Argument Preview: Flores-Figueroa v. US

Stanford student Daniel Matro previews Flores-Figueroa v. US (08-108).  Please note that Howe & Russell represents the petitioner.

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

In 2000, petitioner Ignacio Flores-Figueroa, a Mexican citizen, used a fake social security number and resident alien card to obtain work at a steel company in East Moline, Illinois. Though the documents bore an assumed name, neither the Social Security number nor the alien registration number on them belonged to a real person. Six years later, Flores-Figueroa acquired counterfeit social security and permanent resident cards in his own name. He presented the new documents to his employer, not knowing whether the numbers on the cards belonged to another person or, like the numbers on his original documents, instead did not belong to anyone. Suspicious, the company contacted federal authorities, who determined that the numbers on the documents had been issued to other actual persons.

After being indicted by a federal grand jury in early 2006, Flores-Figueroa pled guilty to two counts of misuse of immigration documents and one count of illegal entry into the United States. He pled not guilty, however, to two additional charges of aggravated identity theft under 18 U.S.C. § 1028A. At the close of evidence, Flores-Figueroa moved for a judgment of acquittal on the aggravated identity theft charges, arguing that the Government had not established that he knew that the social security and permanent resident numbers he used belonged to other people. The district court denied the motion, agreeing with the Government that such proof was not required under the statute. The district court sentenced Flores-Figueroa to a total of 75 months in prison: 51 months for the predicate offenses and an additional mandatory two-year sentence for aggravated identity theft.

On appeal, the Eighth Circuit affirmed, relying on its recent decision in United States v. Mendoza-Gonzalez, which had rejected the same challenge to the Government’s interpretation of § 1028A(a)(1).

Petition for Certiorari

Flores-Figueroa filed a petition for certiorari, which was granted on October 20, 2008.

Flores-Figueroa’s petition advanced several arguments. First, he argued that the Court’s intervention was necessary to resolve a growing circuit split on the question presented. Three courts of appeals – the First, Ninth, and D.C. Circuits – had previously held that the knowledge requirement of § 1028A(a)(1) extended to the “of another person” element of the offense, requiring the Government to prove that the defendant knew he was using a means of identification that belonged to another person. By contrast, the Fourth, Eighth, and Eleventh, Circuits had reached the opposite conclusion.

Flores-Figueroa further argued that this circuit conflict was considered, mature, and ripe for resolution. Each of the circuits had carefully considered the question presented and wrestled with the same basic arguments. The courts had acknowledged each other’s holdings and reasoning, but had been unable to agree on the meaning of the statute. Given the thoroughness of the circuit opinions on the issue, Flores-Figueroa suggested, further percolation would serve no purpose.

Flores-Figueroa also emphasized the importance of the question and the frequency with which it arises, noting that in 2005, the FBI had 1,600 open investigations into identity theft. Moreover, the division of authority on the question is unfair and untenable, because individuals committing precisely the same acts are currently subject to significantly different sentences depending on accidents of geography.

Flores-Figueroa next argued that his case presents an ideal vehicle for resolution of the circuit split: the statutory question was the principal basis for dispute in the district court and the sole question presented on appeal; the facts are undisputed; and the question is outcome determinative.

Lastly, Flores-Figueroa devoted a significant portion of his petition to attacking the Eighth Circuit’s decision on the merits, which he characterized as conflicting with the best reading of the statute and violating the rule of lenity.

In its brief in opposition, the United States agreed that the case “presents an important and recurring issue that warrants this Court’s review” in light of the “clear and entrenched conflict among the court of appeals” on the question presented. But the government urged the Court to grant the earlier-filed petition for certiorari in Mendoza-Gonzalez, and to hold the petition in this case pending its decision in Mendoza-Gonzalez.

In his reply brief, Flores-Figueroa countered that the Government had offered no “jurisprudential or discretionary reason for preferring plenary review” in Mendoza-Gonzalez over his case. In his view, when “choosing between two cases presenting the same certworthy question,” the Court should consider not simply which petition was filed first but which case is more likely to provide “the best and most comprehensive presentation of the legal arguments.” That consideration, Flores-Figueroa suggested, favored review in his case, because his petition raised a number of significant arguments not made by the petitioner in Mendoza-Gonzalez, and to which the Government has provided no response.

