United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Defendant Marla R. McDonald ("Defendant") is charged with sixteen counts in the Superseding Indictment, including making a false statement to obtain Social Security benefits (42 U.S.C. § 408(a)(4)), mail fraud (18 U.S.C. §§ 1341 and 1342), and wire fraud (18 U.S.C. §§ 1342 and 1343). For each of these three substantive counts, the Superseding Indictment also adds a related count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), which prohibits the knowing and intentional use of another person's identity in connection with a crime. In each instance, the general nature of the crime is the same: Defendant falsely represented that one Michael McCord Hunter ("Hunter") was the biological father of her son, N.D.H. in order to obtain Social Security benefits after Hunter's death. This matter is now before the court on Defendant's motion to dismiss Counts Two, Four, and Six, namely the counts that charge Defendant with aggravated identity theft. The court conducted oral argument on the motion on August 12, 2014. For the reasons stated below, Defendant's motion is denied.
I. Factual and Procedural Background
This case arises from Defendant's alleged false statement with regard to her application for Social Security benefits on behalf of her minor son, N.D.H. The court summarizes the relevant facts as alleged by the government.
Defendant is a single mother residing in Garden City, Kansas. Her oldest son, N.D.H., was born in Tremonton, Utah, in April 2008. At the time of N.D.H.'s birth, Defendant was in a relationship and residing with Hunter. The hospital where N.D.H. was born failed to include in the birth information a paternity declaration. As such, when the State of Utah initially registered the child's birth information, no father's name was listed. Because the birth registration is what triggers a request to the Social Security Administration for assignment of a Social Security number, N.D.H.'s Social Security record is also devoid of any paternity information.
A day or two after the hospital provided this initial birth information to the state, Hunter submitted the required paternity declaration claiming to be N.D.H.'s father. The State of Utah subsequently amended its records to reflect the change. The Social Security Administration did not. However, in May 2009, a DNA test confirmed that Hunter could not be N.D.H.'s biological father.
On June 6, 2011, Hunter committed suicide. A few weeks later, Hunter's sister, Michaela Rios ("Rios") took some of Hunter's belongings that Hunter had allegedly intended to give to N.D.H. to Defendant at Defendant's residence. While there, Defendant allegedly told Rios of her plan to file for Social Security survivor benefits on behalf of N.D.H. on Hunter's Social Security account. Rios allegedly told Defendant that Defendant could not do this because Defendant knew that Hunter was not N.D.H.'s biological father. Defendant allegedly insisted on her plan and purportedly offered to share the benefits with Rios. Rios allegedly declined Defendant's offer.
On September 20, 2011, Defendant submitted an application for child's insurance benefits on behalf of N.D.H. on Hunter's account. Because Hunter was not listed as N.D.H.'s father for purposes of Social Security, the Social Security Administration required Defendant to provide proof that Hunter was, in fact, N.D.H.'s father. Defendant allegedly provided a copy of the amended Utah birth certificate which listed Hunter as N.D.H.'s father. Defendant's application for benefits was approved in October 2011. Her initial award of benefits was $5, 094, which included back benefits for June through September 2011 and a $255 funeral benefit.
In the meantime, Hunter's family contacted both the Social Security Administration and the Garden City Police Department accusing Defendant of improperly filing for death benefits on Hunter's account when Defendant knew that Hunter was not N.D.H.'s biological father. The Social Security Administration sent Defendant a letter notifying her that it had information that Hunter was not N.D.H.'s biological father and requesting that Defendant contact the Administration. On September 18, 2012, Defendant provided the Administration with a copy of the DNA test results showing that Hunter was not N.D.H.'s biological father. The Administration ceased payment of child survivor benefits and posted an over-payment of benefits to Defendant's Social Security account in the amount of $17, 559.
Following the posting of the over-payment, the Administration's Office of Inspector General initiated a criminal investigation. This investigation resulted in the obtaining of a sworn statement from Defendant, written in her handwriting, stating as follows:
I Marla McDonaled [sic] lied to Social Security to get money to take care of my son, [N.D.H.] I appied [sic] for Child Survivor Benefits on behalf of my son on Michael Hunter's Social Security Record. I provided a birth certificate listing Michael Hunter as his father, however I knew he wasn't the father of [N.D.H.] because of a dna test.
On March 14, 2014, the grand jury returned a one-count Indictment (Dkt. 1) against Defendant charging her with making a materially false statement and representation on an application for Social Security child survivor's benefits. On July 23, 2014, the grand jury returned a sixteen-count Superseding Indictment (Dkt. 18) charging Defendant with making a false statement to obtain Social Security benefits (42 U.S.C. § 408(a)(4)), mail fraud (18 U.S.C. §§ 1341 and 1342), and wire fraud (18 U.S.C. §§ 1342 and 1343). For each of these three substantive counts, the Superseding Indictment also added a related count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), which prohibits the knowing and intentional use of another person's identity in connection with a crime.
On July 24, 2014, Defendant moved to dismiss Counts Two, Four, and Sixteen of the Superseding Indictment, namely the counts that charge her with aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Dkt. 20. In her motion, Defendant argues that she cannot be charged with aggravated identity theft because: (1) the plain language of the statute requires an individual to "convert" his or her identity to that of another, (2) the purpose and intent of the statute is to criminalize that event where one individual uses the identification of another person as his or her own identification, and (3) Defendant did not "convert" Hunter's identity to her own. The government objects to Defendant's ...