United States v. Matthew Munksgard (11th Cir. January 2019)
Bank Fraud/18 U.S.C. § 1014– Evidence that a bank was federally insured before a fraud offense and shortly thereafter provided sufficient evidence to prove that the institution at issue was federally insured at the time of the offense.
Identity Fraud/18 U.S.C. § 1028A– Element requiring a defendant’s “use” of another’s means of identification only requires that the defendant used another’s identity for some purpose and is not limited to defendants attempting to impersonate or act on behalf of another person.
Munksgard was convicted of bank fraud and aggravated identity theft in connection with false statements he made in several loan applications to his bank. Munksgard supported several of these loan applications with fraudulent claims that he had contracts with several companies. On one of these fake contracts, he forged the signature of an employee at one of those companies.
On appeal, Munksgard argued that the government had failed to prove the jurisdictional element of § 1014, which requires proof that the bank in question was federally insured at the time of the fraud. At trial, the government presented a certificate of FDIC insurance that was issued when the bank was initially chartered, over twenty years before the fraud offense. There was also testimony by one of the bank’s executives that the bank was FDIC insured three years after the offense and that the bank was not required to renew its certificate very often. There was no direct evidence that the bank was insured at the time of the offense.
The Court held, “albeit reluctantly,” that this evidence was sufficient to prove the bank’s insured status, contending that circuit precedent allows a jury to infer a bank’s status on the date of the offense if there is evidence showing that the bank was insured prior to that date and shortly thereafter. This evidence, coupled with the “universal presumption that all banks are federally insured,” was sufficient to prove Munksgard’s guilt beyond a reasonable doubt.
The Court did complain, however, that the government has “inexplicably” struggled to prove this element for half a century “despite the ease with which insurance coverage [can be] demonstrated—certificate, contract, cancelled check, etc.” The Court warned that federal prosecutors are “cruisin’ for a bruisin’” and admonished them to “do better.” In dissent, Judge Tjoflat went a step further, attacking the inference of a bank’s insured status from its prior or subsequent status and arguing that a presumption of a bank’s insured status would be unconstitutional.
Turning to Munksgard’s conviction for aggravated identity theft, the Court considered the scope of § 1028A’s language, which apples when one “knowingly transfers, possesses, or uses” another’s means of identification in connection with certain felonies under § 1028A(c).
Munksgard argued that the government had not proved that Munksgard “used” the identity of the employee whose signature he forged since Munksgard never purported to be the employee or otherwise act on his behalf. The Court rejected this narrow definition of “use,” however, holding for the first time that the plain and ordinary meaning of the word “use” under § 1028A only requires the government to prove that a defendant employed, put into action, or availed himself of another’s identity “for the accomplishment of some purpose.” Munksgard “used” the employee’s identity that when he forged the employee’s signature to obtain a loan.
Appeal from Northern District of Florida
Opinion by Newsom, joined by Tjoflat and Marcus