Whether the Government can convict a person for aggravated identity theft, which requires proof that he "knowingly transfer[red], possesse[d], or use[d] . . . a means of identification of another person[,]" even if he did not know that the identification he used for employment belonged to another person.
Ignacio Flores-Figueroa, a Mexican immigrant used a false name, social security number, and resident alien card to obtain employment. Unbeknownst to him, these documents belonged to another person. When the government discovered this, it charged him with aggravated identity theft under 18 U.S.C. § 1028A(1)(a), and he was found guilty. Flores-Figueroa contends that under the statute, he committed mere identity fraud rather than aggravated identity theft because he did not know that the identity information in fact belonged to a real person. The government argues that the statute should apply to all defendants who use another's identity information, regardless of their mens rea, or intent. The outcome of this case will impact how identity theft cases are prosecuted as well as the rights of immigrants who have used falsified identity documents.
Questions as Framed for the Court by the Parties
Whether, to prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the Government must show that the defendant knew that the means of identification he used belonged to another person.
Petitioner Ignacio Flores-Figueroa, an immigrant from Mexico, secured false identification documents in order to gain employment at L&M Steel Services. He used a false name, social security number and resident alien card. After six years of using a false name, he wanted to use his real name. Therefore, he purchased another set of false social security and permanent resident cards. He presented these new documents to L&M Steel, which subsequently reported the change of identification request to the U.S. Immigrations and Customs Enforcement (Immigrations and Customs). But unbeknownst to Flores-Figueroa, these new documents belonged to another person.
The United States charged Flores-Figueroa with the "misuse of immigration documents . . . , illegal entry into the United States . . . [, and] aggravated identity theft." Flores-Figueroa pleaded guilty to the first two offenses, but challenged the aggravated identity theft charge. In the United States District Court for the Southern District of Iowa, he moved for an acquittal of the aggravated identity charge. Flores-Figueroa argued that there was insufficient evidence to find a violation of the federal aggravated identity statute because he did not know that the identification documents belonged to another person. The district court found in favor of the United States, and subsequently sentenced Flores-Figueroa to a prison term of seventy-five months. The sentence included a mandatory twenty-four month sentence for the aggravated identity theft charge. On appeal, the Eighth Circuit affirmed the district court's decision.
Relying on its previous decision in United States v. Mendoza-Gonzalez, the Eighth Circuit found that the United States did not need to prove that Flores-Figueroa knew the identification documents belonged to another person. Following the Mendoza-Gonzalez interpretation of the aggravated identity theft statute, the court ruled that the term "knowingly" did not apply to the term "of another person."
According to 18 U.S.C. § 1028A(a)(1), any person who "during and in relation to" certain predicate offenses "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" is guilty of aggravated identity theft and must receive a two-year prison sentence. Petitioner Flores-Figueroa argues that "knowingly" should apply to both the verbs ("transfers, possesses, or uses") as well as the direct object ("a means of identification of another person"), so that a defendant is only guilty under the statute if he knows the identity information he is using belongs to another individual. The United States argues that "knowingly" only applies to the verbs, such that the defendant's knowledge that the identity information belonged to another individual is irrelevant.
Natural Understanding of the Language
Flores-Figueroa contends that in common usage, when a state-of-mind adverb modifies a transitive verb, it also modifies the verb's direct objects. In support, Flores-Figueroa gives the example of the sentence, "Jane knowingly ate the last slice of pizza." While it is grammatically possible to interpret the sentence so that "knowingly" only applies to "ate," in general usage and understanding, Jane would know not only that she was eating the pizza, but also that it was the last slice. As applied to § 1028A(a)(1), Flores-Figueroa argues that "knowingly" modifies both the verbs and the direct objects, such that the state must prove that the defendant knew he was transferring, possessing, or using the identification information, and that he knew the information belonged to another individual.
