Case o' The Week: Doe, a Drear, a New-Rule Drear: Doe and Proof of Knowledge of Real ID for Agg Identity Theft
“Keepin’ it real” just got easier, in the Ninth (unfortunately).
United States v. John Doe, 2016 WL 6958647 (9th Cir. Nov. 29, 2016), decision available here.
Players: Decision by visiting Sr. District Judge Garbis, D. Maryland, joined by Judges Silverman and Nguyen.
Facts: John Doe refused to give his name, through the appeal. Id. at *1 & n.1. The victim of this ID case was born in ’63 and later obtained a social security card. Id. Before ’87, the victim’s birth certificate and social security card was sold; someone used these docs to obtain replacements. Id. at *1. The victim’s identification was then used for 27 years without authorization. Id. Evidence showed Doe used the victim’s identity in 2002 to get a driver’s license. That license was periodically renewed until 2014 when Doe was arrested. Id. Doe was charged with agg ID theft, and false statements in immigration docs. Id. at *2. He was convicted after trial. Id.
Issue(s): “Doe contends that the Government failed to prove an
element of the offense—specifically that he knew that the false identity he used belonged to a real person.” Id. at *1. “Doe acknowledges that the Government proved that [the victim] was a real person. . . . Doe contends however, that, without direct proof of his knowledge (such as proof that he knew [victim] or had any connection to the sale of [the victim’s] birth certificate and identifying information), the evidence was insufficient to establish his knowledge that V was a real person.” Id. at *3 (footnote omitted). “[T]he issue here presented is whether the circumstantial evidence was sufficient to establish Doe’s knowledge that the identity of [victim] was that of a real person.” Id. at *3. “This case presents the question, not previously addressed by this Court, of whether evidence of a defendant’s repeated submission of false identifying information as part of successful applications to a government agency is sufficient to permit a reasonable jury to find that the defendant knew that the information belonged to a real person.” Id. at *1.
Held: “We hold that it is and that Doe’s convictions were thus based upon sufficient evidence.” Id.
“This Court holds that the evidence of Doe’s repeated successful use of V's identity in applications subject to scrutiny was sufficient to permit the jury to find that he knew that V was a real person.” Id. at *4.
Of Note: This is a disappointing holding, and the jury instruction – quoted verbatim in the opinion – is likely to be imported in agg ID theft cases. Id. at *4. The theory appears to be a presumption of government competence: a defendant theoretically knows that the government would jump on the use of a fake social security number or birth date in an application for government docs. Thus, using an ID to apply for government docs is circumstantial evidence that the defendant knew the ID was real. Id. at *4 (collecting cases). Unfortunately, this new Ninth rule is also consistent with decisions from the First, Eighth, and Eleventh Circuits. Id.
How to Use: It bears emphasis that the Doe rule is just a “sufficiency” holding: the case doesn’t hold that applications for government docs are per se evidence that the defendant knew the identity belonged to a real person. To the contrary, this is mere circumstantial evidence that is subject to attack. In this case (and in others cited in Doe), the defendant was a foreign national who argued he couldn’t reasonably be pegged with knowledge of how the U.S. government’s identification-certification procedures worked. Id. at *4. While that argument didn’t win the sufficiency-day for Doe, “[h]is not being a citizen, although a resident, of the United States is a fact that the jury could have considered relevant . . . .” Id. (emphasis added). Doe’s inadvertent holding is that the unique history of the defendant, in the context of this circumstantial evidence, is relevant to the subjective question of whether this defendant knew the ID belonged to a real person.
For Further Reading: Doe involved mand-mins and immigration charges –subjects much on our mind, as (future) A.G. Sessions warms up in the batter’s box. For a preview of the Senator’s views, see news release here.
Image of “McLovin” scene from “Superbad,” from http://www.mtv.com/news/1998398/fake-id-bouncers/
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org