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

.

Case o' The Week: "Dead or Alive" - Agg ID Theft in the West: Maciel-Alcala

Players: Hard-fought case by CD Cal AFPD Alexandra W. Yates. Decision by Judge Wardlaw, joined by Judges Canby and Callahan.

Facts: Maciel was a Mexican citizen living in the U.S., under the stolen identity of Ramirez (a real human being). Id. at *1. Maciel didn’t know Ramirez. Id. Maciel used Ramirez’s identity to buy things, rent an apartment, and get loans and open cell phone accounts. Id. He also used the Ramirez identity to get identification documents. Id. One of those identification documents was a passport which Maciel used when returning from Mexico – triggering his arrest. Id.

Among other charges Maciel was indicted for agg identity theft (each count of which carries a two-year mandatory-minimum consecutive term). After his Rule 29 motion was denied, he was convicted in a bench trial. Id. at *2.

Issue(s): At trial “Maciel moved for a judgement of acquittal, contending that the government was required to prove that Maciel knew that Ramon Ramirez was a living person when he obtained Ramirez’s birth certificate and used it to obtain the passport. The district court denied the motion, and Maciel appeals.” Id. at *1. “We . . . must determine whether the word ‘person’ as used in § 1028A includes the living and the dead or whether Congress intended that the government must prove the defendant used the identification of a person he knew at the time was alive.” Id. at *2 (emphasis added).

Held: “Because we agree with the district court that the scienter element of 18 U.S.C. § 1028A requires that the government prove only that Maciel knew that Ramirez was a real person, living or deceased, when he procured the passport using Ramirez’s birth certificate, we affirm.” Id. at *1 (emphasis added).

Of Note: Judge Wardlaw undertakes an admittedly extensive statutory analysis in Maciel-Acala and concludes that conflicts within identity statutes that would arise from the defense interpretation must mean that Congress intended that a “person” is someone either living, or dead. Id. at *2 - *7. She concedes, however, real ambiguity in the term – and our guru and fellow blogger Steve Sady has taught us that ambiguity means the Rule of Lenity.

The ROL, however, gets short shrift in Maciel: the opinion dismisses it in two paragraphs, quoting language that the statute must be “grievously ambiguous” for the Rule of Lenity to apply. Id. at *8. As much as we admire Judge Wardlaw, we respectfully disagree with this particular holding. Notably, the exact same statute was ambiguous enough to trigger the Rule of Lenity in an earlier Ninth Circuit decision by Judge Silverman. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008). Granted, Miranda-Lopez referred to another word in § 1028A (“knowingly”), but that term doesn’t seem anymore “grievously ambiguous” than the statute’s use of the term, “person.” Notably, Judge Silverman’s analysis was later vindicated in the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).

How to Use: Three Circuits have considered this “dead or alive” issue: the First, Eighth, and Ninth. Id. at *5. So far we’re 0-3. Nonetheless, this may be a “live” issue in an agg ID case that is going to trial anyway, to preserve for possible Supreme Court review. After all, the Flores-Figueroa case involved a 3-3 split. 129 S. Ct. at 1889-90. Who knows how the next three Circuits will swing?

For Further Reading: How long are aggravated identity theft sentences? 309 years, in one recent case (with some other charges thrown in for good measure). See article here.

(Although the defendant, Mr. Thompson, will get 46 years off with the “good time” reduction . . .)

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


Image of Steve McQueen from "Dead or Alive," from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjoOGfX_qQ4EKYGqh6ODgiwctqM-N6IDiVUdAJf4VahyphenhyphenyzbLQx51o8iWBwWYT-9JyNYFZcvLTOGhQHdWBRmYMJmM8py0Pwu3HU22s40lxarHQUeEtYZUqTMKRtIQnPNscLr1aTR/s400/wanted_dead_or_alive_1.jpg.

.