The United States, however, contends that the most common understanding of the language indicates that "knowingly" only applies to the verbs, and not to the direct object. The government points to the fact that in English grammar, an adverb modifies verbs, not nouns. Furthermore, the presence of a comma following both the verbs and the clause "without lawful authority" places a structural barrier between the adverb and the direct object. The government thus concludes that Congress did not intend "knowingly" to apply to the fact that the identity information belonged to someone else. To underscore this congressional intent, the United States points to 18 U.S.C. § 1546(a), which criminalizes unlawful use of identity documents and "formed the predicate for petitioner's conviction under § 1028A(a)(1)." In § 1546(a), Congress made it illegal to "knowingly . . . use . . . any . . . document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made . . ." 18 U.S.C. § 1546(a). While in § 1546(a) Congress used "knowing" to modify both the use of the documents and the fact that the documents were forged, in § 1028A(a)(1) Congress used knowingly only to modify the verbs. Because both provisions are in the same act, the United States argues, Congress intentionally excluded a knowledge requirement from the provision of § 1028A(a)(1) dealing with the fact that the information belonged to another.
Traditional Criminal Law Rules
According to Flores-Figueroa, interpreting the statute so that "knowingly" applies to "a means of identification of another person" is consistent with traditional criminal law rules. First, Flores-Figueroa argues, a traditional understanding of theft requires that the defendant know the stolen property belongs to another. Second, under the criminal law, there is a presumption that the mens rea requirements apply to all elements of the crime. Because Congress has not "plainly" indicated a "contrary purpose," Flores-Figueroa argues, the traditional rules should apply so that the statute requires a defendant to know the information belongs to another.
The United States counters Flores-Figueroa's arguments first by contending that the "broad presumption" that mens rea requirements apply to all elements of the crime does not exist. It also asserts that Flores-Figueroa failed to demonstrate that "theft" has a settled common law meaning, especially in the identity theft context. The United States furthermore claims that the defendant's reliance on a traditional understanding of "theft" is misplaced, as the term appears nowhere in § 1028A(a)(1). It merely appears in the title of the provision, which is "insufficient to trigger the . . . application" of common law theft principles, should such principles exist. The traditional rules should not therefore undermine the plain meaning of the statute, according to the United States.
Purpose of the Statute
Flores-Figueroa argues that Congress' intent in enacting the aggravated identity theft statute was to require harsher punishment for the most severe forms of identity theft "above and beyond the penalties provided for the predicate offense." By ensuring that sentences for aggravated identity theft would be served in prison and consecutive to sentences for the predicate offense, Congress wished to punish those defendants who obtain identity information they know belongs to someone else for the purpose of, for instance, draining the victim's bank account. According to Flores-Figueroa, Congressional intent to deter and punish this more serious offense would not be served by punishing defendants who use identity information that happens to belong to another to the same degree as defendants who use identity information they know belongs to another. Flores-Figueroa thus contends that Congress intended him and similarly-situated defendants to be guilty of identity fraud rather than aggravated identity theft.
The United States disputes Flores-Figueroa's view of congressional intent, arguing that Congress sought to protect victims of identity theft by enacting stricter penalties for those who use identity information belonging to another. For victims, the precise mens rea of the criminal is irrelevant to the damage suffered. Thus, to best protect victims, Congress would want to provide harsher penalties for criminals who knowingly use identification information that is not their own, regardless of whether the criminal knows the identity information actually belongs to someone else. The United States points out that adopting Flores-Figueroa's proposed interpretation would mean that two victims who suffered the same harm from identity theft would receive different amounts of protection from the statute, depending on whether the criminal took the identity information out of a database or made it up.
Rule of Lenity
Flores-Figueroa urges the Court that, in any case, it should adopt the rule of lenity and interpret the statute in his favor. According to the rule of lenity, ambiguous criminal laws should "be interpreted in favor of the defendants subjected to them." Flores-Figueroa contends that any ambiguity that might exist in the scope of the § 1028A(1)(a) mens rea requirement should therefore be resolved in his favor, thus applying "knowingly" to both the use of the identification information and the fact that the information belonged to another.
The United States asserts that the rule of lenity only applies when a "grievous ambiguity" remains at the end of the court's statutory analysis. The government argues that the language and purpose of the statute do not leave any such ambiguity. As a result, the rule of lenity would be inapplicable in this case.
