Sunday, July 20, 2008

Case o' The Week: Great Miranda Decision Involves No Confession - Miranda-Lopez and Aggravated Identity Theft

In a great decision invoking our beloved "rule of lenity," Judge Silverman holds that the aggravated identity theft statute - 18 USC Section 1028A -- requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, __ F.3d __, 2008 WL 2762392 (9th Cir. July 17, 2008), decision available here.

Players: Decision by Judge Silverman joined by Judge Berzon; dissent by Judge Bybee.

Facts: El Salvadorean Miranda-Lopez was arrested at the border when he was stopped in a car with two other men. (WL star cites not yet available). Miranda-Lopez’s identification card – in the name of “Garcia-Fregoso” – didn’t match his face or fingerprint. He was arrested and tried for illegal reentry and for aggravated identity theft, under 18 USC § 1028A. (Note that § 1028A carries a two-year mandatory minimum consecutive sentence).

The jury instructions did not require the government to prove that Miranda-Lopez knew that the I.D. actually belonged to another real person. The defense brought several Rule 29 motions before the verdict, but did not raise this “knowledge” challenge. The district court denied these motions and there was a guilty verdict – but the judge mused that the real § 1028 issue was this “knowledge” question.

Catching the hint, the defense finally raised the mens rea issue in post-verdict Rule 29 motion. The trial court denied the motion, holding the knowledge issue had been waived because it had not been articulated by the defense before the jury verdict.

Issue(s): “The issue here is whether the defendant must know that the identification he uses belongs to another person. In other words, does the adverb, ‘knowingly’ in the statute modify ‘of another person’ or merely ‘transfers, possesses, or uses’?”

Held: “Today we join the D.C. Circuit in holding that the crime of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document.”

Of Note: This is a great decision on a horrible statute, but the opinion is also of interest for its Rule 29 remedy. The majority and dissent agree that the sufficiency of the § 1028A jury instruction should be reviewed for plain error – and that there was not plain error because of (then) ambiguities in the law. Nonetheless, the panel remands for reconsideration of the Rule 29 motion, because Miranda-Lopez had finally raised the “knowledge” issue in a brief a week after trial. The panel holds, “Miranda-Lopez did not waive the issue by failing to raise it until after the jury was discharged.”

This is interesting Rule 29 law: it means the defense needn’t specify its theory of dismissal during pre-verdict Rule 29 motions in order to preserve legal arguments for dismissal (though the panel does observe, here, that the prescient trial court was on sua sponte notice about the mens rea issue).

How to Use: The two-year mand-min sentence of Section 1028A is the new hammer joyfully abused by lazy or fearful prosecutors to coerce pleas in otherwise triable cases. Miranda-Lopez creates a welcome new defense to this hated statute. Look for new model jury instructions on Section 1028A offenses in light of Miranda-Lopez, and make sure to submit revised instructions until the Ninth's model instruction committee gets around to this task.

Note, though, that this defense can still be challenging: as Judge Silverman muses, the new mens rea requirement “is not an insurmountable burden [for the government], especially in a case where the identification document contains someone else’s photo and does not appear to be a fake.”

For Further Reading: Boston AFPD Martin Richey has written an excellent outline on identity theft and aggravated identity theft, available here. Martin there chronicles a circuit split over the mens rea requirement at issue in Miranda-Lopez. The Fourth, the Eighth, and the Eleventh Circuits have found no “knowledge of real person” element. The D.C., and now, the Ninth Circuits require this mens rea element.

Let’s hope the Supremes let this split deepen a bit before snooping around this issue.

Image of the Honorable Barry Silverman from the Sandra Day O'Connor School of Law, at

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Blogger Brad Bogan said...

Might not take long for the Supremes to snoop. A pretty compelling cert petition was filed on this issue earlier this week:

Thursday, July 24, 2008 12:36:00 PM  

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