One Cannot Consent to the Use of One's Identity for an Unlawful Act

US v. Otuya: Otuya was involved in a scheme to defraud Bank of America using stolen "convenience checks" and the bank accounts of willing college student accomplices.  For his trouble he was convicted at trial of fraud and aggravated identity theft.  Among the evidence admitted at trial were items recovered from a backpack in Otuya's possession when he was arrested, including a Bank of America account profile and the ID of another Bank of America customer.  Otuya was sentenced to 72 months on the fraud charges, plus a consecutive 24-month term for the identity theft.

On appeal, Otuya challenged his convictions and sentences, all of which the Fourth Circuit affirmed.  As to his convictions, Otuya first argued that the evidence seized from the backpack was improperly admitted because it was offered to prove his poor character.  The court disagreed, agreeing with the district court that the evidence was intrinsic to the crimes charged and not "prior bad act" evidence at all and, even if it was, it was offered for reasons other than proof of character.  Second, Otuya argued that his identity theft conviction could not stand because his use of another's ID was not done "without lawful authority" because it was done with the consent of the other person (one of the college students).  The court disagreed, holding that "one does not have 'lawful authority' to consent to the commission of an unlawful act."  As to his sentence, Otuya argued that an enhancement for more than 50 victims did not apply because those "victims" - individual account holders with Bank of America - were made whole by the bank and sustained no actual losses.  Noting a circuit split on the issue, the court dodged the issue and noted an alternate definition of "victim" that included those who had their mail stolen and clearly numbered more than 50.  The court also affirmed the district court's loss calculation and its imposition of a 3-level enhancement for Otuya being a manager of the operation.

NOTE: This case was decided on June 19, 2013.