The Supreme Court's decision will have considerable impact on the government's immigration enforcement practices. The aggravated identity theft statue is a powerful tool for "[f]ederal prosecutors pursuing illegal immigrants." Eighth Circuit case law contributes to the effectiveness of this practice, since an accused immigrant could be convicted even though such immigrant did not know that their false identification documents belonged to another person. Therefore, the burden of proof for prosecutors is more lenient, as compared to other jurisdictions. Reversing the Eighth Circuit ruling would weaken the ability to prosecute aggravated identity theft, since most accused immigrants are unaware that their identification documents belong to another person.
Immigration enforcement actions impact certain minority groups in a disproportionate manner. For instance, Hispanic employers may be the target of increased immigration raids under the belief that they may employ illegal immigrants. These raids would interfere with and adversely impact the daily function of these Hispanic businesses. Interference with Hispanic businesses would have a dampening effect on the U.S. economy in general, as Hispanic documented workers alone account for twenty percent of the labor force.
According to a group of criminal law professors, the Eighth Circuit's ruling conflicts with the notion that crimes of "increased culpability warrant[ ] more severe punishment." The Eighth Circuit applies a mandatory two year sentence to all those convicted of aggravated identity theft, regardless of whether the accused knew that the identification documents belonged to another person. Flores-Figueroa "exhibited less criminal culpability than [other] ‘identity thieves'" Therefore, according to the professors, it would be unreasonable for him to receive the same sentence.
According to Advocates for Human Rights, prosecution under the aggravated identity theft statute can be a means for the prosecution to bypass established immigration procedures for false identification convictions. Advocates for Human Rights cites a Postville, Iowa immigration raid as an example: immigrants in that raid pled guilty to lesser charges and agreed to waive all rights to immigration proceedings, which subsequently resulted in their deportation. In waiving their rights, the accused immigrants forfeit the opportunity to appear before an immigration judge. Immigrants also waive their rights to certain forms of relief, such as the voluntary departure option, which provides for "greater flexibility for future reentry." By agreeing to a plea bargain, an immigrant is precluded from reentering into the U.S. for a minimum of ten years, or a minimum of twenty years for "a second or subsequent removal or an aggravate felony." Reversing the Eighth Circuit ruling would conceivably decrease the likelihood of immigrants accepting plea bargains, thereby allowing immigrants to take advantage of the established immigration procedures.
Finally, according to the Maryland Crime Victims' Resource Center, finding for Flores-Figueroa would detrimentally affect the victims of identity theft. In 2002, the Federal Trade Commission (FTC) received 161,819 identity theft complaints. A 2003 FTC study found that almost ten million Americans fell victim to some form of identity theft in the preceding year. Identity theft detrimentally affects credit ratings and the reputations of victims; victims spend an average of 600 hours and $1,400 to recover. The 2003 FTC study found that the yearly cost to businesses and financial institutions was $47.6 billion.
Statutory construction cases such as this one often seem dry and perhaps pedantic. The intricacies of the rules of grammar and precise legislative intent can, however, drastically impact the meaning of a law. This case provides an example of just such an impact, in a realm that has received a great amount of media attention: identity theft. Flores-Figueroa argues that under the aggravated identity theft statute, the defendant must know both that he is using identity information that is not his own, and that the information actually belongs to another person. The United States contends that the defendant need not know that the information actually belongs to someone else, so long as he knows he is using information that is not his own. The outcome of this case affects not only those defendants charged with violating the statute, but also the victims of identity theft.
- Melanie Henson: False Identity May Not Mean ID Theft in All Cases, (last visited Jan. 29, 2009)
- Adam Liptak, Justices Take Case on Illegal Workers and Penalties for Identification Theft, N.Y. TIMES, Oct. 20, 2008, at A14.
- Jerry Markon, Top Court to Hear Immigrant's Appeal in Identity-Theft Case, WASH. POST, Oct. 21. 2008, A10.