recorded telling his son that he used his official access to the Virginia Department of Motor Vehicles, or DMV, database to discover the informant’s identity and he agreed to mail copies of the information to his son in prison.

The son allegedly showed the DMV information to other inmates and his girlfriend so they could let everyone know who the informant was and what he was doing so that it would “would come back and bite him in the ass.” Authorities with a search warrant found printouts of the DMV information in the son’s cell.

Absurdity doctrine

In April 2022, Snow moved to dismiss the three counts against him on the basis 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.”

He specifically argued that it would be absurd to read the term “any” in 18 U.S.C. §1028(a)(7)’s language concerning “any unlawful activity” to include conduct unrelated to fraud or identity theft. Snow insisted that this interpretation was required by three things: the statute’s placement with other fraud and identity theft prohibitions, Congress’s intention to only have it apply in such contexts, and the fact that the government had only used it to prosecute fraud and identity theft.

Moon noted that the absurdity doctrine can only come into play “where the literal, straightforward reading of a statute is discordant or ridiculous on its face. If an appeal to Congressional expectations or prosecutorial practice is necessary to show some incongruity, the absurdity doctrine is out of the question.”

Here, the judge found nothing facially absurd about the statute or anything demonstrably at odds with Congressional intent or the statute’s placement amongst other provisions in its application here.

Finding the lack of prosecutions under the statute for non-fraudulent conduct “entirely unremarkable,” Moon commented that “[m]ost criminal defendants who set out to harass a government informant do not have access to a government database.”

While the judge noted the court’s prior acknowledgment of “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,” he cited a U.S. Supreme Court case for the conclusion that “something that ‘may seem odd… is not absurd.’”

Guilty pleas

On May 6, 2022, Snow pled guilty to one charge of attempted witness tampering and agreed to resign his elected position. In addition to probation, fines, and restitution, he agreed to be sentenced to prison for up to nine months. Snow’s son also tendered a guilty plea to attempted witness tampering, and both men are scheduled to be sentenced this summer.