Recent Cert. Petition on Aggravated Identity Theft

By Kevin Russell
on Jul 24, 2008 at 10:03 am

On Tuesday, we filed this cert. petition in Flores-Figueroa v. United States.  The petition asks the Court to resolve a 3-3 circuit split over the mens rea requirement of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1).  That statute provides a mandatory 2 year sentence upon anyone who, during and in relation to certain enumberated felonies, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  The question is whether the “knowingly” requirement extends through the entire clause, requiring the Government to show that the defendant knew that the identification he used belonged to another person.  The question arises frequently in immigration cases, when defendants acquire or make up false social security numbers having no idea whether the fabricated number belongs to another person or is simply invalid.

Coincidentally, this morning NPR had a story on the federal government’s increased use of this, and other, criminal charges against undocumented workers.  The piece includes an interview with our co-counsel in Flores-Figueroa, Gary Koos.

 The petition was filed by Howe & Russell, along with Mr. Koos, Akin Gump, and the Stanford Supreme Court Litigation Clinic, with assistance from Howe & Russell summer intern and Stanford student Josh Friedman.