Case o' The Week: Forged Signature Now "Aggravated Identity Theft" in Ninth, Blixt

What's in a name? A mandatory-minimum twenty-four month federal sentence, consecutive, thanks to a very troubling decision by Judge Johnnie Rawlinson (left). United States v. Blixt, __ F.3d __, 2008 WL 5003239 (9th Cir. Nov. 26, 2008) (decision available here).

Players: Decision by Judge Rawlinson, joined by Judge Graber and visiting CD Cal District Judge Wright II.

Facts: Blixt forged her boss’s signature on checks made out to herself. Id. at *1. At trial, she unsuccessfully objected to jury instructions that equated a forged signature with a “means of identification” for 18 USC § 1028A (the “aggravated identity theft” statute, which carries a two-year consecutive mandatory minimum). Id. at *2. She also raised the issue in a Rule 29 motion. Id. at *2. Blixt was convicted, sentenced to forty-eight months, and appealed. Id.

Issue(s): “Blixt contends that the district court erred as a matter of law when it ruled that a signature is a name for purposes of [the] Aggravated Identity Theft statute . . . . Blixt asserts that she did not use another's name, she merely forged a signature, and because a forged signature is not separately identified as a “means of identification” under § 1028A, her actions did not violate the statute.” Id. at *3 (internal quotations omitted) (emphases added).

Held: “Whether the use of another’s signature constitutes a ‘means of identification’ for purposes of the Aggravated Identity Theft statute has not yet been resolved by this or any other circuit. Finding no prior authority on the issue, we hold as a matter of first impression that forging another's signature constitutes the use of that person's name and thus qualifies as a “means of identification” under 18 U.S.C. § 1028A.” Id.

Of Note: In Blixt, Judge Rawlinson jumps the Ninth out in front of all federal circuits to create a brand new rule (and a particularly bad one at that). Section 1028A of Title 18 is the (relatively) new “aggravated identity theft” statute, that tacks a two-year mandatory minimum sentence on top of the sentence for, for example, mail fraud charges. Like 21 USC § 851, Section 1028A is a mandatory-minimum statute that has been thoroughly abused by prosecutors to coerce unfair dispositions or discourage motions or trials – one notable example in the Northern District of California had an AUSA threatening to stack § 1028A counts to create a double-digit mandatory minimum sentence in a routine fraud case.

Blixt (another lamentable Montana case) has the Ninth expanding criminal liability for Section 1028A by converting the state crime of forgery, into the federal crime of identity theft. Here’s the new rule: now you don’t need a fake I.D., stolen routing numbers, or hacked identity codes – just scrawl someone else’s signature and it’s a two-year mand-min federal crime for "aggravated" identity theft!

Contrast Blixt to Judge Silverman's recent decision in Miranda-Lopez, where the Ninth held that the Rule of Lenity required that this terrible statute requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, 532 F.3d 1034 (9th Cir. 2008), blog here.

Hard to reconcile the spirits of Blixt and Miranda-Lopez. Blixt merits en banc review – this brand new federal rule will allow AUSAs to convert routine state forgery cases into stacked two-year mandatory minimum charges. The decision flatly ignores the Rule of Lenity, and offers little analysis for its dramatic expansion of criminal liability for these mandatory-minimum charges. If it survives, Blixt will spark a split – and the Ninth will find itself on the wrong side.

How to Use: While challenges to Blixt are underway, remember this red flag:

If you have a forged signature in a federal case, read the outline mentioned below and ask if the forged signature is “in relation to” a felony enumerated in Section 1028A(c). If so, re-evaluate the cost-benefit analysis of motions or trial – a superseding § 1028A count or two can dramatically change the exposure of an otherwise minor case.

For Further Reading: We’ve previously plugged Boston AFPD Martin Richey’s excellent outline on identity theft: here’s another pitch for it as well as a link.

Image of Judge Johnnie Rawlinson from http://www.pepperdine.edu/pr/releases/2007/may/solgrad07.htm

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


.

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 http://www.law.asu.edu/?id=1218

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


.