Southern Discomfort

United States v. Barrie, No. 09-3035-cr (2d Cir. August 31, 2010) (Katzmann, Hall, Chin, CJJ)

Alalim Barrie was convicted of bank fraud and aggravated identity theft in connection with a scheme in which he and his confederates obtained money from banks using counterfeit checks and stolen credit card accounts. Southern District venue was clearly proper with respect to the bank fraud, since Barrie transferred stolen money into banks located in the Bronx. But he argued that there was no Southern District venue for the associated identity theft, since all of the actions that constituted aggravated identity theft occurred outside the district.

While the circuit agreed with Barrie’s view of the facts, it nevertheless affirmed. In a prosecution under 18 U.S.C. § 1028A, venue is proper in “any district where the predicate felony offense was committed, even if the means of identification of another person was not transferred, possessed, or used in that district.”

This result is dictated by the language of § 1028A itself, which makes it a crime to commit identity theft “during and in relation to any” enumerated felony offense. Indeed, the Supreme Court has held that the nearly identical language of 18 U.S.C. § 924(c)(1), which makes it a crime to use or carry a firearm “during and in relation to any crime of violence,” allows venue to lie in any district in which venue is appropriate for the underlying crime of violence.

The same outcome is required here. The underlying bank fraud was “committed in all of the places that any part of it took place. Thus, for venue purposes it does not matter that” Barrie only committed identity theft in other districts. He did so “during and in relation to” a bank fraud that took place in the Southern District, and that was sufficient.