Supreme Court Will Decide Whether Ignorance is a Defense to the Federal Crime of Identity Theft

by Lee Gesmer on October 21, 2008

Today, the Supreme Court agreed to decide this issue:

Whether an individual who used a false means of identification but did not know it belonged to another person can be convicted of “aggravated identity theft” under 18 U.S.C. 1028A(a)(1).

The case involves an illegal alien who was prosecuted for use of false identity papers. It must be hard enough to be arrested as an illegal alien, but much worse to discovery that your punishment will not be deportation, but rather indictment and trial for aggravated identity theft, a felony punishable with two years imprisonment with no probation allowed. Your defense: you may have purchased false identification in order to work, but you didn’t know that you were using another person’s social security number, as opposed to a purely fictitious SSN.

This is the situation that Ignacio Carlos Flores-Figueroa faced when the U.S. Court of Appeals for the Eighth Circuit held that the government was not required to prove that Mr. Flores-Figueroa knew that he was using another person’s ID, and upheld his two year sentence under 18 U.S.C. 1028A(a)(1). This was the second time that the Eighth Circuit had ruled this way on this issue.

Surprisingly, another federal appellate court saw it differently, and held that knowledge is an element of the crime. Thus, the Supreme Court was presented with a split of authority between the federal circuits which it has agreed to resolve.

Here’s the question, legal beagles and lovers of grammar and clear writing. The law reads:

[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

The Eighth Circuit held that this law is unambiguous, and therefore it need not look beyond the language of the law to examine the legislative history and congressional intent. If held that “knowingly” only modifies “transfers, possesses, or uses”, and therefore the government is not required to prove that a defendant knew the means of identification belonged to another person (as opposed to a fictitious person).

In U.S. v. Villanueva-Sotelo the U.S. Court of Appeals for the District of Columbia saw the issue differently, holding that the law was ambiguous, thereby permitting it to review the legislative history and the congressional purpose of the law. Based on this review the D.C. Circuit Court concluded that the mens rea (knowledge) requirement extends to the phrase “of another person,” meaning that the government must prove the defendant actually knew the identification in question belonged to someone else.

What do you think?

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