UNITED STATES v. ZITRON: Aggravated Identity Theft Appeal

Harvey Zitron was convicted on two counts of aggravated identity theft, in addition to five counts of filing false tax returns, and three counts of using an unauthorized access device in connection with a company called Millennium Republic, a seller of chemical products.

In 2002, while operating the company, he suggested to an employee that she take over the firm, and she agreed. Cynthia Gentner operated the firm under the names of two corporations she formed: Cyn-Lex and Granite Industries. In spite of the apparent change in ownership, she testified that she continued to take orders from Zitron. From 2002 and 2003, she deposited company checks into her personal account at the direction of Zitron. She also took cash out and gave it to him.

In 2003, Zitron devised another check-chasing scheme in which he told Gentner to write checks from the corporations she named to “Charles Schrabel.” This was the name of a friend of Zitron, and Gentner agreed to do so, knowing that Schrabel was an alias and that this person did not work for either of the firms. Zitron then instructed Schrabel and Gentner to use the check-cashing services of a convenience store, where Schrabel initially cashed checks in person but later told the store’s owner than Gentner was authorized to cash his checks.

Between 2003 and 2005, Gentner cashed 265 checks at the store for Zitron, in a total amounting to $2,566,981.60. She gave the cash to Zitron. The scheme continued until the store’s owner said he would no longer cash the checks unless Schrabel came with Gentner and provided valid ID, which never happened. None of the money Zitron received was reported on his income tax filings. While he reported negative amounts of adjusted gross income on his tax forms for 2003, 2004, and 2005, he actually deposited a total of “$820,513.75 in cash into several bank accounts: $425,728.00 into an account held in his own name; $202,277.00 into a joint checking account he owned with a friend; and $192,508.75 into an account he controlled but held in his son Jordan’s name” according to court documents.

In addition to failing to report the money, he misused the names and Social Security numbers of his ex-wife and his son to get credit cards. He did not have permission to use their personal identity information in this way, and they discovered that he had these cards only after Zitron has burdened them with substantial debt.

Zitron challenged the conviction on the two counts of aggravated identity theft, arguing that under 18 U.S.C. § 1028A(a)(1), the term “knowingly” modifies the phrase “without lawful authority,” asserting that t insufficient evidence was presented at trial that he knowingly acted without lawful authority in using the personal identity information of his son, since it was common in his family to take out credit cards under the names of his children.

According to the court’s ruling, however, it ” found that “the phrase ‘without lawful authority’ prohibits methods of obtaining another person’s identification beyond stealing.” United States v. Hurtado, 508 F.3d 603, 607 (11th Cir.2007) (per curiam), abrogated on other grounds by Flores–Figueroa, 556 U.S. 646, 129 S.Ct. 1886.” In the case, the court said, “The government established the “without lawful authority” element in two ways-with testimony from Jordan that Zitron did not have permission to use his identity, and with evidence that Zitron used Jordan’s means of identification for an unlawful purpose. This evidence provides sufficient support that Zitron acted “without lawful authority,” so that any error cannot be considered plain. Because there was no error that was plain, we need not address the other requirements of the plain error rule.”

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