Merits Briefing

In his brief on the merits, Flores-Figueroa argues that the most natural reading of § 1028A(a)(1) is that the provision’s knowledge requirement extends to “of another person.” He begins with several sample sentences to demonstrate that, in common usage, a state-of-mind adverb like “knowingly” is generally understood to apply not only to adjacent verbs, as the Eighth Circuit held, but also to any direct object that may follow. Once the knowledge requirement is “emancipated” from modifying only the verbs, Flores-Figueroa contends, there is no grammatical justification for concluding that it suddenly stops after “means of identification” and before “of another person.”

Flores-Figueroa also points to the language of a nearby provision, § 1028A(a)(2), which imposes a five-year sentence on anyone who, during and in relation to certain terrorism-related offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document.” In his view, the Government’s concession in another case that § 1028A(a)(2)’s knowledge requirement extends to the phrase “false identification document” implies one of two untenable propositions: either the knowledge requirement in § 1028A(a)(2) “hopscotches” the provision’s various elements, or the knowledge requirement applies to “of another person” in the terrorism offense provision but not the nearly identically worded provision that immediately precedes it.

Flores-Figueroa argues that his textual reading is consistent with both the traditional understanding of theft and longstanding presumptions about the scope of mens rea requirements in criminal statutes. Drawing on United States v. Morissette and various common law sources, Flores-Figueroa insists that an essential element of “theft” is the knowledge that the stolen property belongs to someone else. The legislative history of § 1028A, he suggests, shows that Congress had this defining aspect of theft in mind. In addition, there is no evidence Congress intended to depart from the background presumption, expressed in several Supreme Court cases and codified in the Model Penal Code, that – absent clear evidence of contrary intent – criminal statutes will be read to require that the defendant know the facts that make his conduct illegal.

Flores-Figueroa further argues that his reading is consistent with the purposes behind the statute in that it reserves the severe punishment of § 1028A(a)(1) for the most serious offenses and distinguishes between identity fraud and identity theft. He also contends that the goals of protecting victims or facilitating prosecutions, which figured heavily in the Eighth Circuit’s analysis, cannot overcome the problems with that court’s textual interpretation.

Finally, Flores-Figueroa argues that, to the extent there is any textual ambiguity, nothing in the structure, legislative history, or purposes of the statute resolves it, and therefore the rule of lenity applies. In his view, application of the rule is especially appropriate in the context of mandatory sentencing provisions.

In its brief on the merits, the United States argues that the most natural grammatical reading of the provision is that “knowingly” applies only to the verbs that immediately follow it. Flores-Figueroa’s examples to the contrary are unavailing, the government suggests, because “[c]ommon usage (based on a handful of carefully selected examples) cannot generate rules of construction that supplant grammar.” Moreover, the position of the phrase “without lawful authority,” directly following the verbs and set off by commas, constitutes a structural cue which confirms that the knowledge requirement extends no further than the verbs.

Adopting Flores-Figueroa’s interpretation of § 1028A(a)(1), the government next argues, would “create a serious surplusage problem with respect to the almost identically worded Section 1028A(a)(2).” Specifically, reading “knowingly” to reach “of another person” would render that phrase superfluous in § 1028A(a)(2), because a “person who knowingly transfers a means of identification without lawful authority must necessarily know that the identification either belongs to another person or that it is false; there are no other choices.”

In addition to creating a surplusage problem, the government argues, Flores-Figueroa’s interpretation would frustrate the statute’s primary purpose of enhancing protections for victims. In the government’s view, § 1028A(a)(1) is a “victim-focused statute”: what distinguishes aggravated identity theft from mere identity fraud is the presence of a real victim, not the perpetrator’s state of mind. Congress recognized that the use of a real person’s identifying information to facilitate a predicate felony poses an increased risk of harm to the victim, and chose to place on the wrongdoer the burden of inquiry and the risk that the means of identification might belong to a real person.

The government also insists that the use of the word “theft” in the statute’s title and legislative history does not change the analysis. The term “theft,” it argues, did not have any clearly established meaning at common law. Moreover, the term is nowhere used in the statute’s operative text, which creates an offense that is different from common-law larceny in many ways.

The government likewise rejects Flores-Figueroa’s contention that a background presumption in favor of scienter applies in this case. That presumption requires courts to read into a statute only that mens rea which is necessary to avoid criminalizing otherwise innocent conduct. According to the government, no such concern would justify extending “knowingly” to “of another person” in § 1028A(a)(1). The provision applies only to those who use a means of identification to facilitate an underlying predicate felony, and therefore “does not demarcate a line between legally innocent and criminally culpable conduct.” The government also disputes that there is a longstanding presumption that mens rea requirements apply to all facts that make the defendant’s conduct unlawful. Such a presumption, it argues, would conflict with Supreme Court precedent and “would also risk disruption of a great deal of well-settled authority with respect to the construction of other federal criminal statutes.”

Finally, the government argues that the rule of lenity is inapplicable because there is no grievous ambiguity that would justify resort to it.

In his reply brief, Flores-Figueroa provides a slew of examples to demonstrate that a state-of-mind adverb is commonly understood to reach not only verbs, as the government suggests, but also the direct object. He notes that neither the government nor any of its amici has offered a single counter-example that supports its position. In addition, he argues that the commas setting off the phrase “without lawful authority” do not constitute a structural barrier to extending the knowledge requirement. Rather, the first comma signals an interruption in the flow of the sentence, which resumes immediately following the second comma ending the interruption.

Flores-Figueroa rejects the government’s fallback positions as well. The first– that “knowingly” extends to the phrase “without lawful” authority – has no more basis in the text than the government’s preferred interpretation. And the second – that “knowingly” extends to the words “means of identification” but stops before “of another person” – is the least textually tenable construction of all. Neither interpretation finds any support in common English usage.

Flores-Figueroa also argues that it is the government’s interpretation, not his, which creates a surplusage problem. The government’s surplusage argument, he contends, rests on the mistaken assumption that a means of identification which is used without lawful authority must either belong to another person or be a false identification document. In fact, he points out, the term “means of identification” is significantly broader than “identification document,” and therefore requiring the government to prove the defendant’s knowledge with respect to each element of a § 1028A(a)(2) offense creates no surplusage problem. By contrast, he argues, the government’s interpretation creates a genuine surplusage problem because, by limiting “knowingly” to the provision’s verbs, it limits the function of the knowledge requirement to simply weeding out any transfer, possession, or use that is accidental. But that function is already served by the statute’s requirement that the defendant’s use facilitate, or have the potential to facilitate, a predicate offense.

Flores-Figueroa also defends his earlier arguments that the traditional understanding of theft, the purposes of the statute, and longstanding presumptions about the scope of mens rea requirements all support his reading of the statute. First, he attempts to rebut the government’s suggestion that the term “theft” had no set common law meaning. Second, he disputes the government’s contention that the statute’s victim-focused purpose justifies reading its mens rea requirement narrowly. He argues that all criminal statutes are victim-focused, and that nevertheless, our legal tradition calibrates punishment to culpability, absent clear evidence of contrary legislative intent. Whereas the government’s reading risks arbitrary results that Congress could not have intended, his reading ensures that the identity thieves Congress had in mind in passing the statute are punished. Third, Flores-Figueroa rejects the government’s claim that courts must give a mens rea element only the breadth necessary to avoid criminalizing innocent conduct. That rule, he contends, applies only when the statute contains no mens rea requirement at all. When a mens rea element is present, he argues, courts traditionally construe it broadly to avoid giving a statute unintended breadth. This is true even when a statute applies only to individuals who are not wholly innocent and the question is who among those offenders deserves additional punishment.

Finally, Flores-Figueroa again turns to the rule of lenity. The text, structure, and history of the statute do not establish that the government’s interpretation is unambiguously correct, he argues, and therefore the ambiguity should be resolved in favor of the defendant.